48 CFR 5152.245-9001 48 CFR Ch. 52 (10-1-91 Edition)
48 CFR 5152.245-9001 Department of the Navy
48 CFR 5152.245-9001 CHAPTER 52 -- DEPARTMENT OF THE NAVY ACQUISITION REGULATIONS
48 CFR 5152.245-9001 (Parts 5200 to 5299)
Part
Page
5215 Contracting by negotiation
5242 Contract administration
5252 Solicitation provisions and contract clauses
48 CFR 5152.245-9001
48 CFR 5152.245-9001 48 CFR Ch. 52 (10-1-91 Edition)
48 CFR 5152.245-9001 Department of the Navy
48 CFR 5152.245-9001 PART 5215 -- CONTRACTING BY NEGOTIATION
48 CFR 5152.245-9001 Subpart 5215.4 -- Solicitation and Receipt of
Proposals and Quotations
Sec.
5215.402 General.
5215.407 Solicitation provisions.
48 CFR 5152.245-9001 Subpart 5215.6 -- Source Selection
5215.605 Evaluation factors.
5215.608 Proposal evaluation.
48 CFR 5152.245-9001 Subpart 5215.8 -- Price Negotiation
5215.804-3 Exemptions from or waiver of submission of certified cost
or pricing data.
Authority: 5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35.
Source: 53 FR 16280, May 6, 1988, unless otherwise noted.
48 CFR 5152.245-9001 Subpart 5215.4 -- Solicitation and Receipt of Proposals and Quotations
48 CFR 5215.402 General.
(a) Competition is the cornerstone of Navy acquisition policy. As
such, the preferred and predominant method of pricing in the Navy is
through the use of competition, without the need for cost or pricing
data and cost analysis. The Navy has found that not only does
competition generate more favorable prices, but significant time and
effort can be saved by relying on the forces of competition to establish
prices, as opposed to the use of detailed cost analysis. This approach
is not only consistent with the Competition in Contracting Act (CICA),
but it affords the opportunity for significant efficiencies and
reduction of procurement leadtime as a result of minimizing the
requirement for cost or pricing data and associated audit reports. As
competition is increasingly relied upon and the need for cost or pricing
data is reduced, there may be a corresponding requirement for performing
a cost realism evaluation for many competitive procurements to guard
against unrealistically low prices which can lead to quality
deficiencies, late deliveries, performance shortfalls, and cost
overruns. In performing cost realism evaluation, only the minimum
selected data to perform the cost realism evaluation is to be obtained,
as opposed to full cost or pricing data which would be required when it
is necessary to perform cost-based negotiations, such as in the case of
sole source negotiations.
48 CFR 5215.407 Solicitation provisions.
(S-90) During acquisition planning, an assessment shall be made as to
the likelihood that adequate price competition will exist. If it is
anticipated that an award will be based on adequate price competition,
the solicitation shall include the provision at 5252.215-9000. If the
procurement schedule is critical, this provision with its Alternate I
shall be used so that there will be a minimum delay in the event that
adequate price competition does not materialize and it is necessary to
obtain cost or pricing data. Contracting officers must be judicious in
the use of the Alternate I provision, as it may cause offerors to incur
certain costs in preparing standby cost or pricing data in anticipation
that it may be subsequently requested.
48 CFR 5215.407 Subpart 5215.6 -- Source Selection
48 CFR 5215.605 Evaluation factors.
(S-90)(1) When a cost realism evaluation will be performed, the
source selection evaluation criteria shall include a notice that the
proposed costs may be adjusted, for purposes of evaluation, based upon
the results of the cost realism evaluation.
(2) Technical criteria may include quality standards that are based
on either a minimally acceptable approach or a cost/benefit approach.
When the quality desired is that necessary to meet minimum needs,
proposals should be evaluated for acceptability and award made to the
lowest priced, technically acceptable offer. When the quality desired
is the highest affordable or that representing the best value, proposals
should be evaluated on a cost/benefit basis that would permit an award
based on paying appropriate premiums for measured increments of quality.
When a cost/benefit approach is used, cost must carry a weight of not
less than 40% unless thoroughly justified.
(3) Cost realism evaluation. (i) Cost realism evaluation involves a
summary level review of the cost portion (excluding profit/fee) of the
offerors' proposals to determine if the overall costs proposed are
realistic for the work to be performed. Cost realism evaluation differs
from the detailed cost analysis usually undertaken in a noncompetitive
procurement to determine the reasonableness of the various cost elements
and profit/fee to arrive at a fair and reasonable price. Data submitted
only for cost realism evaluation generally will not be certified.
(ii) The purpose of cost realism evaluation is to: (A) Verify the
offeror's understanding of the requirements; (B) assess the degree to
which the cost/price proposal reflects the approaches and/or risk
assessments made in the technical proposal as well as the risk that the
offeror will provide the supplies or services for the offered
prices/costs; and (C) assess the degree to which the cost included in
the cost/price proposal accurately represents the work effort included
in the technical proposal.
(iii) Some examples of data and information that may be obtained to
perform cost realism evaluation are: (A) Manloading (quantity and mix
of labor hours); (B) engineering, labor and overhead rates; and (C)
make or buy plans. A price analysis approach where there is adequate
price history may also be a suitable and efficient means to evaluate
cost realism. The amount of data required will be dependent upon the
complexity of the procurement and the data already obtained by the
contracting officer (e.g. information on recent Forward Pricing Rate
Agreements (FPRAs)).
(iv) Cost realism evaluation generally will be performed as a part of
the proposal evaluation process (see 5215.605) for all competitive
solicitations where a cost reimbursement contract is contemplated. For
competitive solicitations contemplating a fixed price, labor hour, or
time and material type contract, a cost realism evaluation would be the
exception and not the rule, although its use may be appropriate where
the proposal evaluation process will encompass both a cost/price
evaluation and a technical evaluation. Also, where the contracting
officer suspects a ''buy-in'' (see FAR 3.501) or a misunderstanding of
the requirements as a result of reviewing the initial offers, data and
information should be obtained and a cost realism evaluation performed.
(v) When cost realism data are required, the contracting officer
shall not request a formal field pricing report but rather, shall
request a review of only those specific areas of information necessary
to allow the contracting officer to perform a cost realism evaluation.
For example, the contracting officer may only need to know the current
or FPRA labor and/or overhead rates. In these instances, the request
for information from DCAA may be oral or written.
48 CFR 5215.608 Proposal evaluation.
(a) When a cost realism evaluation will be performed in accordance
with 5215.605(S-90), the resulting realistic cost estimate shall be used
in the evaluation of cost.
48 CFR 5215.608 Subpart 5215.8 -- Price Negotiation
48 CFR 5215.804-3 Exemptions from or waiver of submission of certified
cost or pricing data.
(a) General. As explained in 5215.402, cost or pricing data would
not normally be obtained because the predominant portion of Navy
procurements are awarded on the basis of adequate price competition.
(b)(1)(iii) Adequate price competition may also exist where price is
a secondary factor in the evaluation of proposals, as long as price is a
substantial factor. Price, as used herein, means cost plus any fee or
profit applicable to the contract price. Thus, in competitive
acquisitions where adequate price competition is contemplated, the
contracting officer shall not require the submission of cost or pricing
data whether certified or not, as defined in FAR 15.801, regardless of
the type of contract.
(b)(3) Examples of contract awards for which prices may be based on
adequate price competition and/or to have been established by adequate
price competition are:
(i) Contracts for items for which there are a limited number of
sources and the prices at which award will be made are within a
reasonable amount of each other and compare favorably with independent
Government estimates and with prior prices paid;
(ii) Any contract, including cost-type contracts, when cost is a
significant evaluation factor; and
(iii) Contracts for which there are dual sources.
48 CFR 5215.804-3 PART 5242 -- CONTRACT ADMINISTRATION
Authority: 5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35
Source: 51 FR 46671, Dec. 24, 1986, unless otherwise noted.
48 CFR 5215.804-3 Subpart 5242.90 -- Refunds Requirements (Spares and Support Equipment)
48 CFR 5242.9000 Requests for refunds.
(a) Policy. (1) This subpart establishes uniform policy and
procedures on requesting refunds for spare parts or items of support
equipment. This policy is not intended to diminish the responsibility
of Navy contracting personnel to properly price spare parts and items of
support equipment. Further, it is not intended to serve as a mechanism
for the recovery of excess profits.
(2) In accordance with the guidance set forth in paragraph (c) of
this section, contracting activities shall request a refund whenever the
contract price of any spare part or item of support equipment
significantly exceeds the item's intrinsic value as defined in the
clause at 5252.242-9000. Refunds shall be requested only for the
difference between the intrinsic value of the item at the time an
agreement on price was reached and the contract price. Refunds will not
be requested to recoup the amount of cost decreases that occur over time
due to productivity gains (beyond economic quantity considerations) or
changes in market conditions.
(b) Examples. The following are examples of circumstances which may
establish a basis for a refund request or pricing adjustment:
(1) A technical or engineering analysis results in a determination
that the intrinsic value is significantly lower than the historical
price.
(2) The price paid for an item bought competitively in similar
quantity and circumstances (e.g., urgency, delivery terms) is
significantly less than the former sole source price.
(3) Prices paid to the manufacturer of an item indicate the amount
previously charged by the prime contractor for the item significantly
exceeded the intrinsic value of the prime contractor's efforts in
providing the item.
(c) Solicitation provisions. The contracting officer shall insert
the clause at 5252.242-9000 in solicitations, Basic Ordering Agreements,
and contracts (as defined in FAR 2.101) which contain or may contain
requirements for spare parts or items of support equipment, except those
contracts awarded as a result of competitive small purchase procedures
and orders under federal supply schedules. If added to existing
contracts, the clause will not apply to items or components ordered by
the Government prior to the date of incorporation of the clause into the
contract. Heads of Contracting Activities (HCAs) are delegated, without
power of redelegation, authority to establish monetary thresholds below
which refunds will not be requested.
48 CFR 5242.9000 PART 5252 -- SOLICITATION PROVISIONS AND CONTRACT CLAUSES
48 CFR 5242.9000 Subpart 5252.2 -- Texts of Provisions and Clauses
5252.215-9000 Submission of cost or pricing data.
5252.242-9000 Refunds.
Authority: 5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35
Source: 53 FR 16282, May 6, 1988, unless otherwise noted.
48 CFR 5242.9000 Subpart 5252.2 -- Texts of Provisions and Clauses
48 CFR 5252.215-9000 Submission of cost or pricing data.
As prescribed at 5215.407, insert the following provision:
(a) It is expected that this contract will be awarded based upon a
determination that there is adequate price competition; therefore, the
offeror is not required to submit or certify cost or pricing data (SF
1411) with its proposal.
(b) If, after receipt of the proposals, the contracting officer
determines that adequate price competition does not exist in accordance
with FAR 15.804-3, the offeror shall provide certified cost or pricing
data as requested by the contracting officer.
As prescribed at 5215.407, substitute the following paragraph (b):
(b) If, after receipt of the proposals, the contracting officer
determines that adequate price competition does not exist, the offeror
shall provide certified cost or pricing data as requested by the
contracting officer. The offeror shall provide the requested data
within /1/ calendar days from the date of the contracting officer's
request.
/1/ To be completed by the contracting officer.
48 CFR 5252.242-9000 Refunds.
As prescribed in 5242.9000 insert the following clause:
(a) In the event that the price of a spare part or item of support
equipment delivered under this contract significantly exceeds its
intrinsic value, the contractor agrees to refund the difference.
Refunds will only be made for the difference between the intrinsic value
of the item at the time an agreement on price was reached and the
contract price. Refunds will not be made to recoup the amount of cost
decreases that occur over time due to productivity gains (beyond
economic purchase quantity considerations) or changes in market
conditions.
(b) For purposes of this clause, the intrinsic value of an item is
defined as follows:
(1) If the item is one which is sold, or is substantially similar or
functionally equivalent to one that is sold in substantial quantities to
the general public, intrinsic value is the established catalog or market
price, plus the value of any unique requirements, including delivery
terms, inspection, packaging, or labeling.
(2) If there is no comparable item sold in substantial quantities to
the general public, intrinsic value is defined as the price an
individual would expect to pay for the item based upon an economic
quantity as defined in FAR 52.207-4, plus the value of any unique
requirements, including delivery terms, inspection, packaging, or
labeling.
(c) At any time up to two years after delivery of a space part or
item of support equipment, the contracting officer may notify the
contractor that based on all information available at the time of the
notice, the price of the part or item apparently exceeds its intrinsic
value.
(d) If notified in accordance with paragraph (c) of this clause, the
contractor agrees to enter into good faith negotiations with the
Government to determine if, and in what amount, the Government is
entitled to a refund.
(e) If agreement pursuant to paragraph (d) of this clause, cannot be
reached, and the Navy's return of the new or unused item to the
contractor is practical, the Navy, subject to the contractor's
agreement, may elect to return the item to the contractor. Upon return
of the item to its original point of government acceptance, the
contractor shall refund in full the price paid. If no agreement
pursuant to paragraph (d) of this clause is reached, and return of the
item by the Navy is impractical, the contracting officer may, with the
approval of the Head of the Contracting Activity, issue a contracting
officer's final decision on the matter, subject to contractor appeal as
provided in the Disputes clause.
(f) The contractor will make refunds, as required under this clause,
in accordance with instructions from the contracting officer.
(g) The contractor shall not be liable for a refund if the contractor
advised the contracting officer in a timely manner that the price it
would propose for a spare part or item of support equipment exceeded its
intrinsic value, and with such advice, specified the estimated proposed
price, the estimated intrinsic value, and known alternative sources or
items, if any, that can meet the requirement.
(h) This clause does not apply to any spare parts or items of support
equipment whose price is determined through adequate price competition.
This clause also does not apply to any spare part or item of support
equipment with a unit price in excess of $100,000; or in excess of
$25,000 if the contractor submitted, and certified the currency,
accuracy and completeness of, cost or pricing data applicable to the
item.
48 CFR 5252.242-9000 48 CFR Ch. 53 (10-1-91 Edition)
48 CFR 5252.242-9000 Department of the Air Force
48 CFR 5252.242-9000 CHAPTER 53 -- DEPARTMENT OF THE AIR FORCE FEDERAL ACQUISITION REGULATION SUPPLEMENT
48 CFR 5252.242-9000 (Parts 5300 to 5399)
Part
Page
5315 Contracting by negotiation
5316 Types of contracts
48 CFR 5252.242-9000
48 CFR 5252.242-9000 SUBCHAPTER G -- CONTRACT MANAGEMENT
5350 Extraordinary contractual actions
48 CFR 5252.242-9000
48 CFR 5252.242-9000 48 CFR Ch. 53 (10-1-91 Edition)
48 CFR 5252.242-9000 Department of the Air Force
48 CFR 5252.242-9000 PART 5315 -- CONTRACTING BY NEGOTIATION
48 CFR 5252.242-9000 Subpart 5315.8 -- Price Negotiation
Sec.
5315.890 Formula pricing agreements (FPA).
5315.890-1 Description.
5315.890-2 Policy.
5315.890-3 Responsibilities.
5315.890-4 FPAs negotiated by other DOD agencies.
Authority: 5 U.S.C. 301 and FAR 1.301.
Source: 52 FR 12414, Apr. 16, 1987, unless otherwise noted.
48 CFR 5252.242-9000 Subpart 5315.8 -- Price Negotiation
5315.890 Formula pricing agreements (FPA).
48 CFR 5315.890-1 Description.
Formula pricing agreements (FPAs), sometimes referred to as spare
parts pricing agreements, set forth a pricing methodology and the
specific rates and factors to be used when pricing items covered by the
FPA. An FPA differs from a Forward Pricing Rate Agreement (FPRA) in
that an FPA addresses a pricing methodology limited to a specific group
of items and its use by different buying activities is optional;
whereas FPRAs are generally limited to agreements on individual rates or
factors (including Cost Estimating Relationships (CERs)), apply to many
items, and are required to be used by all buying activities. Any
pricing agreement made with a contractor shall be considered to be an
FPA if it contains the following features:
(a) The agreement governs the pricing methodology of more than one
future contract action and identifies the category(s) of purchases to be
covered (for example, F-100 replenishment spares).
(b) The pricing agreement is expressed in terms which specify the
direct cost inputs and the rates and/or factors to be applied to
identified bases plus profit or fee.
48 CFR 5315.890-2 Policy.
FPAs should be established as necessary to ease negotiation of large
numbers of contract actions and reduce administrative costs and lead
time. However, FPAs shall only be negotiated with contractors having a
significant volume of Government business and application normally shall
be limited to acquisitions under $100,000. FPAs anticipating individual
acquisitions over $100,000, shall be approved by the HCA and shall
specifically establish the maximum dollar amount for an acquisition
priced using the FPA. Proposals received above $100,000 must be
submitted with an SF 1411 and a certificate of current cost or pricing
data. All FPAs shall --
(a) Be in writing and signed by a contracting officer;
(b) Only be negotiated with contractors who are under Government
in-plant contract administration cognizance and have a resident DCAA
auditor. (This requirement may be waived with HCA approval);
(c) Not cover cost elements, such as those portions of direct labor
and material costs which require discrete estimating and analysis;
(d) Identify all rates/factors that are a part of the FPA; however,
the FPA may reference a FPRA(s) as long as the agreement prescribes the
effect and treatment of changes in the FPRA;
(e) Provide specific terms and conditions covering expiration date,
application, and data requirements (e.g. actual cost data) for
systematic monitoring to assure the continuing validity of the
agreement;
(f) Provide for cancellation at the option of either party;
(g) Require the contractor to submit to the contracting officer, and
to the cognizant contract auditor, any significant change in cost or
pricing data, estimating system, or accounting system and its impact on
the FPA;
(h) Require the contractor to identify the FPA and the date of the
latest certification of cost or pricing data supporting the FPA in each
specific pricing proposal where the formula is used. The contractor
shall also be required to identify those items that were not priced with
the formula if they are commingled in a proposal that contains items
priced with the formula;
(i) Provide that the FPA shall not be used if the contractor's
purchasing, estimating, or accounting system are disapproved by the
Government;
(j) Provide that the contracting officer, or designated
representative, may perform detailed cost or price analysis on random
samples of proposed items and/or those items that have units which are
significantly higher than previous buys;
(k) Be supported by certified cost or pricing data in accordance with
FAR 15.804, including the submission of a signed certificate of current
cost or pricing data at the time agreement is reached on the FPA (and on
an annual basis thereafter), and shall provide that contractual
documents for items priced using the FPA, shall include the clause at
FAR 52.215-22, ''Price Reduction for Defective Cost or Pricing Data;''
(l) Provide that the price of individual contract actions priced
under the FPA shall be adjusted if --
(1) It is found that the cost or pricing data supporting the FPA was
not accurate, current, or complete;
(2) The contractor fails to comply with 5315.890-2(g); or
(3) The price was developed through incorrect application of the FPA;
(m) Provide that individual contract actions priced using the FPA
shall contain a clause incorporating the FPA by reference; and
(n) Be based on a pricing methodology that ensures that unit prices
are in proportion to the item's base cost (see FAR 15.812).
48 CFR 5315.890-3 Responsibilities.
(a) Major commands shall --
(1) Establish appropriate approval level for FPAs;
(2) Maintain a list of FPAs which identifies the company and group of
items to be purchased;
(3) Conduct periodic reviews of FPAs and contract actions priced
using FPAs; and
(4) Establish agreements with other DOD agency contract
administration offices to provide field pricing support, negotiation
support, and administrative support of Air Force negotiated FPAs.
(b) Air Force contract administration offices shall --
(1) Comply with the requirements of 5315.890-3(c) for those FPAs
negotiated by the administrative contracting officer (ACO) for their own
use;
(2) Make any FPA negotiated by the ACO available to any other buying
activity for their use;
(3) Provide field pricing support to contracting officers in the
evaluation of FPAs;
(4) Participate in the negotiation of FPAs;
(5) Notify the contracting officer, who negotiated the FPA, when
conditions arise that may affect the FPA's validity; for example,
changes to an FPRA, disapproval of a contractor's purchasing system, and
so forth. When appropriate, recommend the FPA be cancelled and
renegotiated;
(6) Periodically validate the contractor's compliance with the FPA;
and
(7) Monitor rates and factors incorporated into each FPA.
(c) Contracting officers shall --
(1) Be responsible for the negotiation of the FPA and ensure that it
complies with the requirements contained in 5315.890-2 (this
responsibility may be delegated to the ACO);
(2) Obtain field pricing support, including contract audit and
technical reviews, in the evaluation of FPAs;
(3) Prepare a price negotiation memorandum covering the pricing
factors used in the FPA;
(4) Request CAO participation in negotiations;
(5) Semi-annually, through the ACO, request the DCAA resident auditor
to determine if the contractor is complying with the FPA procedures;
(6) Annually, review the FPA to determine its validity by evaluating
recorded cost data, and renegotiate the FPA if appropriate;
(7) Determine the effect of changed conditions that may affect an
FPA's validity, cancel FPAs when appropriate, and notify all interested
parties upon cancellation of the FPA;
(8) Not use an FPA that has been cancelled;
(9) At a minimum, conduct the following evaluation of each proposal
generated under an FPA;
(i) Determine the applicability of the FPA to the items proposed.
(ii) Determine the reasonableness of direct cost inputs to the
formula.
(iii) Determine the reasonableness of any non-covered cost proposed,
such as nonrecurring costs.
(iv) Compare prices generated by the FPA to prior prices, government
estimates, PR estimates, to ensure reasonableness. The existence of an
FPA does not relieve the contracting officer from the responsibility of
assuring that a price is fair and reasonable;
(10) Conduct detailed cost analysis on random samples of proposed
items and/or those items that have unit prices which are significantly
higher than previous buys;
(11) Ensure that individual contract actions priced using the FPA
comply with the terms of the FPA; and
(12) Comply with 5315.905-1(b)(7)(C) when pricing an undefinitized
contractual action using an FPA.
48 CFR 5315.890-4 FPAs negotiated by other DOD agencies.
FPAs negotiated by other agencies shall not be used by any Air Force
activity unless they comply with the requirements in 5315.890-2.
48 CFR 5315.890-4 PART 5316 -- TYPES OF CONTRACTS
Authority: 5 U.S.C. 301 and FAR 1.301.
Source: 52 FR 6332, Mar. 3, 1987, unless otherwise noted.
48 CFR 5315.890-4 Subpart 5316.2 -- Fixed-Price Contracts
48 CFR 5316.203-4 Contract clauses.
(d) Adjustments based on cost indexes of labor or material.
(3)(iii)(A) When using the abnormal escalation index method, on
contracts in excess of $50,000,000, the clause shall provide that
contract adjustments will include the compounding effect of actual
indices for future periods. Since predicted economic trends have a
compounding effect on the scheduled price, when calculating each
economic price adjustment (EPA) for costs within a completed period, a
further provisional adjustment shall be made to all future period costs.
This provisional adjustment shall be calculated using the same
percentage decrease (or increase) as was made in the adjustment for the
completed period. Provisional adjustments for each period must be
liquidated against the final adjustment for each period. For example,
the following formula could be used in computing adjustments:
Adjustment=((x^y)/y) (z)^s
where
x=actual index
y=projected index
z=sum of dollars subject to adjustment for all periods in which a
final adjustment has not been made
s=sum of unliquidated provisional adjustments
(B) For those EPA clauses which include a dead band in which no
adjustment is make, the upper end of the dead band becomes the projected
index value during the times of increasing inflation, and the lower end
of the dead band becomes the projected index value during times of
decreasing inflation. For those EPA clauses which provide for price
adjustments only if the difference between the projected index value
exceeds a predetermined threshold (trigger bands), no adjustment will be
made for the future periods unless the actual index value exceeds the
predetermined threshold. However, when the actual index exceeds the
projected index by the predetermined threshold, then an adjustment must
be made to future periods.
(C) The above requirement is optional on multinational contracts
where the impact of multiple country index recalculations are extremely
complex.
48 CFR 5316.203-4 SUBCHAPTER G -- CONTRACT MANAGEMENT
48 CFR 5316.203-4 PART 5350 -- EXTRAORDINARY CONTRACTUAL ACTIONS
48 CFR 5316.203-4 Subpart 5350.4 -- Residual Powers
Sec.
5350.401 Standards for use.
5350.401-90 Indemnification under Pub. L. 85-804.
5350.403 Special procedures for unusually hazardous or nuclear risks.
5350.403-1 Indemnification requests.
5350.403-2 Action on indemnification requests.
5350.403-90 Analysis for indemnification requests.
Authority: 5 U.S.C. 301 and FAR 1.301.
Source: 51 FR 40978, Nov. 12, 1986, unless otherwise noted.
48 CFR 5316.203-4 Subpart 5350.4 -- Residual Powers
5350.401 Standards for use.
48 CFR 5350.401-90 Indemnification under Public Law 85-804.
(a) Only the Secretary can grant indemnification under Pub. L.
85-804 and E.O. 10789 as amended.
(b) The Air Force will consider indemnifying contractors under this
authority when the risk arises out of an instrumentality or activity
which is unusually hazardous or nuclear in nature with risk of loss so
potentially great that the contractor's financial and productive
capabilities would be severely impaired or disrupted. The indemnified
risk shall be precisely defined and directly related to the
intrinsically hazardous or nuclear nature of the instrumentality or
activity, or to the potentially catastrophic loss. Indemnification may
extend beyond the period of contract performance only when the potential
for devastating financial loss may result from normal use of the
product. Indemnification shall not be provided for other forms of
''product liability'' beyond that resulting from the unusually hazardous
or nuclear risks initially defined in the contract.
(c) In addition to paragraph (b) of this section, the Air Force will
consider indemnifying contractors against unusually hazardous or nuclear
risks with a potential for catastrophic loss for the purpose of
furthering programmatic aims in the interest of the national defense.
Providing indemnification to further programmatic aims will be
considered for only exceptional compelling circumstances. Programmatic
aims include, but are not limited to, assuring or obtaining competition,
avoiding prohibitive insurance costs or where obtaining insurance is
precluded by the release of classified information. Reducing or
eliminating the insurance costs charged directly to a program does not
in itself establish that insurance costs are prohibitive. Any request
for indemnification for programmatic aims must clearly identify the
programmatic purposes to be served and how indemnification will serve
those purposes.
5350.403 Special procedures for unusually hazardous or nuclear risks.
48 CFR 5350.403-1 Indemnification requests.
Contractor requests for indemnification shall also include the
following information:
(a) The risks for which indemnification is sought must be precisely
defined and directly related to the intrinsically hazardous or nuclear
nature of the instrumentality or activity or to the potentially
catastrophic loss. Requests shall focus on only those risks for which
insurance is not reasonably available at a reasonable cost or for which
indemnification is necessary to further programmatic purposes.
(b) The risks must be related to a specific time-frame for which
indemnification is required and must indicate whether the time-frame
extends beyond contract performance.
(c) The purposes to be served by indemnifications must be clearly
identified and the needs for indemnification substantiated so that the
scope and nature of the request may be fully evaluated.
48 CFR 5350.403-2 Action on indemnification requests.
(a)(1) Prior to recommending indemnification, contracting officers
shall ascertain that the contractor maintains financial protection in
the form of liability insurance in amounts considered to be prudent in
the ordinary course of business within the industry. In addition, the
contractor shall submit evidence, such as a certificate of insurance or
other customary proof of insurance, that such insurance is either in
force or is available and will be in force during the indemnified
period. A copy of the latest report on the contractor's insurance
issued by the cognizant Government reviewing activity (i.e., AFPRO,
DCAS, etc.) shall be submitted with the request for indemnification.
The fact that insurance will be a direct cost to the program will not in
itself be cause for a determination that financial protection is not
reasonably available, although the cost of such insurance over and above
the contractor's usual and customary cost for insurance will be
considered.
(2) Notwithstanding paragraph (a)(1) of this section, there may be
cases in which the Air Force will determine to indemnify the contractor
only against losses in excess of an identified dollar amount.
(3) Whether certain risks are unusually hazardous or nuclear in
nature requires a reasoned judgement based on the facts and
circumstances of each case. Considerations which will assist in making
that determination include --
(i) Understanding the nature of the risk for which indemnification is
being requested and its relation to the product or activity;
(ii) Assuring there is a clear, precise definition of the unusually
hazardous or nuclear risk;
(iii) Ascertaining the time-frame for indemnification;
(iv) Identifying the programmatic objectives for providing the
indemnification requested such as assuring competition, avoiding
prohibitive insurance costs, assuring contractor performance of
essential services, or assuring protection of contractors from
catastrophic loss where, for security reasons, adequate information
cannot be disclosed to insuring activities to establish insurance
coverage; and
(v) Determining that the indemnification provided serves the
identified programmatic purposes.
(4) Contracting officers shall also assure that the contractor has an
adequate, existing, and on-going industrial safety program prior to
recommending indemnification. If indemnification is to extend into the
period of use of the supplies or equipment, the contracting officer
shall assure that the contractor has and maintains adequate system
design, production engineering, and quality control procedures and
systems. A copy of the current safety report issued by the cognizant
Government reviewing activity (i.e., AFPRO, DCAS, etc.) shall be
submitted with the request for indemnification.
(5) Requests for indemnification shall be considered on a
case-by-case basis and must be supported by all of the data required by
FAR 50.403 and this Supplement.
(6) Requests that are based on programmatic objectives shall be
submitted over the signature of the Commander or not lower than the Vice
Commander of the MAJCOM.
(7) Requests for indemnification authority shall be submitted through
channels to HQ USAF/RDC.
(b) Upon receipt of authority to indemnify the agreed upon risk, and
prior to inclusion of the appropriate indemnification clause in the
contract, the contractor shall provide the PCO with a copy of the
certificate of insurance, the policy or other binder evidencing that the
insurance coverage required is current and in effect.
48 CFR 5350.403-90 Analysis for indemnification requests.
The following information and analysis shall be included to
supplement the information required by FAR 50.403-2:
(a) A clear, precise definition of the risk in establishing the
relationship of the system/equipment to the intrinsically hazardous or
nuclear nature of the instrumentality or activity.
(b) For risks arising from instrumentalities or activities which are
unusually hazardous or nuclear in nature, elaborate on the ''unusually''
hazardous versus hazardous nature. Many private sector activities are
hazardous and a clear distinction must be shown.
(c) Dates or measurable activities (e.g., delivery of the last unit)
when indemnification will start and stop.
(d) Define the programmatic objectives that cannot be otherwise
accomplished and identify the programmatic consequences if
indemnification is not granted.
(e) Discuss any deductibles and apportionment of loss provisions in
applicable insurance coverages.
(f) When indemnification is to extend beyond acceptance and into the
period of use, requests shall include a determination that the
contractor has adequate system design, production engineering, and
quality control procedures and systems.
(g) A determination by the Commander of the buying activity that
indemnification is required to satisfy the programmatic objectives.
48 CFR 5350.403-90 48 CFR Ch. 57 (10-1-91 Edition)
48 CFR 5350.403-90 African Development Foundation
48 CFR 5350.403-90 CHAPTER 57 -- AFRICAN DEVELOPMENT FOUNDATION
48 CFR 5350.403-90 (Parts 5700 to 5799)
48 CFR 5350.403-90
48 CFR 5350.403-90
48 CFR 5350.403-90 SUBCHAPTER B -- ACQUISITION PLANNING
Part
Page
5706 Competition requirements
48 CFR 5350.403-90
48 CFR 5350.403-90 48 CFR Ch. 57 (10-1-91 Edition)
48 CFR 5350.403-90 African Development Foundation
48 CFR 5350.403-90 SUBCHAPTER B -- ACQUISITION PLANNING
48 CFR 5350.403-90 PART 5706 -- COMPETITION REQUIREMENTS
Authority: 40 U.S.C. 474.
Source: 53 FR 5578, Feb. 25, 1988, unless otherwise noted.
48 CFR 5350.403-90 Subpart 5706.3 -- Other Than Full and Open Competition
48 CFR 5706.302-70 Impairment of foreign aid programs.
(a) Full and open competition need not be obtained when it would
impair or otherwise have an adverse effect on programs conducted for the
purposes of foreign aid, relief and rehabilitation.
(b) Application. This authority may be used for:
(1) An award under section 506(a)(5) of the African Development
Foundation Act involving a personal service contractor serving abroad;
(2) An award of $100,000 or less for audit, evaluation or program
support services to be provided abroad;
(3) An award for which the President of the Foundation makes a formal
written determination, with supporting findings, that compliance with
full and open competition procedures would impair foreign assistance
objectives, and would be inconsistent with the fulfillment of the
Foundation program.
(c) Limitation. (1) Offers shall be requested from as many potential
offerors as is practicable under the circumstances.
(2) The contract file must include an appropriate explanation and
support justifying award without full and open competition, as provided
in FAR 6.303, except that determinations made under paragraph (b)(3) of
this section will not be subject to the requirement for contracting
officer certification or to approvals in accord with FAR 6.304.
48 CFR 5706.302-70 48 CFR Ch. 61 (10-1-91 Edition)
48 CFR 5706.302-70 GSA Board of Contract Appeals
48 CFR 5706.302-70 CHAPTER 61 -- GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS
48 CFR 5706.302-70 (Parts 6100 to 6199)
Part
Page
6101 Rules of the General Services Administration Board of Contract
Appeals
48 CFR 5706.302-70
48 CFR 5706.302-70 48 CFR Ch. 61 (10-1-91 Edition)
48 CFR 5706.302-70 GSA Board of Contract Appeals
48 CFR 5706.302-70 PART 6101 -- RULES OF THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS
48 CFR 5706.302-70 Pt. 6101
Sec.
6101.0 Foreword.
6101.1 Scope of rules; definitions; construction; rulings and
orders; panels; situs (Rule 1).
6101.2 Time: Enlargement; computation (Rule 2).
6101.3 Service of papers (Rule 3).
6101.4 The appeal file; protest file (Rule 4).
6101.5 Filing cases; time limits for filing; docketing; notice of
protest by contracting officer (Rule 5).
6101.6 Appearances; notice of appearance (Rule 6).
6101.7 Pleadings (Rule 7).
6101.8 Motions (Rule 8).
6101.9 Election of hearing or record submission (Rule 9).
6101.10 Conferences; conference memorandum; prehearing order;
sanctions; prehearing and presubmission briefs (Rule 10).
6101.11 Submission on the record without a hearing (Rule 11).
6101.12 Record of Board proceedings (Rule 12).
6101.13 Small claims procedure (Rule 13).
6101.14 Accelerated procedure (Rule 14).
6101.15 General provisions governing discovery (Rule 15).
6101.16 Depositions (Rule 16).
6101.17 Interrogatories to parties; requests for admissions;
requests for production of documents (Rule 17).
6101.18 Hearing examiners (Rule 18).
6101.19 Hearings: Scheduling; notice; unexcused absences;
suspension decision (Rule 19).
6101.20 Subpoenas (Rule 20).
6101.21 Hearing procedures (Rule 21).
6101.22 Admissibility and weight of evidence (Rule 22).
6101.23 Exhibits (Rule 23).
6101.24 Transcripts of proceedings; corrections (Rule 24).
6101.25 Briefs and memoranda of law (Rule 25).
6101.26 Consolidation; separate hearings; separate determination of
liability (Rule 26).
6101.27 Stay or suspension of proceedings; dismissals in lieu of
stay or suspension (Rule 27).
6101.28 Dismissals (Rule 28).
6101.29 Decisions (Rule 29).
6101.30 Full Board consideration (Rule 30).
6101.31 Clerical mistakes (Rule 31).
6101.32 Reconsideration; amendment of decisions; new hearings (Rule
32).
6101.33 Relief from decision or order (Rule 33).
6101.34 Harmless error (Rule 34).
6101.35 Award of protest costs; amount of costs allowed (Rule 35).
6101.36 Payment of Board awards (Rule 36).
6101.37 Record on review of a Board decision (Rule 37).
6101.38 Office of the Clerk of the Board (Rule 38).
6101.39 Seal of the Board (Rule 39).
6101.40 Forms (Rule 40).
Appendix -- Form Nos. 1-5
Authority: 41 U.S.C. 601-613; sec. 2713, Pub. L. 98-369, 98 Stat.
1175-1203.
Source: 50 FR 1756, Jan. 11, 1985, unless otherwise noted.
Note: This Table of Contents to the Rules of the GSA Board of
Contract Appeals is published in its entirety for purposes of clarity
and quick reference.
6101.0 Foreword.
6101.1 Scope of rules; definitions; construction; rulings and
orders; panels; situs (Rule 1).
6101.1(a) Scope.
6101.1(b) Definitions.
6101.1(c) Construction.
6101.1(d) Rulings, orders, and directions.
6101.1(e) Panels.
6101.1(f) Situs.
6101.2 Time: Enlargement; computation (Rule 2).
6101.2(a) Time for performing required actions.
6101.2(b) Englarging time.
6101.2(c) Computing time.
6101.3 Service of papers (Rule 3).
6101.3(a) On whom service must be made.
6101.3(b) When service must be made.
6101.3(c) Proof of service.
6101.3(d) Failure to make service.
6101.4 The appeal file; protest file (Rule 4).
6101.4(a) Submission to the Board by the contracting officer.
6101.4(b) Submission to the Board by appellant or any other party.
6101.4(c) Submissions on order of the Board.
6101.4(d) Organization of the appeal and protest files.
6101.4(e) Lengthy or bulky documents.
6101.4(f) Use of appeal or protest file as evidence.
6101.4(g) When appeal or protest file not required.
6101.5 Filing cases; time limits for filing; docketing; notice of
protest by contracting officer (Rule 5).
6101.5(a) Filing cases.
6101.5(b) Time limits for filing appeals, petitions, protests and for
intervening.
6101.5(c) Notice of docketing.
6101.5(d) Notice of protest by contracting officer.
6101.6 Appearances; notice of appearance (Rule 6).
6101.6(a) Appearances before the Board.
6101.6(b) Notice of appearance.
6101.7 Pleadings (Rule 7).
6101.7(a) Pleadings required and permitted.
6101.7(b) Complaint; protest.
6101.7(c) Answer.
6101.7(d) Reply to an answer or response to a notice of intervention
or motion to intervene.
6101.7(e) Modifications to requirement for pleadings.
6101.7(f) Amendment of pleadings.
6101.8 Motions (Rule 8).
6101.8(a) How motions are made.
6101.8(b) When motions may be made.
6101.8(c) Dispositive motions.
6101.8(d) Other motions.
6101.8(e) Jurisdictional questions.
6101.8(f) Procedure.
6101.8(g) Motions for summary relief in appeals.
6101.8(h) Effect of pending motion.
6101.9 Election of hearing or record submission (Rule 9).
6101.10 Conferences, conference memorandum, prehearing order;
sanctions, prehearing and presubmission brief (Rule 10).
6101.10(a) Conferences.
6101.10(b) Conference memorandum.
6101.10(c) Prehearing order.
6101.10(d) Sanctions.
6101.10(e) Prehearing or presubmission briefs.
6101.11 Submission on the record without a hearing (Rule 11).
6101.11(a) Submission on the record.
6101.11(b) Time for submission.
6101.11(c) Objections to evidence.
6101.12 Record of Board proceedings (Rule 12).
6101.12(a) Composition of the record for decision.
6101.12(b) Time for entry into the record.
6101.12(c) Closing of the record.
6101.12(d) Notice that the case is ready for decision.
6101.12(e) Amendments to conform to the evidence.
6101.12(f) Enlargement of the record.
6101.12(g) Inspection of the record of proceedings; release of any
paper, document, or tangible thing prohibited.
6101.12(h) Submissions in camera.
6101.13 Small claims procedure (Rule 13).
6101.13(a) General.
6101.13(b) Election of the small claims procedure.
6101.13(c) Proceedings in small claims.
6101.13(d) Decisions under the small claims procedure.
6101.13(e) Motions pursuant to Rules 31, 32, and 33.
6101.14 Accelerated procedure (Rule 14).
6101.14(a) General.
6101.14(b) Election of the accelerated procedure.
6101.14(c) Proceedings in accelerated appeals.
6101.14(d) Decisions under the accelerated procedure.
6101.14(e) Motions pursuant to Rules 31, 32, and 33.
6101.15 General provisions governing discovery (Rule 15).
6101.15(a) Discovery methods.
6101.15(b) Scope of discovery.
6101.15(c) Discovery limits.
6101.15(d) Conduct of discovery.
6101.15(e) Discovery conference.
6101.15(f) Protective orders; discovery objections.
6101.15(g) Failure to make or cooperate in discovery; sanctions.
6101.15(h) Subpoenas.
6101.16 Depositions (Rule 16).
6101.16(a) When depositions may be taken.
6101.16(b) Depositions: time; place; manner of taking.
6101.16(c) Use of depositions.
6101.16(d) Depositions pending appeal from a decision of the Board.
6101.17 Interrogatories to parties; requests for admissions;
requests for production of documents (Rule 17).
6101.17(a) Written interrogatories.
6101.17(b) Option to produce business records.
6101.17(c) Written requests for admission.
6101.17(d) Written requests for production of documents.
6101.17(e) Change in time for response.
6101.18 Hearing examiners (Rule 18).
6101.18(a) Designation.
6101.18(b) Authority.
6101.18(c) Limitations an authority.
6101.18(d) Amendment of rulings.
6101.19 Hearings: Scheduling; notice unexcused absences;
suspension decision (Rule 19).
6101.19(a) Scheduling of hearings.
6101.19(b) Notice of hearing.
6101.19(c) Unexcused absence from hearing.
6101.19(d) Suspension decision.
6101.20 Subpoenas (Rule 20).
6101.20(a) Voluntary cooperation in lieu of subpoena.
6101.20(b) Subpoenas in appeals governed by the Contract Disputes Act
of 1978 and in protests pursuant to the Competition in Contracting Act
of 1984.
6101.20(c) Subpoenas in appeals not governed by the Contract Disputes
Act of 1978.
6101.21 Hearing procedures (Rule 21).
6101.21(a) Nature and conduct of hearings.
6101.21(b) Continuances; change of location.
6101.21(c) Availability of witnesses, documents, and other tangible
things.
6101.21(d) Enlargement of the record.
6101.21(e) Examination of witnesses.
6101.21(f) Refusal to be sworn.
6101.21(g) Refusal to answer.
6101.21(h) Issues not raised by pleadings.
6101.21(i) Delay by parties.
6101.22 Admissibility and weight of evidence (Rule 22).
6101.22(a) Admissibility.
6101.22(b) Federal Rules of Evidence.
6101.22(c) Weight and credibility.
6101.22(d) Submission of evidence in camera.
6101.23 Exhibits (Rule 23).
6101.23(a) Marking of exhibits.
6101.23(b) Copies of exhibits.
6101.23(c) Withdrawal of documentary exhibits and other papers.
6101.23(d) Disposition of physical exhibits.
6101.24 Transcripts of proceedings; corrections (Rule 24).
6101.24(a) Transcripts.
6101.24(b) Corrections.
6101.25 Briefs and memoranda of law (Rule 25).
6101.25(a) Form and content of briefs and memoranda of law.
6101.25(b) Submission and service of posthearing briefs.
6101.26 Consolidation; separate hearings; separate determination of
liability (Rule 26).
6101.26(a) Consolidation.
6101.26(b) Separate hearings.
6101.26(c) Separate determinations of liability.
6101.27 Stay or suspension of proceedings; dismissals in lieu of
stay or suspension (Rule 27).
6101.27(a) Stay of proceedings to obtain contracting officer's
decision.
6101.27(b) Suspension for other cause.
6101.27(c) Dismissal in lieu of stay or suspension.
6101.28 Dismissals (Rule 28).
6101.28(a) Voluntary dismissal.
6101.28(b) Involuntary dismissal.
6101.29 Decisions (Rule 29).
6101.30 Full board consideration (Rule 30).
6101.31 Clerical mistakes (Rule 31).
6101.32 Reconsideration; amendment of decisions; new hearings (Rule
32).
6101.32(a) Grounds.
6101.32(b) Procedure.
6101.32(c) Time for filing.
6101.33 Relief from decision or order (Rule 33).
6101.33(a) Grounds.
6101.33(b) Procedure.
6101.33(c) Time for filing.
6101.33(d) Effect of motion.
6101.34 Harmless error (Rule 34).
6101.35 Award of protest costs; amount of costs allowed (Rule 35).
6101.35(a) Award of protest costs.
6101.35(b) Amount of costs allowed.
6101.36 Payment of Board awards (Rule 36).
6101.36(a) Generally.
6101.36(b) Conditions for payment.
6101.36(c) Procedure for filing of certificates of finality.
6101.36(d) Procedure in absence of certificate of finality.
6101.36(e) Offer of award.
6101.37 Record on review of a Board decision (Rule 37).
6101.37(a) Record on review.
6101.37(b) Notice.
6101.37(c) Filing of certified list of record materials.
6101.37(d) Transmission of record or stipulated record in
pre-Contract Disputes Act cases.
6101.38 Office of the Clerk of the Board (Rule 38).
6101.38(a) Open for the filing of papers.
6101.38(b) Decisions and orders.
6101.38(c) Docket.
6101.38(d) Copies and certification of papers.
6101.39 Seal of the Board (Rule 39).
6101.40 Forms (Rule 40).
Appendix -- Form Nos. 1-5
Form 1 -- Notice of Appeal, GSA form 2465
Form 2 -- Notice of Appearance
Form 3 -- Subpoena, GSA form 9534
Form 4 -- Government Certificate of Finality
Form 5 -- Appellant/Protester/Intervenor certificate of finality
(50 FR 26764, June 28, 1985)
48 CFR 6101.0 Foreword.
The General Services Administration (GSA) Board of Contract Appeals
was established in GSA pursuant to the Contract Disputes Act of 1978, 41
U.S.C. 601-613, as an independent tribunal to hear and decide contract
disputes between contractors and GSA and other agencies of the United
States, to conduct proceedings concerning petitions for a contracting
officer's written decision pursuant to 41 U.S.C. 605(c)(4), and to hear
and decide appeals taken under the Disputes clause and in connection
with contract-related claims. Additionally, the Board hears and decides
protests filed under section 2713 of the Competition in Contracting Act
of 1984, to be codified at 40 U.S.C. 759(h), involving procurements
conducted under 40 U.S.C. 759. The authority of the Board is exercised
in accordance with the rules in this part and the agency standards of
conduct so that the integrity, impartiality, and independence of the
Board are preserved.
48 CFR 6101.1 Scope of rules; definitions; construction; rulings and
orders; panels; situs (Rule 1).
(a) Scope. The rules in this part govern proceedings in appeals
relating to contracts filed with the Board on or after June 1, 1984, and
all further proceedings in appeals then pending, except to the extent
that in the opinion of the Board, their application in a particular
appeal pending on the effective date would be infeasible or would work
an injustice, in which event the former procedure applies. The rules in
this part also govern proceedings in protests involving procurements
conducted under 40 U.S.C. 759, filed with the Board on or after January
15, 1985, and proceedings concerning any petition filed with the Board
for an order directing a contracting officer to issue a written decision
on a claim.
(b) Definitions (1) Appeal; appellant. The term ''appeal'' means a
submission to the Board of a contract dispute. For purposes of this
part, a ''protest'' is not an appeal. The term ''appellant'' means the
contractor filing an appeal with the Board.
(2) Case. The term ''case'' means an appeal, protest, or petition.
(3) Filing. Filing occurs upon receipt by the Office of the Clerk of
the Board during the Board's working hours, except that in an appeal and
in a petition, and not in any other kind of case:
(i) Filing may also be made with the Board by submitting a written
notice of appeal to the contracting officer or to the head of the
contracting agency;
(ii) The filing date of a document that has been mailed through the
United States Postal Service is the date it is mailed; and
(iii) The filing date of a telegram is the date it is first
transmitted by the telegraph company.
A postmark affixed by the United States Postal Service shall be
presumed to establish the date of mailing; postmarks affixed by postage
meters will not be accepted as evidence of the date of mailing. The
date placed on a telegram by the telegraph company shall be presumed to
establish the date of first transmission.
(4) Interested party. The term ''interested party'' means an actual
or prospective bidder or offeror whose direct economic interest would be
affected by the award of the contract or by failure to award the
contract.
(5) Intervening agency. The term ''intervening agency'' means either
the General Services Administration (GSA), or the agency for which GSA
is conducting the procurement, when the agency seeking to intervene has
submitted a motion to intervene in a protest in accordance with
6101.5(a)(3)(ii).
(6) Intervenor of right. The term ''intervenor of right'' means an
interested party who files with the Board a notice of intervention in
accordance with 6101.5(a)(3)(i) and who has not filed a protest
concerning the same procurement with the United States General
Accounting Office (GAO).
(7) Permissive intervenor. The term ''permissive intervenor'' means
any entity that is an interested party and has proceeded with a protest
of the same procurement at the GAO.
(8) Party. The term ''party'' means an appellant, petitioner,
protester, respondent, intervenor of right, intervening agency, or
permissive intervenor.
(9) Petition; petitioner. The term ''petition'' means a request
filed with the Board under 41 U.S.C. 605(c)(4) that the Board direct a
contracting officer to issue a written decision on a claim. The term
''petitioner'' means the contractor submitting the petition.
(10) Protest; protester. The term ''protest'' means a written
objection by an interested party to a solicitation by a federal agency
for bids or proposals for a proposed contract for the procurement or a
written objection to a proposed award or the award of such a contract
which is filed with the Board by the protester to initiate the protest
proceeding. The term ''protester'' means an interested party who files
a protest with the Board and who has not filed a protest with the GAO
concerning the same procurement.
(11) Respondent. The term ''respondent'' means the Government agency
whose decision, action, or inaction is the subject of an appeal,
protest, or petition.
(c) Construction. The rules in this part shall be construed to
secure the just, speedy, and inexpensive resolution of every case.
(d) Rulings, orders, and directions. The Board may make such rulings
and issue such orders and directions as are necessary to secure the
just, speedy, and inexpensive resolution of every case before the Board.
Any ruling, order, or direction that the Board may make or issue
pursuant to the rules in this part may be made on the motion or
application of any party or on the initiative of the Board. The Board
may also amend, alter, or vacate a ruling, order, or direction upon such
terms as are just.
(e) Panels. Each case is assigned to a panel consisting of one or
more administrative judges, one of whom is designated the panel
chairman. In appeals not processed under 6101.13 or 6101.14, a panel
shall consist of three or more administrative judges. The panel
chairman has responsibility for processing the case and may, without
referral to other panel members, temporarily suspend procurement
authority in a protest, rule on nondispositive motions, and dismiss a
case with prejudice upon the joint request or with the joint consent of
the parties. Concurrence of a majority of the panel, if more than one
judge is assigned, is required for the following actions:
(1) Adjudicating an appeal or protest on the merits or denying or
refusing such an adjudication; and
(2) Issuing a ruling, order, or opinion deciding a motion filed under
6101.32 or 6101.33.
Any action that may be taken by a panel may be taken by the full
Board pursuant to 6101.30.
(f) Situs. The Board's address is: 18th and F Streets, N.W.,
Washington, DC 20405. The Board's telephone number is (202) 566-0116.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26766, June 28, 1985)
48 CFR 6101.2 Time: Enlargement; computation (Rule 2).
(a) Time for performing required actions. All time limitations
prescribed in this part or in any order or direction given by the Board
are maximums, and the action required should be accomplished in less
time whenever possible.
(b) Enlarging time. Upon application of a party for good cause
shown, the Board may enlarge any time prescribed by this part or by an
order or direction of the Board. The exceptions are the time limits for
filing appeals and protests (6101.5(b) (1) and (3)) and for convening
the suspension hearing (6101.19(a)(2)). A written application is
required, but in exigent circumstances an oral request may be made and
followed by a written request. An enlargement of time may be granted
even though the request was filed after the time for taking the required
action expired, but the party requesting the enlargement must show good
cause for its inability to make the request before that time expired.
(c) Computing time. Except as otherwise required by law, in
computing a period of time prescribed by this part or by order of the
Board, the day from which the designated period of time begins to run
shall not be counted, but the last day of the period shall be counted
unless that day is a Saturday, a Sunday, or a legal holiday under
federal law, in which event the period shall include the next business
day. When the period of time prescribed or allowed is less than 7 days,
any intervening Saturday, Sunday, or federal holiday shall not be
counted. When the period of time prescribed or allowed is 7 days or
more, intervening Saturdays, Sundays, and federal holidays shall be
counted except as otherwise provided. The exceptions are the 10-day
time limits for filing protests (6101.5(b)(3) (ii) and (iii)) and
submitting the protest file (6101.4(a)), the 15-day period for filing
the protest answer (6101.7(c)(2)), the 25-day period for commencement of
the hearing on the merits of the protests, and the 45-day period for
deciding the protest. Time for filing any document or copy thereof with
the Board expires when the Office of the Clerk of the Board closes on
the last day on which such filing may be made.
48 CFR 6101.3 Service of papers (Rule 3).
(a) On whom service must be made. Except as this part provides or
the Board may order, when a party sends a document to the Board it must
at the same time send a copy to any other party in the manner provided
in paragraph (b) of this rule. Subpoenas (6101.20) and posthearing and
reply briefs (6101.25) are exceptions to this requirement. Any papers
required to be served on a party shall be filed with the Board before
service or within a reasonable time thereafter, but the Board may on
motion of a party or on its own initiative order that depositions upon
oral examination and interrogatories, requests for documents, requests
for admission, and answers and responses thereto not be filed unless on
order of the Board or for use in a proceeding.
(b) When service must be made -- (1) Appeals and petitions. Except
as this part provides or the Board may order, when a party to an appeal
or petition files a document with the Board, it must serve a copy on the
other party by mail or some other equally or more expeditious means of
transmittal.
(2) Protests. When a protest is filed with the Board, the protester
must serve a copy on the contracting officer whose decision or action is
being protested by means reasonably calculated to effect delivery on the
same day the protest is filed with the Board. When a party to a protest
files with the Board any other document, it must serve a copy on every
other party by means reasonably calculated to effect delivery within 1
day after the document is filed with the Board. Documents filed in
camera pursuant to 6101.12(h) need not be served on the other parties.
(c) Proof of service. Except when service is not required, a party
sending a document to the Board must indicate to the Board that a copy
has also been sent to every other party. This may be done by
certificate of service, by the notation of a carbon copy (cc:), or by
any other means that can reasonably be expected to indicate to the Board
that other parties have received a copy.
(d) Failure to make service. If a document sent to the Board by a
party does not indicate that a copy has been served on every other
party, the Board may return the document to the party that submitted it
with such directions as it considers appropriate, or the Board may
inquire whether a party has received a copy and note on the record the
fact of inquiry and the response and may also direct the party that
submitted the document to serve a copy on any other party. In the
absence of proof of service a document may be treated by the Board as
not properly filed.
48 CFR 6101.4 The appeal file; protest file (Rule 4).
(a) Submission to the Board by the contracting officer. Within 30
days from receipt of notice that an appeal has been filed, or in a
protest, within 10 days after its filing excluding Saturdays, Sundays,
and federal holidays, or within such time as the Board may allow, the
contracting officer shall file with the Board appeal or protest file
exhibits consisting of all documents and other tangible things relevant
to the claim or protest and to the contracting officer's decision which
has been appealed or protested, including:
(1) The contracting officer's decision, if any, from which the appeal
or protest is taken;
(2) The contract, if any, including amendments, specifications,
plans, drawings;
(3) All correspondence between or among the parties that is relevant
to the appeal or protest, including the written claim or claims that are
the subject of the appeal, and evidence of their certification, if any;
(4) Affidavits or statements of any witnesses on the matter in
dispute or under protest and transcripts of any testimony taken before
the filing of the notice of appeal or protest;
(5) All documents and other tangible things on which the contracting
officer relied in making the decision or in taking the action protested,
including a copy of the agency procurement request, the delegation of
procurement authority, if any, and any correspondence relating thereto;
(6) The abstract of bids, if any;
(7) In a protest, a copy of the solicitation, protester's bid or
proposal, and, if bid opening has occurred and no contract has been
awarded, a copy of any bid relevant to the protest;
(8) In a protest of a negotiated procurement when no award has been
made, a copy of any offer or proposal being considered for award and
which is relevant to the protest (ordinarily, these documents will be
submitted in camera pursuant to 6101.12(h)); and
(9) Any additional existing evidence or information deemed necessary
to determine the merits of the appeal or protest.
The contracting officer shall serve a copy of the appeal or protest
file on the appellant and on all other parties at the same time that the
contracting officer files it with the Board, except that the contracting
officer need not serve on the appellant or on any other party those
documents furnished the Board in camera pursuant to 6101.12(h) or those
documents previously furnished. However, the contracting officer must
serve on the appellant or protester and on all other parties a list
identifying the specific documents filed with the Board giving
sufficient details necessary for their recognition. However, the list
must not reveal the number and identity of the offerors whose proposals
are filed in camera and should include an identifying statement, e,g.,
''proposal(s) being considered for award.'' This list must also be filed
with the Board as an exhibit to the appeal or protest file.
(b) Submission to the Board by appellant or any other party. Within
30 days after filing of the respondent's appeal file exhibits, within 5
days after receipt of the respondent's protest file exhibits, or within
such time as the Board may allow, the appellant or any other party shall
file with the Board for inclusion in the appeal or protest file
documents or other tangible things relevant to the appeal or protest
that have not been submitted by the contracting officer. The appellant
or any other party shall serve a copy of its additional exhibits upon
the respondent and every other party at the same time as it files them
with the Board.
(c) Submissions on order of the Board. The Board may, at any time
during the pendency of the appeal or protest, require any party to file
other documents and tangible things as additional exhibits.
(d) Organization of the appeal and protest files. Appeal and protest
file exhibits may be originals or true, legible, and complete copies.
They shall be arranged in chronological order within each submission,
earliest documents first, bound on the left margin except where size or
shape makes such binding impracticable, numbered, tabbed, and indexed.
The numbering shall be consecutive, in whole arabic numerals (no
letters, decimals, or fractions), and continuous from one submission to
the next, so that the complete file, after all submissions, will consist
of one set of consecutively numbered exhibits. The index should include
the date and a brief description of each exhibit and shall indicate
which exhibits, if any, have been filed with the Board in camera or
otherwise not served on every other party.
(e) Lengthy or bulky documents. The Board may waive the requirement
to furnish other parties copies of bulky, lengthy, or outsized documents
submitted to the Board as exhibits. The requirements of paragraph (d)
of this section apply to such documents. In addition, the party
submitting them shall make them reasonably available to all other
parties for inspection if it has retained copies, and the Board will
also make them available for inspection at its offices.
(f) Use of appeal or protest file as evidence. All exhibits in the
appeal or protest file are part of the record upon which the Board will
render its decision, except for those as to which an objection has been
sustained. Unless otherwise ordered by the Board, objection to any
exhibit may be made at any time before the first witness is sworn or, if
the appeal or protest is submitted on the record pursuant to 6101.11, at
any time prior to or concurrent with the first record submission. The
Board may enlarge the time for such objections and will consider an
objection made during a hearing if the ground for objection could not
reasonably have been earlier known to the objecting party. If an
objection is sustained, the Board will so note in the record.
(g) When appeal or protest file not required. The Board may postpone
or dispense with the submission of any or all appeal or protest file
exhibits.
48 CFR 6101.5 Filing cases; time limits for filing; docketing; notice
of protest by contracting officer (Rule 5).
(a) Filing cases. An appeal is commenced by filing a notice of
appeal with the Board, or by submitting a notice of appeal to the
contracting officer or to the head of the contracting agency. A
proceeding on a petition or a protest is commenced by filing it with the
Board.
(1) Notice of appeal; petition. (i) A notice of appeal or petition
shall be in writing and should be signed by the appellant or petitioner
or by the appellant's or petitioner's attorney or authorized
representative. If the appeal is from a contracting officer's decision,
the notice of appeal should describe the decision in enough detail to
enable the Board to differentiate that decision from any other; the
contractor can satisfy this requirement by attaching a copy of the
contracting officer's decision to the notice of appeal. If an appeal is
taken from the failure of a contracting officer to issue a decision, or
if a petition is filed with the Board, the notice of appeal or petition
should describe in detail the claim that the contracting officer has
failed to decide; the contractor can satisfy this requirement by
attaching a copy of the written claim submission to the notice of appeal
or petition.
(ii) A written notice in any form, including the one specified in the
appendix to this part, is sufficient to initiate an appeal. The notice
of appeal, or a petition, should include the following information: (A)
The number and date of the contract; (B) the name of the agency and the
component thereof against which the claim has been asserted; (C) the
name of the contracting officer whose decision or failure to decide is
appealed and the date of the decision, if any; (D) a brief account of
the circumstances giving rise to the appeal; and (E) an estimate of the
amount of money in controversy, if any, and if known.
(iii) The appellant or petitioner must send a copy of the notice of
appeal or petition to the contracting officer whose decision is appealed
or, if there has been no decision, to the contracting officer before
whom the appellant's claim is pending.
(2) Protest. The only acceptable form for a protest is the pleading
prescribed in 6101.7(b)(2), which must be filed with the Board, with a
copy to the contracting officer as prescribed in 6101.3(b)(2). A protest
may not be filed with the Board by an interested party who has proceeded
with a protest of the same procurement at the GAO. Any other interested
party or agency described in paragraph (a)(3) of this Rule 5 may
participate as a party to a protest by filing a notice of intervention
or a motion to intervene, as appropriate.
(3) Intervention. Intervention as a party in a protest is permitted,
as follows:
(i) Notice of intervention by intervenor of right. An intervenor of
right may intervene in a protest by filing a notice of intervention with
the Board and serving copies upon all known parties and upon any
potential intervening agency. It shall be the responsibility of the
intervenor to contact the Board or the respondent to obtain any
information it requires for filing its notice of intervention and for
serving it upon other parties. The notice shall set forth the name,
address, and telephone number of the person signing the notice, the
nature of the party's direct economic interest that would be affected by
the award of the contract or by failure to award the contract, the
party's statement of position regarding the protest, and any other
grounds for protest. All such grounds must be fully supported by
specific allegations and, where practicable, affidavits or other
pertinent documents, and must be timely asserted as provided in
paragraph (b)(3) of this section. Receipt of such notice will be
acknowledged by the Board, and it shall be the responsibility of the
intervenor to contract the Board to ascertain the status of the protest,
including the time and place of any hearings or other proceedings.
(ii) Motion to intervene by intervening agency. The Board may permit
an intervening agency, upon motion timely filed pursuant to paragraph
(b)(4) of this section, to intervene in a protest provided that the
intervention will not unduly delay or prejudice the adjudication of the
rights of the original parties. The GSA is eligible to intervene on the
question of whether a delegation of procurement authority is required or
whether the procuring agency has failed to meet any condition of a
delegation granted by specific request or by regulation. The agency for
which GSA is conducting the procurement may be permitted to intervene in
an appropriate case.
(iii) Motion to intervene by permissive intervenor. The Board may
permit any entity defined in 6101.1(b)(7), upon motion timely filed
pursuant to paragraph (b)(4) of this section, to intervene in a protest.
Such entity is eligible to intervene on the issues already under
protest and only if its participation will not unduly delay or prejudice
the rights of the original parties. This limited participation may
affect the applicant's rights of discovery and cross-examination and
involvement in any hearing or settlement of the protest. A permissive
intervenor will not be permitted to elect a hearing (6101.9).
(b) Time limits for filing appeals, petitions, protests and for
intervening -- (1) Appeals. (i) An appeal from a decision of a
contracting officer shall be filed no later than 90 days after the date
the appellant receives that decision.
(ii) An appeal may be filed with the Board should the contracting
officer fail or refuse to issue a timely decision on a claim submitted
in writing, properly certified if required.
(2) Petitions. A contractor may file with the Board a petition that
the Board direct a contracting officer to issue a written decision on a
claim.
(3) Protests. A protest will be considered by the Board if it
includes the information required by 6101.7(b)(2) and is timely filed.
In determining the time for filing protests under paragraphs (b)(3) (ii)
and (iii) of this section, intervening Saturdays, Sundays, and federal
holidays shall not be counted.
(i) A protest based upon alleged improprieties in any type of
solicitation which are apparent before bid opening or the closing time
for receipt of initial proposals shall be filed before bid opening or
the closing time for receipt of initial proposals. In the case of
negotiated procurements, alleged improprieties which do not exist in the
initial solicitation but which are subsequently incorporated therein
must be protested no later than the next closing time for receipt of
proposals following the incorporation.
(ii) A protest, other than one covered in paragraph (b)(3)(i) of this
section, shall be filed no later than 10 days after the basis for the
protest is known or should have been known, whichever is earlier.
(iii) If a protest has been filed initially with the agency, any
subsequent protest to the Board filed within 10 days of formal
notification of, or actual or constructive knowledge of, initial adverse
agency action will be considered, provided that the initial protest to
the agency was filed in accordance with the applicable time limits in
paragraphs (b)(3) (i) and (ii) of this section.
(iv) A protest which is timely under this rule but is filed more that
10 calendar days after contract award will not be subject to the
procedure in 6101.19 for suspension hearing and decision.
(4) Intervention. Any intervenor of right or intervening agency
receiving notice of a protest as provided in paragraph (d) of this Rule
5 may, by intervening within 4 days after receipt of notice, participate
fully as party to a protest. When such a party intervenes, it may raise
at the time it files its notice or motion any new issue concerning the
protested procurement, provided that the new issue is timely raised
under paragraph (b)(3) of this Rule 5 and further that the notice or
motion complies fully with the pertinent requirements of paragraph
(a)(3) of this Rule 5. An intervening agency must also file a motion to
intervene within 4 days of receipt of a notice of intervention which
raises a new issue or within 4 days of receipt of an amendment to the
protest which raises a new issue.
(c) Notice of docketing. Notices of appeal, petitions, and protests
will be docketed by the Office of the Clerk of the Board, and a written
notice of docketing will be sent promptly to all parties.
(d) Notice of protest by contracting officer. Within 1 day after
receipt of a copy of the protest, the contracting officer shall give
oral or written notice of the protest: to all firms solicited who
appear to be affected by the protest, if sealed bids or initial offers
or proposals have not been opened; to all bidders or offerors, if no
award has been made and bids have been opened or the date for receipt of
initial proposals has passed; or, if award has been made, to the
contractor and all bidders or offerors. This notice shall be provided
to an officer, a managing agent, or the individual who has signed the
bid or proposal. If the procuring agency is other than the GSA, notice
shall also be given to the Director, Authorizations and Management
Reviews Division (KMA) or the GSA official delegating procurement
authority to the agency. If the GSA is procuring on behalf of another
agency, notice shall also be given by the contracting officer to that
agency. If only written notice is provided under this paragraph it must
be provided by means reasonably calculated to effect delivery within 1
day after the copy of the protest is received by the contracting
officer. If oral notice is given, it shall be confirmed in writing or
by telegram or by teletyperwriter on the same date the oral notice is
provided. The contracting officer will confirm by written notification
to the Board within 5 days after receipt of the protest whether the
requisite notice was provided and list all persons and agencies to whom
such notice was given.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26766, June 28, 1985;
50 FR 29231, July 18, 1985)
48 CFR 6101.6 Appearances; notice of appearance (Rule 6).
(a) Appearances before the Board -- (1) Appellant; petitioner;
protester; intervenor. Any appellant, petitioner, protester, or
intervenor may appear before the Board by an attorney at law licensed to
practice in a state, commonwealth, or territory of the United States, in
the District of Columbia, or in a foreign country. Alternatively, an
individual appellant, petitioner, protester, or intervenor may appear in
his own behalf; a corporation, trust, or association may appear by one
of its officers or by any other authorized representative; and a
partnership may appear by one of its members or by any other authorized
representative.
(2) Respondent; intervening agency. The respondent and any
intervening agency may appear before the Board by an attorney at law
licensed to practice in a state, commonwealth, or territory of the
United States, in the District of Columbia, or in a foreign country.
Alternatively, the respondent may appear by the contracting officer or
by the contracting officer's authorized representative.
(b) Notice of appearance. Unless a notice of appearance is filed by
some other person, the person signing the notice of appeal, petition,
protest, notice of intervention, or motion to intervene shall be deemed
to have appeared on behalf of the appellant, petitioner, protester, or
intervenor, and the head of the respondent agency's or the intervening
agency's litigation office shall be deemed to have appeared on behalf of
the respondent. A notice of appearance in the form specified in the
appendix to this part is sufficient.
48 CFR 6101.7 Pleadings (Rule 7).
(a) Pleadings required and permitted. Except as the Board may
otherwise order, the Board requires the submission of a complaint or a
protest and an answer. In appropriate circumstances, the Board may
order or permit a reply to an answer.
(b) Complaint; protest -- (1) Complaint. No later than 30 days
after the docketing of the appeal, the appellant shall file with the
Board a complaint setting forth its claim or claims in simple, concise,
and direct terms. The complaint should set forth the factual basis of
the claim or claims, with appropriate reference to the contract
provisions, and should state the amount in controversy, or an estimate
thereof, if any and if known. No particular form is prescribed for a
complaint, and the Board may designate the notice of appeal, a claim
submission, or any other document as the complaint, either on its own
initiative or on request of the appellant.
(2) Protest. A protest is commenced by filing it with the Board.
The initial filing in a protest shall be in writing and signed by the
protester or by the protester's attorney or authorized representative.
It shall include:
(i) The name, address, and telephone number of the person signing the
protest;
(ii) The number and date of the solicitation and the date for
submission of sealed bids or initial proposals;
(iii) If a contract has been awarded, the number and date of the
contract, and to whom awarded (if known);
(iv) The name and component of the agency and the name of the
contracting officer whose decision the Board is being asked to review;
(v) A simple, concise, and direct statement of the grounds for
protest, including citations to provisions of statute, regulations, or
the delegation of procurement authority that the protester alleges were
violated;
(vi) Proof of the timeliness of the protest; and
(vii) If a hearing is sought to determine whether procurement
authority should be suspended (suspension hearing) or to determine the
merits of the protest, a specific request for such a hearing or
hearings.
A protest timely filed which does not include the information
required by this section will not be considered unless it is timely
amended as permitted by paragraph (f)(2)(i) of this section.
(c) Answer -- (1) Appeal answer. No later than 30 days after the
filing of the complaint or of the Board's designation of a complaint,
the respondent shall file with the Board an answer setting forth simple,
concise, and direct statements of its defenses to the claim or claims
asserted in the complaint as well as any affirmative defenses it chooses
to assert. In lieu of answering, the respondent may file a dispositive
motion of one of the sorts enumerated in 6101.8(c) or a motion for a
more definite statement; if such a motion if filed and is denied by the
Board in whole or in part, the respondent shall file its answer no later
than 30 days after the Board's ruling on the motion. If no answer or
motion is timely filed, the Board may enter a general denial, in which
case the respondent may thereafter amend the answer to assert
affirmative defenses only by leave of the Board and as otherwise
prescribed by paragraph (f)(1) of this section. The Board will inform
the parties when it enters a general denial on behalf of the respondent.
(2) Protest answer. No later than 15 days after the filing of the
protest, the respondent shall file its answer with the Board setting
forth its defenses to the protest, and its findings, actions, and
recommendations in the matter. Intervening Saturdays, Sundays, or
federal holidays shall not be counted in determining the time for filing
this pleading. A dispositive motion or a motion for a more definite
statement may not be filed in lieu of the protest answer.
(d) Reply to an answer or response to a notice of intervention or
motion to intervene. If the Board orders or permits a reply to an
answer or a response to a notice of intervention or motion to intervene,
it shall be filed as directed by the Board.
(e) Modifications to requirement for pleadings. If the appellant has
elected the small claims procedure provided by 6101.13 or the
accelerated procedure provided by 6101.14, the submission of pleadings
shall be governed by the applicable section.
(f) Amendment of pleadings -- (1) Appeals. Each party to an appeal
may amend its pleadings once without leave of the Board at any time
before a responsive pleading is filed; if the pleading is one to which
no responsive pleading it permitted, such amendment may be made at any
time within 20 days after it is served, or, in small claims proceedings
under 6101.13, within 10 days after it is served. The Board may permit
the parties to amend pleadings further on conditions fair to both
parties. If a response to the unamended pleading was required by this
part or by an order of the Board, a response to the amended pleading
shall be filed no later than 30 days after the filing of the amended
pleading, or, in small claims proceedings, no later than 15 days after
the filing of the amended pleading. 6101.12(e) concerns amendments to
pleadings to conform to the evidence.
(2) Protests. (i) If a timely protest does not include all the
information required by paragraph (b)(2) of this section, the Board may,
in its discretion, so inform the protester and grant it leave to amend
the protest to supply the missing information, except that a protest may
be amended to include the information required in paragraph (b)(2)(v) of
this section only if that information is filed in writing with the Board
and served upon the contracting officer within the time limits of
6101.5(b)(3). Enlargement of time (6101.2(b)) will not be granted to
comply with this requirement. As to any other information required in
paragraph (b)(2) of this section, the Board will ordinarily grant such
additional time for the filing of an amendment to the protest as is
reasonable and fair in the circumstances. Except for purposes of
determining the timeliness of the initial filing, the filing date of a
protest which is amended by leave of the Board shall be the date of the
filing of the amendment.
(ii) The notice of intervention or motion to intervene provided for
in 6101.5(a)(3) may not be amended after the time limits set in
6101.5(b)(4) for filing such notice or motion.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26766, June 28, 1985)
48 CFR 6101.8 Motions (Rule 8).
(a) How motions are made. Motions may be oral or written. A written
motion shall indicate the relief or order sought and, either in the text
of the motion or in an accompanying legal memorandum, the grounds
therefor, and, in addition, a motion for summary relief shall comply
with the requirements of paragraph (g) of this section. 6101.25
prescribes the form and content of legal memoranda. Oral motions shall
be made on the record and in the presence of the other party.
(b) When motions may be made. A motion filed in lieu of an answer
pursuant to 6101.7(c)(1) shall be filed no later than the date on which
the answer is required to be filed. Any other dispositive motion shall
be made as soon as the grounds therefor are known, except that all
dispositive motions in a protest shall be filed no later than 15 days
after the filing of the protest. Any other motion shall be made
promptly or as required by this part.
(c) Dispositive motions. The following dispositive motions may
properly be made before the Board:
(1) Motions to dismiss for lack of jurisdiction or for failure to
state a claim upon which relief can be granted or for failure to state a
valid basis for protest;
(2) Motions to dismiss for failure to prosecute;
(3) Motions for summary relief (analogous to summary judgment) in
appeals;
(4) Motions to dismiss a protest which is frivolous or untimely
filed; and
(5) Any other motion to dismiss with prejudice.
(d) Other motions. Other motions may be made in good faith and in
proper form.
(e) Jurisdictional questions. The Board may at any time consider the
issue of its jurisdiction to decide a case. When all facts touching
upon the Board's jurisdiction are not of record, decision of a
jurisdictional question may be deferred pending hearing on the merits or
the filing of record submissions.
(f) Procedure. In an appeal, a party may respond to a written motion
other than a motion pursuant to 6101.31, 6101.32, or 6101.33 at any time
within 20 days after the filing of the motion. Responses to motions
pursuant to 6101.31, 6101.32, or 6101.33 may be made only as permitted
or directed by the Board. In a protest, a party may respond to any
written motion only as permitted or directed by the Board. The Board
may permit hearing or oral argument on written motions and may require
additional submissions from any of the parties. Procedure on oral
motions made at hearing shall be determined as necessary in the course
of their consideration.
(g) Motions for summary relief in appeals. With each motion for
summary relief, there shall be served and filed a statement of the
material facts as to which the moving party contends there is no genuine
issue, and this statement shall include references to the supporting
affidavits and documents, if any, and to the 6101.4 appeal file exhibits
relied on to support such statement. Parties opposing such a motion
shall serve and file, together with their opposing legal memoranda and
opposing affidavits and documents, if any, a concise statement setting
forth all material facts as to which it is contended there exists a
genuine issue necessary to be litigated. All material facts set forth
in the statement required to be served and filed by the moving party are
deemed to be admitted unless controverted by the statement required to
be served by an opposing party.
(h) Effect of pending motion. Except as this part provide or the
Board may order, a pending motion shall not excuse the parties from
proceeding with the appeal or protest in accordance with this part and
the orders and directions of the Board. In an appeal, if a motion is
initially filed in lieu of an answer the answer will be due as
prescribed by 6101.7(c).
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 29231, July 18, 1985)
48 CFR 6101.9 Election of hearing or record submission (Rule 9).
Each party shall inform the Board, in writing, whether it elects a
hearing or submission of its case on the record pursuant to 6101.11.
Such an election may be filed at any time unless a time for filing is
prescribed by the Board or by 6101.13 (small claims procedure) or
6101.14 (accelerated procedure). A party electing to submit its case on
the record pursuant to 6101.11 may also elect to appear at a hearing
solely to cross-examine any witness presented by an opposing party,
provided that the Board is informed of that party's intention within 10
days of its receipt of notice of the election of hearing by the opposing
party. If a hearing is elected, the election should state where and
when the electing party desires the hearing to be held and should
explain the reasons for its choices if they are not apparent. A hearing
will be held if one of the parties elects one. If a party's decision
whether to elect a hearing is dependent upon the intentions of another
party or parties, it shall consult with such other party or parties
before filing its election. If there is to be a hearing, it will be
held at a time and place prescribed by the Board after consultation with
the party or parties electing the hearing. The record submissions from
a party that has elected to submit on the record shall be due as
provided in 6101.11.
48 CFR 6101.10 Conferences, conference memorandum, prehearing order;
sanctions, prehearing and presubmission briefs (Rule 10).
(a) Conferences. The Board may convene the parties in conference,
either by telephone or in person, for any purpose. In protests, a
conference will ordinarily be held within 6 days after the filing of the
protest. The conference may be stenographically or electronically
recorded by the Board. Matters to be considered and actions to be taken
at a conference may include:
(1) Simplifying, clarifying, or severing the issues;
(2) Stipulations, admissions, agreements, and rulings to govern the
admissibility of evidence, understanding on matters already of record,
or other similar means of avoiding unnecessary proof;
(3) Plans, schedules, and rulings to facilitate discovery;
(4) Limiting the number of witnesses and other means of avoiding
cumulative evidence;
(5) Stipulations or agreements disposing of matters in dispute; or
(6) Any other matter that may aid in the disposition of the case.
(b) Conference memorandum. The Board may prepare a memorandum of the
results of a conference, including any rulings or orders, and place such
memorandum in the record of the case. A copy of the memorandum will be
sent to each party, and each party shall have 5 days after receipt of
the memorandum to object to the substance of it.
(c) Prehearing order. The Board may issue a prehearing or
presubmission order to govern the proceedings in a case.
(d) Sanctions. When the Board has issued written directions or
orders to any party, whether on its own initiative or following a
prehearing or presubmission conference, and any party fails to comply,
the Board may make such orders with regard to the failure as are just,
including the following:
(1) Ordering that the facts pertaining to the matter in dispute shall
be taken to be established for the purpose of the case in accordance
with the contention of the party submitting documents or requests for
admissions;
(2) Declaring a waiver of challenge of the accuracy of any statement
or schedule of items and figures involved;
(3) Refusing to allow the disobedient party to support or oppose
designated claims or defenses;
(4) Prohibiting the disobedient party from introducing in evidence
designated documents or items of testimony; or
(5) Dismissing the case or any part thereof.
(e) Prehearing or presubmission briefs. A party may, by leave of the
Board, file a prehearing or presubmission brief at any time before the
hearing or upon or before the date on which first record submissions are
due.
48 CFR 6101.11 Submission on the record without a hearing (Rule 11).
(a) Submission on the record. A party may elect to submit its case
on the record without a hearing. A party submitting its case on the
record may include in its written record submission or submissions:
(1) Any relevant documents or other tangible things it wishes the
Board to admit into evidence;
(2) Affidavits, depositions, and other discovery materials that set
forth relevant evidence; and
(3) A brief or memorandum of law.
The Board may require the submission of additional evidence or briefs
and may order oral argument in a case submitted on the record.
(b) Time for submission. (1) If all parties have elected to submit
their case on the record, the Board will issue an order prescribing the
time for initial and, if appropriate, reply record submissions.
(2) If at least one party has elected a hearing and any other party
has elected to submit its case on the record, any party submitting on
the record shall make its initial submission no later than the
commencement of the hearing or at an earlier date if the Board so
orders, and a further submission in the form of a brief at the time for
submission of posthearing briefs. The Board will accept a further
record submission in the form of a reply brief if a party that attended
the hearing is permitted to submit a reply brief; such a record
submission will be due at the same time as the reply brief of the party
or parties that attended the hearing. Submission and service of record
submissions in the form of briefs are governed by 6101.25.
(c) Objections to evidence. Objections to evidence in a record
submission may be made at any time within 10 days after the filing of
the submission in an appeal or petition, or within 5 days in a protest.
Replies to such objections, if any, may be made within 10 days after the
filing of the objection. The Board may rule on such objections in its
opinion deciding the merits of the case.
48 CFR 6101.12 Record of Board proceedings (Rule 12).
(a) Composition of the record for decision. The record upon which
any decision of the Board will be rendered consists of:
(1) The notice of appeal, petition, or protest;
(2) Appeal or protest file exhibits other than those as to which an
objection has been sustained;
(3) Hearing exhibits other than those as to which an objection has
been sustained;
(4) Pleadings;
(5) Motions and responses thereto;
(6) Memoranda, orders, rulings, and directions to the parties issued
by the Board;
(7) Documents and other tangible things admitted in evidence by the
Board;
(8) Written transcripts or electronic recordings of proceedings;
(9) Stipulations and admissions by the parties;
(10) Depositions, or parts thereof received in evidence;
(11) Written interrogatories and responses received in evidence;
(12) Briefs and memoranda of law; and
(13) Anything else that the Board may designate part of the record.
All other papers and documents in a case are part of the
administrative record of the proceedings. The administrative record
shall include file and hearing exhibits offered but not received in
evidence in a case; it may also include correspondence with and among
the parties, and depositions, interrogatories, offers of proof contained
in the transcript, and other documents that are not part of the record
for decision.
(b) Time for entry into the record. Except as the Board may
otherwise order, nothing other than posthearing briefs will be received
into the record after a hearing is completed. In cases submitted on the
record without a hearing, nothing will be received into the record after
the time for filing of the last record submission. Briefs will be due
as provided in 6101.25(b).
(c) Closing of the record. Except as the Board may otherwise order,
no proof shall be received in evidence after a hearing is completed or,
in cases submitted on the record without a hearing, after notice by the
Board to the parties that the record is closed and that the case is
ready for decision.
(d) Notice that the case is ready for decision. The Board will give
written notice to the parties when the record is closed and the case is
ready for decision.
(e) Amendments to conform to the evidence. When issues within the
proper scope of a case, but not raised in the pleadings, have been
raised without objection or with permission of the Board at a hearing
(see 6101.21(h)) or in record submissions, they shall be treated in all
respects as if they had been raised in the pleadings. The Board may
formally amend the pleadings to conform to the proof or may order that
the record be deemed to contain pleadings so amended.
(f) Enlargement of the record. The Board may at any time require or
permit enlargement of the record with additional evidence and briefs.
It may reopen the record to receive additional evidence and oral
argument at a hearing.
(g) Inspection of the record of proceedings; release of any paper,
document, or tangible thing prohibited. Except for any part thereof
that is subject to a protective order, the record of proceedings in a
case shall be made available for inspection by any person at the office
of the Board during the Board's normal working hours. Except as
provided in 6101.23(c), no paper, document, or tangible thing which is
part of the record of proceedings in a case may be released from the
offices of the Board. Copies may be obtained by any person as provided
in 6101.38.
(h) Submissions in camera. (1) A party may by motion request that
the Board receive and hold in camera documents that the party contends
are privileged or confidential, stating the grounds therefor. The
documents that are the subject of the motion shall be attached to the
motion. If the Board denies the motion, the documents will be returned
to the moving party. If the Board grants the motion, the documents will
be held in camera and will be part of the record of the case.
(2) The Board may at any time determine that documents in its files
should be held in camera. If such a determination is made, all parties
will be so notified.
(3) During a hearing or other proceedings the Board in its discretion
may allow in camera testimony that a party contends would involve
privileged or confidential matters. The party requesting in camera
testimony must furnish advance notice of such a request to the Board and
all opposing parties stating the grounds therefor.
48 CFR 6101.13 Small claims procedure (Rule 13).
(a) General. The small claims procedure is available in appeals
solely at the appellant's election. This procedure shortens the time
periods for and allows the elimination of many of the procedural steps
required by this part so that the Board may render its decision, where
practicable, within 120 days after the Board's receipt of the election.
Pleadings, discovery, and other prehearing activities may be restricted
or eliminated. An appellant may elect the accelerated procedure
prescribed by 6101.14, instead of the small claims procedure prescribed
by this section, for any appeal eligible for the small claims procedure.
(b) Election of the small claims procedure. In any appeal in which
the amount in controversy is $10,000 or less, the appellant may elect
the small claims procedure.
(1) When election must be made. Except as the Board may otherwise
order, such an election shall be made by written notice filed with the
Board no later than 30 days after filing of the notice of docketing. A
late election may be made only be leave of the Board.
(2) Tolling of time. The Board may toll the time for processing the
appeal under the small claims procedure if it determines that the
appellant has not proceeded in accordance with the schedule established
pursuant to paragraph (c) of this Rule 13 and the appeal cannot
otherwise be resolved within 120 days after receipt of appellant's
election.
(c) Proceedings in small claims. The Board may establish an
expedited schedule for the proceedings other than that prescribed in
paragraphs (c)(1) through (6) of this section. The Board will
ordinarily conduct a prehearing or presubmission conference pursuant to
6101.10 for this purpose. Except as the Board may otherwise order, the
parties shall proceed in small claims appeals as follows:
(1) The respondent's appeal file exhibits shall be filed either as
prescribed by 6101.4(a) or no later than 15 days after the receipt of
the appellant's notice of election, whichever first occurs.
(2) If the Board permits the filing of a complaint, it shall be filed
either as prescribed by 6101.7(d) or no later than 15 days after receipt
of the appellant's notice of election, whichever first occurs.
(3) The appellant's appeal file exhibits shall be filed no later than
10 days after the filing of the respondent's appeal file exhibits.
(4) If the Board has permitted the filing of a complaint, the answer
shall be filed no later than 10 days after the filing of the complaint.
(5) The election of each party prescribed by 6101.9 (Rule 9) shall be
filed no later than 30 days after the receipt of the appellant's
election of the small claims procedure.
(6) If the Board permits discovery, it shall be concluded no later
than 10 days before the hearing date or, if both parties have elected to
submit on the record pursuant to 6101.11, no later than 10 days before
the date prescribed by the Board for first record submissions under
6101.11(b).
(d) Decisions under the small claims procedure. (1) Written
decisions may be rendered by a single administrative judge and will be
summary in form. If there is a hearing, the Board may, at the
conclusion of the hearing, render a summary oral opinion deciding the
appeal. Any such oral opinion will be reduced to writing, and copies
will be given to both parties for record and payment purposes and to
establish a date for commencement of the period for filing a motion
pursuant to 6101.32 or 6101.33.
(2) In the absence of fraud, a decision under the small claims
procedure is final and conclusive and may not be appealed or set aside.
Such decisions shall have no value as precedent.
(e) Motions pursuant to 6101.31, 6101.32, and 6101.33. A motion
pursuant to 6101.31, 6101.32, or 6101.33 may be filed in an appeal
decided under the small claims procedure. Ordinarily, such a motion
will be decided by the administrative judge who decided the appeal or by
one other administrative judge of the Board.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26766, June 28, 1985)
48 CFR 6101.14 Accelerated procedure (Rule 14).
(a) General. The accelerated procedure is available in appeals
solely at the appellant's election. This procedure shortens the time
periods for many of the procedural steps required by this part so that
the Board may render its decision, where practicable, within 180 days
after the Board's receipt of the election. An appellant may elect the
accelerated procedure prescribed by this section, instead of the small
claims procedure prescribed by 6101.13, for any appeal eligible for the
small claims procedure. In cases proceeding under the accelerated
procedure, the parties are encouraged to the extent possible consistent
with adequate presentation of their factual and legal positions, to
waive pleadings, discovery, and briefs.
(b) Election of the accelerated procedure. In any appeal in which
the amount in controversy is $50,000 or less, the appellant may elect
the accelerated procedure.
(1) When election must be made. Except as the Board may otherwise
order, such an election shall be made by written notice filed with the
Board no later than 30 days after the date the appellant receives the
Board's notice of docketing. A late election may be made only by leave
of the Board.
(2) Rescission of election. The Board may rescind the appellant's
election of the accelerated procedure if it determines that the
appellant has not proceeded in accordance with the schedule established
pursuant to paragraph (c) of this Rule 14 and the appeal cannot
otherwise be resolved within 180 days after receipt of the appellant's
election.
(c) Proceedings in accelerated appeals. The Board may establish an
expedited schedule for the proceedings other than that prescribed in
paragraphs (c) (1) through (6) of this section. The Board will
ordinarily conduct a prehearing or presubmission conference pursuant to
6101.10 for this purpose. Except as the Board may otherwise order, the
parties shall proceed in accelerated appeals as follows:
(1) The respondent's appeal file exhibits shall be filed as
prescribed by 6101.4(a).
(2) The complaint shall be filed as prescribed by 6101.7(b).
(3) The appellant's appeal file exhibits shall be filed no later than
20 days after the filing of the respondent's appeal file exhibits.
(4) The answer shall be filed no later than 20 days after the filing
of the complaint.
(5) The election of each party prescribed by 6101.9 (Rule 9) shall be
filed no later than 60 days after receipt of the appellant's election of
the accelerated procedure.
(6) All discovery shall be concluded no later than 20 days before the
hearing date or, if neither party has elected a hearing, no later than
20 days before the date prescribed by the Board for first record
submissions under 6101.11(b).
(d) Decisions under the accelerated procedure. Decisions will be
written and may be rendered by a single administrative judge with the
concurrence of one other administrative judge. In the event the two
administrative judges disagree, the Chief Administrative Judge will
designate a third administrative judge to participate in the decision.
(e) Motions pursuant to 6101.31, 6101.32, and 6101.33. A motion
pursuant to 6101.31, 6101.32, or 6101.33 may be filed in an appeal
decided under the accelerated procedure.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26767, June 28, 1985)
48 CFR 6101.15 General provisions governing discovery (Rule 15).
(a) Discovery methods. The parties may obtain discovery by one or
more of the following methods.
(1) Depositions upon oral examinations or written questions;
(2) Written interrogatories;
(3) Requests for production of documents or other tangible things;
and
(4) Requests for admissions.
Unless otherwise ordered by the Board or provided by this part the
frequency of use of these methods is not limited.
(b) Scope of discovery. Except as otherwise limited by order of the
Board in accordance with this part, the parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending case, whether it relates to the claims or
defense of a party, including the existence, description, nature,
custody, condition, and location of any books, documents, or other
tangible things, and the identity and location of persons having
knowledge of any discoverable matter. It is not a ground for objection
that the information sought will be inadmissible if the information
sought appears reasonably calculated to lead to the discovery of
admissible evidence.
(c) Discovery limits. The Board may limit the frequency or extent of
use of the discovery methods set forth in this Rule 15 if it determines
that:
(1) The discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(2) The party seeking discovery has had ample opportunity by
discovery in the case to obtain the information sought; or
(3) The discovery is unduly burdensome and expensive, taking into
account the needs of the case, the amount in controversy, limitations on
the parties' resources, and the importance of the issues at stake.
(d) Conduct of discovery. Unless the Board orders otherwise, the
parties to an appeal may by written stipulation agree to the methods of
procedures to be used in discovery, except that agreements affecting the
time provided in 6101.17 (Rule 17) for responses to requests for
discovery may be made only with the approval of the Board. In protests,
the parties may engage in discovery only to the extent the Board enters
an order which either incorporates an agreed plan and schedule
acceptable to the Board or otherwise permits such discovery as the
moving party can demonstrate is required for the expeditious, fair, and
reasonable resolution of the protest and is consistent with the
requirements of 6101.19(a)(3). Permissive intervenors will not be
permitted full rights of discovery. When a petition has been filed, the
parties may engage in discovery only to the extent ordered by the Board.
(e) Discovery conference. At any time after a case has been filed,
and ordinarily within 6 days after the filing of a protest, upon
application of a party or on its own initiative, the Board may hold an
informal meeting or telephone conference with the parties to identify
the issues for discovery purposes; establish a plan and schedule for
discovery; set limitations on discovery, if any; and determine such
other matters as are necessary for the proper management of discovery.
The Board may include in the conference such other matters as it deems
appropriate in accordance with 6101.10 (Rule 10).
(f) Protective orders; discovery objections. (1) In connection with
any discovery procedure, the Board, on motion or on its own initiative,
may make any order which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery may be had only on specified terms and
conditions, including a designation of the time and place, or that the
scope of discovery be limited to certain matters;
(iii) That discovery be conducted with no one present except persons
designated by the Board;
(iv) That confidential information not be disclosed or that it be
disclosed only in a designated way; and
(v) Such other matters as justice may require.
(2) If a party objects to a discovery request, it may file, or the
Board may order it to file, a motion for a protective order with its
objections and serve them on the opposing party or parties.
(g) Failure to make or cooperate in discovery; sanctions. (1) If a
party fails (i) to appear before the officer who is to take his
deposition, after being served with a proper notice, or (ii) to serve
answers or objections to interrogatories submitted under 6101.17 (Rule
17), after proper service of interrogatories, or (iii) to serve a
written response to a request for inspection, production, and copying of
any documents and things under 6101.17 (Rule 17), the party seeking
discovery may move for the Board to impose appropriate sanctions under
paragraph (g)(3) of this Rule 15. The failure to act as described in
this paragraph may not be excused on the ground that the discovery
sought is objectionable unless the party failing to act has applied for
a protective order as provided in paragraph (f) of this Rule 15.
(2) A party may apply to the Board for an order compelling discovery
when another party refuses or obstructs discovery. If a motion to
compel discovery is denied in whole or in part, the Board may make a
protective order of the type listed in paragraph (f) of this Rule 15.
(3) When the Board has entered an order to provide or permit
discovery, and there is a failure to comply with that order, the Board
may make such orders with regard to the failure as are just, including
the following:
(i) An order that designated facts shall be taken to be established
for purposes of the case in accordance with the claim of the party
obtaining that order;
(ii) An order refusing to permit the disobedient party to support or
to oppose designated claims or defenses, or prohibiting it from
introducing designated matters in evidence; and
(iii) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed.
(h) Subpoenas. A party may request the issuance of a subpoena in aid
of discovery under the provision of 6101.20 (Rule 20).
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26767, June 28, 1985)
48 CFR 6101.16 Depositions (Rule 16).
(a) When depositions may be taken. After an appeal has been filed,
the parties may mutually agree to, or, upon application of a party, the
Board may order, the taking of testimony of any person by deposition
upon oral examination or written questions before an officer authorized
to administer oaths at the place of examination. In petitions and in
protests, depositions may be taken only pursuant to Board order.
Attendance of witnesses may be compelled by subpoena as provided in
6101.20, and the Board may upon motion order that the testimony at a
deposition be recorded by other than stenographic means, in which event
the order may designate the manner of recording, preserving, and filing
the deposition and may include other provisions to assure that the
recorded testimony will be accurate and trustworthy. If the order is
made, a party may, nevertheless, arrange to have a stenographic
transcription made at its own expense.
(b) Depositions: time; place; manner of taking. The time, place,
and manner of taking depositions, including the taking of depositions by
telephone, shall be as agreed upon by the parties or, failing such
agreement, as ordered by the Board. A deposition taken by telephone is
taken at the place where the deponent is to answer questions propounded
to him.
(c) Use of depositions. At a hearing on the merits or upon a motion
or interlocutory proceeding, any part or all of a deposition, so far as
admissible and as though the witness were then present and testifying,
may be used against a party who was present or represented at the taking
of the deposition or who had reasonable notice thereof, in accordance
with any of the following provisions:
(1) Any deposition may be used by a party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated to testify on behalf of, a public or private corporation,
partnership or association, or governmental agency, which is a party,
may be used by the adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used
by a party for any purpose in its own behalf if the Board finds that:
(i) The witness is dead;
(ii) The attendance of the witness at the place of hearing cannot be
reasonably obtained, unless it appears that the absence of the witness
was procured by the party offering the deposition;
(iii) The witness is unable to attend or testify because of illness,
infirmity, age, or imprisonment;
(iv) The party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
(v) Upon application and notice, exceptional circumstances exist
which make it desirable in the interest of justice and with due regard
to the importance of presenting the testimony of witnesses orally in
open hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require the offering party to introduce any other
part which in fairness ought to be considered with the part introduced.
(d) Depositions pending appeal from a decision of the Board. If an
appeal has been taken from a decision of the Board, or before the taking
of an appeal if the time therefor has not expired, the Board may allow
the taking of depositions of witnesses to perpetuate their testimony for
use in the event of further proceedings before the Board. In such case,
the party that desires to perpetuate testimony may make a motion before
the Board for leave to take the depositions as if the action was pending
before the Board. The motion shall show:
(1) The names and addresses of the persons to be examined and the
substance of the testimony which the moving party expects to elicit from
each; and
(2) The reasons for perpetuating the testimony of the persons named.
If the Board finds that the perpetuation of testimony is proper to
avoid a failure or a delay of justice, it may order the depositions to
be taken and may make orders of the character provided for in 6101.15
and in this section. Thereupon, the depositions may be taken and used
as prescribed in this part for depositions taken in actions pending
before the Board. Upon request and for good cause shown, an
administrative judge may issue or obtain a subpoena, in accordance with
6101.20, for the purpose of perpetuating testimony by deposition during
the pendency of an appeal from a Board decision.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 29231, July 18, 1985)
48 CFR 6101.17 Interrogatories to parties; requests for admissions;
requests for production of documents (Rule 17).
After a case has been filed, a party may serve on another party
written interrogatories, requests for admissions, and requests for
production of documents, except that in a petition and in a protest a
party must first obtain a Board order permitting such discovery.
(a) Written interrogatories. Written interrogatories shall be
answered separately in writing, signed under oath, and answered or
objected to in an appeal or petition within 30 days after service or, in
a protest, within 10 days after service. An interrogatory otherwise
proper is not necessarily objectionable merely because an answer to the
interrogatory may involve an opinion or contention that relates to fact
or the application of law to fact, but the Board may order that such an
interrogatory need not be answered until after designated discovery has
been completed or until a prehearing conference has been held, or some
other event has occurred.
(b) Option to produce business records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon which the interrogatory has been served or from an
examination, audit, or inspection of such business records, including a
compilation, abstract, or summary thereof, and the burden of deriving or
ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party served, it is a sufficient answer to
such interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit, or inspect such
records and to make copies, compilations, abstracts, or summaries
thereof. Such specification shall be in sufficient detail to permit the
interrogating party to locate and to identify, as readily as can the
party served, the records from which the answer may be ascertained.
(c) Written requests for admissions. A written request for the
admission of the truth of any matter, within the proper scope of
discovery, that relates to statements or opinions of fact or of the
application of law to fact, including the genuineness of any documents,
is to be answered in writing and signed or objected to, in an appeal or
petition, within 30 days after service or, in a protest, within 10 days
after service; otherwise, the matter therein may be deemed to be
admitted.
(d) Written requests for production of documents. A written request
for the production, inspection, and copying of any documents and things
shall be answered or objected to, in an appeal or petition, within 30
days, or, in a protest, within 10 days after service.
(e) Change in time for response. Upon request of a party, or on its
own initiative, the Board may prescribe a period of time other than that
specified in this section.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 29231, July 18, 1985)
48 CFR 6101.18 Hearing examiners (Rule 18).
(a) Designation. In appropriate cases the Chief Administrative Judge
may designate a duly appointed hearing examiner of the Board to conduct
proceedings in a case that has been assigned to a panel. Any such
designation shall be by written order of the Chief Administrative Judge,
who may specify the authority of the hearing examiner. A copy of such
designation shall be sent to each party. In the absence of any
specification in the order, and subject to paragraph (c) of this
section, the authority of the hearing examiner shall be as set forth in
paragraph (b) of this section. In no event shall the authority of the
hearing examiner specified in the order of designation exceed that set
forth in paragraph (b) of this section. A party may object in writing
to the designation of a hearing examiner to conduct a hearing. Such
objection must be filed with the Chief Administrative Judge within 5
days of the objecting party's receipt of notice of the designation. The
Chief Administrative Judge will rule on any such objection within 5 days
of its receipt.
(b) Authority. Subject to paragraph (c) of this section and
6101.1(e), a hearing examiner may be given the authority, with respect
to any case to which the hearing examiner has been designated, to:
(1) Correspond with the parties on behalf of the Board with respect
to any matter within the hearing examiner's authority;
(2) Perform any act that would be within the authority of a single
administrative judge of the Board, including the following:
(i) Establish the date and place of hearing;
(ii) Establish a schedule for record submissions when at least one of
the parties has elected not to attend a hearing;
(iii) Conduct a prehearing or presubmission conference and make
rulings or issue directions in the course of such a conference;
(iv) Conduct a hearing and make rulings in the course of that
hearing, except for a ruling on the suspension of procurement authority
pending a decision on a protest; and
(v) Make other rulings that do not relate to dispositive matters
during the pendency of the case; and
(3) Prepare recommended findings of fact and a recommended decision
to be proposed to the assigned panel for adoption by the Board.
(c) Limitations on authority. Notwithstanding any other provision of
this section, no hearing examiner of the Board may:
(1) Conduct any proceedings with respect to a case to which the
hearing examiner has not been designated or in contravention of the
order designating the hearing examiner;
(2) Conduct a hearing with respect to an appeal in which the amount
in dispute is greater than $50,000;
(3) Take any action that has the effect of an adjudication of the
case on the merits;
(4) Take any action that has the effect of striking, dismissing, or
granting partial summary judgment with respect to any claim or defense
of a party;
(5) Sign a subpoena; or
(6) Issue an oral decision at the conclusion of a hearing under the
small claims procedure.
(d) Amendment of rulings. Upon motion of a party, the chairman of
the panel to which an appeal has been assigned may amend, alter, or
vacate any ruling made by the hearing examiner prescribed in paragraph
(b) of this section. Such motions shall be filed within 5 days after
the hearing is completed or, in cases submitted on the record, within 5
days after notice by the Board to the parties that the record is closed.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 29231, July 18, 1985)
48 CFR 6101.19 Hearings: Scheduling; notice; unexcused absences;
suspension decision (Rule 19).
(a) Scheduling of hearings -- (1) In general. Hearings will be held
at the time and place ordered by the Board and will be scheduled at the
discretion of the Board. In scheduling hearings, the Board will
consider the requirements of this part, the need for orderly management
of the Board's caseload, and the stated desires of the parties as
expressed in their elections filed pursuant to 6101.9 or otherwise. The
time or place for hearing may be changed by the Board at any time.
(2) Suspension hearing. If an interested party in a protest filed
either before or after contract award requests a hearing for the Board
to determine whether to suspend procurement authority pending a decision
on the merits of the protest, such hearing shall be held, whenever
practicable, so that the determination whether to suspend will be made
before bid opening or the closing date for receipt of initial proposals
or, if bids have been opened or initial proposals received, before the
anticipated award of the contract, and in any event no later than 10
days after the filing of the protest. A request for a suspension
hearing will be denied if the protest is filed more than 10 calendar
days after contract award.
(3) Hearing protest on merits. A hearing on the merits of a protest
will be held no later than 25 days after the filing of the protest,
excluding Saturdays, Sundays, and federal holidays, provided that a
written request is filed by the protester, intervenor of right, or
intervening agency no later than 2 days after such party's receipt of
the protest answer.
(b) Notice of hearing. Notice of hearing will be by written order of
the Board, except that it may be oral for a suspension hearing held
under paragraph (a)(2) of this section. Notice of changes in the
hearing schedule will also be by written order when practicable but may
be oral in exigent circumstances. Except as the Board may otherwise
order, each party that plans to attend the hearing in an appeal shall,
within 10 days of receipt of (1) a written notice of hearing or (2) any
notice of a change in hearing schedule stating that an acknowledgment is
required, notify the Board in writing that it will attend the hearing.
Acknowledgment of a notice of hearing in a protest may be written or
oral and shall be given within such time as the notice prescribes.
(c) Unexcused absence from hearing. In the event of the unexcused
absence of a party from a hearing, the hearing will proceed, and the
absent party will be deemed to have elected to submit its case on the
record pursuant to 6101.11.
(d) Suspension decision. The Board shall suspend the respondent's
procurement authority, or a delegation thereof, pending a decision on
the merits of the protest, unless the respondent establishes at hearing
that: (1) absent suspension, contract award, if not already made, is
likely to occur within 30 days; and (2) urgent and compelling
circumstances which significantly affect interests of the United States
will not permit waiting for the decision of the Board. The decision
regarding suspension will be by order of the panel chairman and may be
oral, to be reduced to writing as soon as practicable.
48 CFR 6101.20 Subpoenas (Rule 20).
(a) Voluntary cooperation in lieu of subpoena. Each party is
expected to:
(1) Cooperate by making available witnesses and evidence under its
control, when requested by another party, without issuance of a
subpoena; and
(2) Secure voluntary attendance of third-party witnesses and
production of evidence by third parties, when practicable, without
issuance of a subpoena.
(b) Subpoenas in appeals governed by the Contract Disputes Act of
1978 and in protests pursuant to the Competition in Contracting Act of
1984 -- (1) General. Upon the written request of any party filed with
the Office of the Clerk of the Board, or on his or her own initiative,
an administrative judge to whom a case is assigned or who is otherwise
designated by the Chief Administrative Judge, may issue a subpoena that
commands the person to whom it is directed to:
(i) Attend and give testimony at a disposition in a city or county
where that person resides or is employed or transacts business in person
or at another location convenient to that person that is specifically
determined by the Board;
(ii) Attend and give testimony at a hearing; and
(iii) Produce the books, papers, documents, and other tangible things
designated in the subpoena.
(2) Request for subpoena. A request for a subpoena shall state the
reasonable scope and general relevance to the case of the testimony and
of any documentary evidence sought. A request for a subpoena shall be
filed at least:
(i) 15 days in an appeal or petition, or 5 days in a protest, before
a scheduled deposition where the attendance of a witness at a deposition
is sought; and
(ii) 30 days in an appeal or petition, or 10 days in a protest,
before a scheduled hearing where the attendance of a witness at a
hearing is sought.
The Board may, in its discretion, honor requests for subpoenas not
made within these time limitations.
(3) Form; issuance. (i) Every subpoena shall be in the form
specified in the appendix to this part. In issuing a subpoena to a
requesting party, the administrative judge shall sign the subpoena and
may, in his or her discretion, enter the name of the person to whom it
is directed, but shall otherwise leave it blank. The party to whom the
subpoena is issued shall complete the subpoena before service.
(ii) If the person subpoenaed is located in a foreign country, a
letter rogatory or a subpoena may be issued and served under the
circumstances and in the manner provided in 28 U.S.C. 781-784.
(4) Service. (i) The party requesting a subpoena shall arrange for
service. Service shall be made as soon as practicable after the
subpoena has been issued.
(ii) A subpoena requiring the attendance of a witness at a deposition
or hearing may be served at any place. A subpoena may be served by a
United States marshal or deputy marshal, or by any other person who is
not a party and not less than 18 years of age. Service of a subpoena
upon a person named therein shall be made by personally delivering a
copy to that person and tendering the fees for one day's attendance and
the mileage allowed by 28 U.S.C. 1821 or other applicable law; however,
where the subpoena is issued on behalf of the Government, money payments
need not be tendered in advance of attendance.
(5) Proof of service. The person serving the subpoena shall make
proof of service thereof to the Board promptly and in any event before
the date on which the person served must respond to the subpoena. Proof
of service shall be made by completing and executing and submitting to
the Board the ''Return on Service'' portion of a duplicate copy of the
subpoena issued by an administrative judge. If service is made by a
person other than a United States marshal or his deputy, that person
shall make an affidavit as proof by executing the ''Return on Service''
in the presence of a notary.
(6) Motion to quash or to modify. Upon written motion by the person
subpoenaed or by a party, made within 10 days after service, but in any
event not later than the time specified in the subpoena for compliance,
the Board may (i) quash or modify the subpoena if it is unreasonable and
oppressive or for other good cause shown, or (ii) require the party in
whose behalf the subpoena was issued to advance the reasonable cost of
producing subpoenaed documentary evidence. Where circumstances require,
the Board may act upon such a motion at any time after a copy has been
served upon opposing parties.
(7) Contumacy or refusal to obey a subpoena. In a case of contumacy
or refusal to obey a subpoena by a person who resides, is found, or
transacts business within the jurisdiction of a United States district
court, the Board shall apply to the court through the Attorney General
of the United States for an order requiring the person to appear before
the Board to give testimony, produce evidence or both. If a person
fails to obey such an order, the court may punish that person for
contempt of court.
(c) Subpoenas in appeals not governed by the Contract Disputes Act of
1978. (1) Upon written request of either party filed with the Office of
the Clerk of the Board in appeals not governed by the provisions of the
Contract Disputes Act of 1978, or on his or her own initiative, an
administrative judge to whom a case is assigned or who is otherwise
designated by the Chief Administrative Judge may obtain a subpoena from
an appropriate U.S. district court through the Department of Justice, in
accordance with the provisions of 5 U.S.C. 304, and Rule 45 of the
Federal Rules of Civil Procedure.
(2) A request for a subpoena under this paragraph shall be filed at
least 30 days in advance of a scheduled deposition or hearing. However,
the Board may, in its discretion, honor requests for subpoenas not made
within this time limitation.
(3) A request for a subpoena under this paragraph shall contain the
same information required under paragraph (b)(2) of this section.
(4) In a case of refusal to obey a subpoena, the Board may apply
appropriate sanctions or it may request the Department of Justice to
seek enforcement of the subpoena.
48 CFR 6101.21 Hearing procedures (Rule 21).
(a) Nature and conduct of hearings. All hearings on the merits of
cases shall be open to the public and conducted as far as is convenient
in regular hearing rooms. All other acts or proceedings may be done or
conducted by the Board either in its offices or at other places.
(b) Continuances; change of location. Whenever practicable, a
hearing will be conducted in one continuous session or a series of
consecutive sessions at single location. However, the Board may at any
time continue the hearing to a future date and may arrange to conduct
the hearing in more than one location. The Board may also continue a
hearing to permit a party to conduct additional discovery on conditions
established by the Board. In exercising its discretion to continue a
hearing or to change its location, the Board will give due consideration
to the same elements (set forth in 6101.19(a)) that it considers in
scheduling hearings.
(c) Availability of witnesses, documents, and other tangible things.
It is the responsibility of a party desiring to call any witness, or to
use any document or other tangible thing as an exhibit in the course of
a hearing, to ensure that whoever it wishes to call and whatever it
wishes to use is available at hearing.
(d) Enlargement of the record. The Board may at any time during the
conduct of a hearing require evidence or argument in addition to that
put forth by the parties.
(e) Examination of witnesses. Witnesses before the Board will
testify under oath or affirmation. A party or the Board may obtain an
answer from any witness to any question that is not the subject of an
objection that the Board sustains.
(f) Refusal to be sworn. If a person called as a witness refuses to
be sworn or to affirm before testifying, the Board may direct that
witness to do so, and in the event of continued refusal, the Board may
permit the taking of testimony without oath or affirmation.
Alternatively, the Board may refuse to permit the examination of that
witness, in which event it may state for the record the inferences it
draws from the witness's refusal to testify under oath or affirmation.
Alternatively, the Board may issue a subpoena to compel that witness to
testify under oath or affirmation, and in the event of the witness's
continued refusal to swear or affirm, may seek enforcement of that
subpoena pursuant to 6101.20.
(g) Refusal to answer. If a witness refuses to answer a question put
to him in the course of his testimony, the Board may direct that witness
to answer, and in the event of continued refusal, the Board may state
for the record the inferences it draws from the refusal to answer.
Alternatively, the Board may issue a subpoena to compel that witness to
testify and, in the event of the witness's continued refusal to testify,
may seek enforcement of that subpoena pursuant to 6101.20.
(h) Issues not raised by pleadings. If evidence is objected to at a
hearing on the ground that it is not within the issues raised by the
pleadings, it may nevertheless be admitted by the Board if it is within
the proper scope of the appeal. If such evidence is admitted, the Board
may grant the objecting party a continuance to enable it to meet such
evidence. If such evidence is admitted, the pleadings may be amended to
conform to the evidence, as provided by 6101.12(e).
(i) Delay by parties. If the Board determines that the hearing is
being unreasonably delayed by the failure of a party to produce
evidence, or by the undue prolongation of the presentation of evidence,
it may, by written order or by ruling from the bench, prescribe a time
or times within which the presentation of evidence must be concluded,
establish time limits on the direct or cross-examination of witnesses,
and enforce such order or ruling by appropriate sanctions.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26768, June 28, 1985)
48 CFR 6101.22 Admissibility and weight of evidence (Rule 22).
(a) Admissibility. Any relevant evidence may be received. The Board
may exclude relevant evidence to avoid unfair prejudice, confusion of
the issues, undue delay, waste of time, or needless presentation of
cumulative evidence. Hearsay evidence is admissible unless the Board
finds it unreliable or untrustworthy.
(b) Federal Rules of Evidence. As a general matter, and subject to
the other provisions of this section, the Board will base its
evidentiary rulings on the Federal Rules of Evidence.
(c) Weight and credibility. The Board will determine the weight to
be given to evidence and the credibility to be accorded witnesses.
(d) Submission of evidence in camera. 6101.12(h) governs submissions
in camera.
48 CFR 6101.23 Exhibits (Rule 23).
(a) Marking of exhibits. (1) Documents and other tangible things
offered in evidence by a party will be marked for identification by the
Board during the hearing or, if it is convenient for the Board and the
parties, before the commencement of the hearing. They will be numbered
consecutively as the exhibits of the party offering them.
(2) If a party elects to proceed on the record without a hearing
pursuant to 6101.11, documentary evidence submitted by that party will
be numbered consecutively by the Board as appeal or protest file
exhibits.
(b) Copies as exhibits. Except upon objection sustained by the Board
for good cause shown, copies of documents may be offered and received
into evidence as exhibits, and such copies shall have the same force and
effect as if they were the originals. If the Board so directs, a party
offering a copy of a document as an exhibit shall have the original
available at the hearing for examination by the Board and any other
party. When the original of a document has been received into evidence
as an exhibit, an accurate copy thereof may be substituted in evidence
for the original by leave of the Board at any time.
(c) Withdrawal of documentary exhibits and other papers. With the
permission of the Board, a party may remove an exhibit during the course
of a proceeding. Otherwise, no withdrawal of any papers in the Board's
file is permitted. Inspection of the file at the Board's offices is
permitted by 6101.12(g).
(d) Disposition of physical exhibits. Any physical (as opposed to
documentary) exhibit may be disposed of by the Board at any time more
than 90 days after the expiration of the period for appeal from the
decision of the Board, unless it has been earlier withdrawn by the party
that submitted it.
48 CFR 6101.24 Transcripts of proceedings; corrections (Rule 24).
(a) Transcripts. Except as the Board may otherwise order, all
hearings of appeals or petitions other than those under the small claims
procedure prescribed by 6101.13, and all hearings in connection with
protests will be stenographically or electronically recorded and
transcribed. Any other hearing or conference will be recorded or
transcribed only by order of the Board. Copies or transcriptions of
stenographic or electronic recordings not ordered to be transcribed by
the Board will be furnished to the parties or other persons only on
conditions prescribed by the Board, which may include the payment of the
costs of copying or transcription. Each party is responsible for
obtaining its own copy of the transcript if one is prepared.
(b) Corrections. Corrections to an official transcript will be made
only when they involve errors affecting its substance. The Board may
order such corrections on motion or on its own initiative, and only
after notice to the parties giving them opportunity to object. Such
corrections will ordinarily be made either by hand with pen and ink or
by the appending of an errata sheet, but when no other method of
correction is practicable the Board may require the reporter to provide
substitute or additional pages.
48 CFR 6101.25 Briefs and memoranda of law (Rule 25).
(a) Form and content of briefs and memoranda of law. Briefs and
memoranda of law shall be typewritten on standard size 8 1/2 by 11-inch
paper. Otherwise, no particular form or organization is prescribed.
Posthearing briefs should, at a minimum succinctly set forth (1) the
facts of the case with citations to those places in the record where
supporting evidence can be found and (2) argument with citations to
supporting legal authorities. Memoranda of law should generally adhere
as closely as practicable to the form and content of briefs.
(b) Submission and service of posthearing briefs. Except as the
Board may otherwise order, posthearing briefs shall be filed in an
appeal 30 days after the Board's receipt of the transcript and in a
protest 5 days after the Board's receipt of the transcript; reply
briefs in an appeal, if filed, shall be filed 15 days after the parties'
receipt of the initial posthearing briefs. The Board will notify the
parties of the date of its receipt of the transcript. The Board will
serve each party's brief on the other party or parties; this is an
exception to the general requirement for service of papers of 6101.3. In
the event one party has elected a hearing and any other party has
elected to submit its case on the record pursuant to 6101.11, the filing
of record submissions in the form of briefs shall be governed by this
section.
48 CFR 6101.26 Consolidation; separate hearings; separate
determination of liability (Rule 26).
(a) Consolidation. When cases involving common questions of law or
fact are pending, the Board may:
(1) Order a joint hearing of any or all of the matters at issue in
the cases;
(2) Order the cases consolidated; or
(3) Make such other orders concerning the proceedings therein as are
intended to avoid unnecessary costs or delay.
(b) Separate hearings. The Board may order a separate hearing of any
case or cases or of any claims or issues or number of claims or issues
therein. The Board may enter appropriate orders or decisions with
respect to any claims or issues that are heard separately.
(c) Separate determinations of liability. The Board may:
(1) Limit a hearing to those issues of law and fact relating to the
right of a party to recover, reserving the determination of the amount
of recovery, if any, for other proceedings; and
(2) In its decision of an appeal, irrespective of whether there is
evidence in the record concerning the amount of recovery, and whether or
not a stipulation or order has been made, reserve determination of the
amount of recovery for other proceedings. In any instance in which the
Board has reserved its determination of the amount of recovery for other
proceedings, its decision on the question of the right to recover shall
be final, subject to the provisions of 6101.31, 6101.32, and 6101.33.
48 CFR 6101.27 Stay or suspension of proceedings; dismissals in lieu of
stay or suspension (Rule 27).
(a) Stay of proceedings to obtain contracting officer's decision.
The Board may in its discretion stay proceedings to permit a contracting
officer to issue a decision when an appeal has been taken from the
contracting officer's alleged failure to render a timely decision.
(b) Suspension for other cause. The Board may suspend proceedings in
a case for good cause. The order suspending proceedings will prescribe
the duration of the suspension or the conditions on which it will
expire. The order may also prescribe actions to be taken by the parties
during the period of suspension or following its expiration.
(c) Dismissal in lieu of stay or suspension. When circumstances
beyond the control of the Board prevent the continuation of proceedings
in a case, the Board may, in lieu of issuing an order suspending
proceedings, dismiss the case without prejudice to reinstatement. Such
a dismissal may require reinstatement by a date certain or within a
certain period of time after the occurrence of a specified event. If
the order of dismissal does not otherwise provide, it will be subject to
the provisions of 6101.28(a).
48 CFR 6101.28 Dismissals (Rule 28).
(a) Voluntary dismissal. (1) Upon motion of the appellant or by
stipulation of the parties, a case may be dismissed by the Board.
Unless otherwise stated in the appellant's motion or in the stipulation,
the dismissal is without prejudice, except that such a dismissal
operates as an adjudication upon the merits when requested by an
appellant whose case based on or including the same claim has previously
been dismissed by the Board.
(2) When a case has been dismissed without prejudice and has not been
reinstated by the Board upon application of any party within three years
of the date of dismissal, or within such shorter period as the Board may
prescribe, the case shall be deemed to have been dismissed with
prejudice as of the expiration of the applicable period.
(b) Involuntary dismissal. (1) Upon motion of the respondent or upon
its own initiative, the Board may dismiss a case for failure to
prosecute or comply with this part or any order of the Board.
(2) Unless the Board in its order for dismissal otherwise specifies,
a dismissal under this paragraph (b), and any dismissal not provided for
in this rule, other than a dismissal for lack of jurisdiction, shall be
with prejudice and operate as an adjudication upon the merits.
48 CFR 6101.29 Decisions (Rule 29).
Except as provided in 6101.19(d) (protest suspension decision) and
6101.13 (small claims procedure), decisions of the Board will be made in
writing upon the record as prescribed in 6101.12. Each of the parties
will be furnished a copy of the decision certified by the Office of the
Clerk of the Board, and the date of the receipt thereof by each party
will be established in the record. A decision on the merits of a
protest will be issued within 45 days after the filing of the protest,
excluding Saturdays, Sundays, and federal holidays, unless the Board's
Chairman (Chief Administrative Judge) determines that the specific and
unique circumstances of the protest require a longer period. In that
event, the Board shall issue a decision within the longer period
determined by the Board's Chairman.
48 CFR 6101.30 Full Board consideration (Rule 30).
A request for full Board consideration is not favored. Ordinarily,
full Board consideration will be ordered only when (a) it is necessary
to secure or maintain uniformity of Board decisions, or (b) the matter
to be referred is one of exceptional importance. The Chief
Administrative Judge, on motion of any party, or at the request of any
administrative judge of the Board, or on his or her own initiative, may
order that a matter be considered by the full Board.
48 CFR 6101.31 Clerical mistakes (Rule 31).
Clerical mistakes in decisions, orders, or other parts of the record,
and errors arising therein through oversight or inadvertence, may be
corrected by the Board at any time on its own initiative or upon motion
of a party on such terms, if any, as the Board may prescribe. During
the pendency of an appeal from a Board decision, such mistakes may be so
corrected before the certified list of record materials or the record
itself is filed in the appellate tribunal, and thereafter while the
appeal is pending may be so corrected only with leave of the appellate
tribunal.
48 CFR 6101.32 Reconsideration; amendment of decisions; new hearings
(Rule 32).
(a) Grounds. Reconsideration may be granted, a decision or order may
be altered or amended, or a new hearing may be granted, for any of the
reasons stated in 6101.33(a) and the reasons established by the rules of
common law or equity applicable as between private parties in the courts
of the United States. Reconsideration, or a new hearing, may be granted
on all or any of the issues. On granting a motion for a new hearing,
the Board may open the decision if one has been issued, take additional
testimony, amend findings of fact and conclusions of law, or make new
findings and conclusions and direct the entry of a new decision.
(b) Procedure. Any motion under this section shall comply with the
provisions of 6101.8 and shall set forth:
(1) The reason or reasons why the Board should consider the motion;
and
(2) The relief sought and the grounds therefor.
If the Board concludes that the reasons asserted for its
consideration of the motion are insufficient, it may deny the motion
without considering the relief sought and the grounds asserted therefor.
If the Board grants the motion, it will issue an appropriate order
which may include directions to the parties for further proceedings.
(c) Time for filing. A motion for reconsideration, to alter or amend
a decision or order, or for a new hearing shall be filed in an appeal or
petition within 30 days and in a protest within 10 days after the date
of receipt by the moving party of the decision or order. Not later than
30 days after issuance of a decision or order, the Board may, on its own
initiative, order reconsideration or a new hearing or alter or amend a
decision or order for any reason that would justify such action on
motion of a party.
48 CFR 6101.33 Relief from decision or order (Rule 33).
(a) Grounds. The Board may relieve a party from the operation of a
final decision or order for any of the following reasons:
(1) Newly discovered evidence which could not have been earlier
discovered, even through due diligence;
(2) Justifiable or excusable mistake, inadvertence, surprise, or
neglect;
(3) Fraud, misrepresentation, or other misconduct of an adverse
party;
(4) The decision has been satisfied, released, or discharged, or a
prior decision upon which it is based has been reversed or otherwise
vacated, and it is no longer equitable that the decision should have
prospective application;
(5) The decision is void, whether for lack of jurisdiction or
otherwise; or
(6) Any other ground justifying relief from the operation of the
decision or order.
(b) Procedure. Any motion under this section shall comply with the
provisions of 6101.8 and 6101.32(b), and will be considered and ruled
upon by the Board as provided in 6101.32(b).
(c) Time for filing. Any motion under this section shall be filed as
soon as practicable after the discovery of the reasons therefor, but in
any event no later than 120 days, or, in protests and in appeals under
the small claims procedure of 6101.13, no later than 30 days after the
date of the moving party's receipt of the decision or order from which
relief is sought. In considering the timeliness of a motion filed under
this section, the Board may consider when the grounds therefor should
reasonably have been known to the moving party.
(d) Effect of motion. A motion under this section does not affect
the finality of a decision or suspend its operation.
48 CFR 6101.34 Harmless error (Rule 34).
No error in the admission or exclusion of evidence, and no error or
defect in any ruling, order, or decision of the Board, and no other
error in anything done or omitted to be done by the Board will be a
ground for granting a new hearing or for vacating, reconsidering,
modifying, or otherwise disturbing a decision or order of the Board
unless refusal to act upon such error will prejudice a party or work a
substantial injustice. At every stage of the proceedings the Board will
disregard any error or defect that does not affect the substantial
rights of the parties.
48 CFR 6101.35 Award of protest costs; amount of costs allowed (Rule
35).
(a) Award of protest costs. If the Board determines that a
challenged agency action violates a statute or regulation or the
conditions of any delegation of procurement authority under 40 U.S.C.
759, the Board may, in accordance with 31 U.S.C. 1304, award an
appropriate interested party the costs of:
(1) Filing and pursuing the protest, including reasonable attorney
fees; and
(2) Bid and proposal preparation.
(b) Amount of costs allowed. Within 30 days after a decision
sustaining a protest, an interested party may submit a motion, with
supporting documentation and certification of accuracy, requesting the
Board to issue an order requiring respondent to pay the costs described
in paragraph (a) of this section. Respondent will have 20 days after
its filing to respond to the motion, and after any hearing requested by
the moving party or respondent, the Board will then issue its
determination. The award will be paid pursuant to 6101.36.
(50 FR 1756, Jan. 11, 1985, as amended at 50 FR 26768, June 28, 1985;
50 FR 29231, July 18, 1985)
48 CFR 6101.36 Payment of Board awards (Rule 36).
(a) Generally. Payment of Board awards may be made in accordance
with 31 U.S.C. 1304.
(b) Conditions for payment. Before a party may obtain payment of a
Board award pursuant to 31 U.S.C. 1304, one of the following must occur:
(1) All parties must, by execution of a Certificate of Finality,
waive their rights to relief under 6101.32 and 6101.33 and also their
rights to appeal the decision of the Board to the U.S. Court of Appeals
for the Federal Circuit; or
(2) The time for filing an appeal to the U.S. Court of Appeals for
the Federal Circuit must expire.
(c) Procedure for filing of certificates of finality. Whenever the
Board issues a decision or an order awarding a party any amount of
money, it will attach to the copy of the decision sent to each party
forms such as those illustrated in the appendix to this part. The
conditions for payment prescribed in paragraph (b)(1) of this section
are satisfied if each of the parties returns a completed and duly
executed copy of this form to the Board. When the form is executed on
behalf of an appellant or appropriate interested party by an attorney or
other representative, proof of signatory authority shall also be
furnished. Upon receipt of completed and duly executed Certificates of
Finality from the parties, the Board will forward a copy of each such
certificate (together with proof of signatory authority, if required)
and a certified copy of its decision to the U.S. General Accounting
Office to be certified for payment.
(d) Procedure in absence of certificate of finality. When one or
more of the parties fails to submit a duly executed Certificate of
Finality, but the conditions for payment have been satisfied as provided
in paragraph (b)(2) of this section, any party to which an award has
been made may file a written request that the Board forward its decision
to the U.S. General Accounting Office for payment. Thereupon, the Board
will forward a copy of that request and a certified copy of its decision
to the U.S. General Accounting Office to be certified for payment.
(e) Offer of award. At any time after the filing of the case, the
respondent may make an offer of award. If such offer is accepted by the
appellant, the parties shall file with the Board a stipulation setting
forth the terms of the offer and stating (1) that they will not seek
reconsideration of, or relief from, the Board's decision and (2) that
they will not appeal the decision. The Board will adopt the parties'
stipulation by decision. The Board's decision under this paragraph is
an adjudication of the case on the merits.
48 CFR 6101.37 Record on review of a Board decision (Rule 37).
(a) Record on review. When a party has filed a petition for review
of a Board decision with the U.S. Court of Appeals for the Federal
Circuit under 41 U.S.C. 607(g)(1) or under 40 U.S.C. 759(h)(6)(A), the
record on review shall consist of the decision sought to be reviewed and
the record before the Board as described in 6101.12. When the appellant
has filed a notice of appeal of a decision in a pre-Contract Disputes
Act case to the U.S. Claims Court under 41 U.S.C. 321-322, the record on
appeal shall consist of the same materials.
(b) Notice. At the same time a party seeking review of a Board
decision files a petition for review or a notice of appeal, that party
shall file a copy of such petition with the Board.
(c) Filing of certified list of record materials. Promptly after
service upon the Board of a copy of a petition for review of a Board
decision, the Office of the Clerk of the Board shall file with the Clerk
of the U.S. Court of Appeals for the Federal Circuit a certified list of
all documents, transcripts of testimony, exhibits, and other materials
constituting the record, or a list of such parts thereof as the parties
may designate, adequately describing each. The Board will retain the
record and transmit any part thereof to the court upon the court's order
during the pendency of the appeal.
(d) Transmission of record or stipulated record in pre-Contract
Disputes Act cases. Within 40 days after the filing of the notice of
appeal, the Office of the Clerk of the Board shall transmit to the Clerk
of the U.S. Claims Court the entire record or such parts thereof as the
parties may designate by stipulation filed with the Board, except that
the Office of the Clerk of the Board shall retain documents and physical
exhibits of unusual weight or bulk other than those designated by the
parties. In lieu of filing the entire record or such parts thereof as
the parties may designate, the Office of the Clerk of the Board may file
a certified list of all materials constituting the record, or of such
parts thereof as the parties may designate. The parties may also
stipulate that neither the record nor a certified list be filed with the
court. If none of the record or only parts thereof are filed with the
court, the Board shall retain the parts not filed. Any stipulation of
the parties shall be filed with the Board in sufficient time for the
Office of the Clerk of the Board to assemble and file with the Clerk of
the U.S. Claims Court those parts of the record designated by the
stipulation, or a certified list of those parts, within the period
specified herein. Upon request of the court or a party, the record or
any part thereof retained by the Board shall be transmitted to the court
notwithstanding any prior stipulation.
48 CFR 6101.38 Office of the Clerk of the Board (Rule 38).
(a) Open for the filing of papers. The Office of the Clerk shall
receive all papers submitted for filing, and shall be open for this
purpose daily, at a time set by the Chief Administrative Judge, except
Saturdays, Sundays, and federal holidays.
(b) Decisions and orders. The Office of the Clerk shall keep in such
form and manner as the Board may prescribe a correct copy of each
decision or order of the Board subject to review and any other order or
decision which the Board may direct to be kept.
(c) Docket. The Office of the Clerk shall keep a docket on which
shall be entered the title and nature of all cases brought before the
Board, the names of the persons filing such cases, the names of the
attorneys or other persons appearing for the parties, and a record of
all proceedings.
(d) Copies and certification of papers. Upon the request of any
person, copies of papers and documents in a case may be provided by the
Office of the Clerk. When required, the Office of the Clerk will
certify copies of papers and documents as a true record of the Board.
Except as provided in 6101.23(c), the Office of the Clerk will not
release original records in its possession to any person.
48 CFR 6101.39 Seal of the Board (Rule 39).
The Seal of the Board shall be a circular boss, the center portion of
which shall depict the Seal of the General Services Administration. The
outer margin of the seal shall bear the legend ''Board of Contract
Appeals''. The Seal shall be the means of authentication of all
records, notices, orders, dismissals, opinions, subpoenas, and
certificates issued by the Board.
(50 FR 26768, June 28, 1985)
48 CFR 6101.40 Forms (Rule 40).
The forms contained in the Appendix to this part are sufficient under
this part and are intended to indicate the simplicity and brevity of
statement which this part contemplates. The subpoena form is a required
form, and it may not be altered.
48 CFR 6101.40 Pt. 6101, App.
48 CFR 6101.40 Appendix -- Form Nos. 1-5
Form Index
Form 1 -- Notice of Appeal, GSA form 2465
Form 2 -- Notice of Appearance
Form 3 -- Subpoena, GSA form 9534
Form 4 -- Government Certificate of Finality
Form 5 -- Appellant/Protester/Intervenor Certificate of Finality
48 CFR 6101.40 Pt. 6101, App., Form 1
Insert illus. 0178
48 CFR 6101.40 Pt. 6101, App., Form 2
Insert illus. 0179
48 CFR 6101.40 Pt. 6101, App., Form 3
Insert illus. 0185
48 CFR 6101.40 Pt. 6101, App., Form 3
Insert illus. 0180
48 CFR 6101.40 Pt. 6101, App., Form 4
Insert illus. 0181
48 CFR 6101.40 Pt. 6101, App., Form 5
Insert illus. 0182
(50 FR 26768, June 28, 1985)
48 CFR 6101.40 48 CFR Ch. 63 (10-1-91 Edition)
48 CFR 6101.40 Department of Transportation Board of Contract Appeals
48 CFR 6101.40 CHAPTER 63 -- DEPARTMENT OF TRANSPORTATION BOARD OF CONTRACT APPEALS
48 CFR 6101.40 (Parts 6300 and 6399)
Part
Page
6301 Board of contract appeals
6302 Rules of procedure
48 CFR 6101.40
48 CFR 6101.40 48 CFR Ch. 63 (10-1-91 Edition)
48 CFR 6101.40 DOT Board of Contract Appeals
48 CFR 6101.40 PART 6301 -- BOARD OF CONTRACT APPEALS
Sec.
6301.0 Foreword.
6301.1 Scope of part.
6301.2 Qualifications of members.
6301.3 Jurisdiction and authority of the Board and its members.
6301.4 Ex Parte communications.
6301.5 Contract appeals procedures (general).
6301.6 Effective date.
Authority: Contract Disputes Act of 1978 (41 U.S.C. 600, et seq.).
Source: 52 FR 48630, Dec. 23, 1987, unless otherwise noted.
48 CFR 6301.0 Foreword.
A Department of Transportation Board of Contract Appeals has been
established pursuant to Pub. L. 95-563. The Secretary appoints the
members of the Board and designates the Chair and Vice-Chair of the
Board.
48 CFR 6301.1 Scope of part.
(a) Scope. This part prescribes the functions and procedures of the
Department of Transportation Board of Contract Appeals and provides for
the appointment of a Chair, a Vice-Chair, and Members of the Board, and
sets forth their duties.
(b) Definitions. For the purposes of this part --
Administrative Judge means a member of the Board selected and
appointed to serve pursuant to the Contract Disputes Act of 1978;
Appellant means the contractor who appeals;
Board means the Department of Transportation Board of Contract
Appeals;
Contracting officer means the Government's contracting officer whose
decision is appealed, or the successor contracting officer;
Parties means the appellant and the contracting officer, and
Secretary means the Secretary of Transportation.
48 CFR 6301.2 Qualifications of members.
Each member of the Board must be a qualified attorney who is admitted
to practice before the highest court of a State or the District of
Columbia. Members of the Board are selected and appointed to serve in
the same manner as administrative law judges appointed pursuant to
section 3105 of title 5 of the United States Code, with the additional
requirement that each member shall have had not fewer than five years
experience in public contract law.
48 CFR 6301.3 Jurisdiction and authority of the Board and its members.
(a) The Board hears and decides:
(1) Appeals from decisions made by contracting officers relating to
contracts of the Department of Transportation and its constituent
administrations;
(2) Appeals from decisions of contracting officers relating to
contracts of any other executive agency when such agency or the
Administrator for Federal Procurement Policy has designated the Board to
decide the appeal;
(3) Matters within jurisdiction of the Board in accordance with the
provisions of the Contract Disputes Act, 41 U.S.C. 600 et seq. ; and
(4) Other matters as directed by the Secretary which are not
inconsistent with statutory duties.
In each case, the Board shall make a final decision which is
impartial, fair, and just to the parties and is supported by the record
of the case and the law. The Administrative Judge assigned to hear an
appeal has authority to act for the Board in all matters with respect to
such appeal. Included in such authority is the authority to sign
subpoenas and the power to authorize the Recorder of the Board to issue
subpoenas pursuant to section 11 of the Contract Disputes Act of 1978.
(41 U.S.C. 610)
(b) An Administrative Judge may not act for the Board or participate
in a decision if that Judge has participated directly in any aspect of
the award or administration of the contract involved.
(c) Except for appeals considered under the expedited small claims or
accelerated procedures, appeals are assigned to a panel of three
Administrative Judges of the Board. The decision of a majority of the
panel shall constitute the decision of the Board.
48 CFR 6301.4 Ex Parte communications.
Ex parte communications, that is, written or oral communications with
the Board by or for one party only without notice to the other, are not
permitted. No member of the Board or of the Board's staff shall
consider, nor shall any person directly or indirectly involved in an
appeal submit to the Board or to the Board's staff, off-the-record, any
evidence, explanation, analysis, or advice, whether written or oral,
regarding any matter at issue in an appeal. This provision does not
apply to consultation between Board members nor to ex parte
communications concerning the Board's administrative functions or
procedures.
48 CFR 6301.5 Contract appeals procedures (general).
(a) It is the intent of these rules to provide for the just and
inexpensive determination of appeals without unnecessary delay. It is
the objective of the Board's preliminary procedures to encourage full
disclosure of relevant and material facts, and to discourage surprise.
Each specified time limitation is a maximum, and should not be fully
used if the action described can be accomplished in a shorter period.
The Board may extend any time limitation for good cause and in
accordance with legal precedent.
(b) Ordinarily, the appellant has the burden of proof.
(c) The rules of procedure at 6302 shall govern the procedures in all
contract disputes appealed to the Board.
48 CFR 6301.6 Effective date.
This chapter shall apply to all appeals relating to contracts entered
into on or after March 1, 1979, and upon the contractor's election of
Contract Disputes Act procedures, to appeals relating to earlier
contracts with respect to claims pending before the contracting officer
on March 1, 1979, or initiated thereafter.
48 CFR 6301.6 PART 6302 -- RULES OF PROCEDURE
Sec.
6302.1 How to appeal a contracting officer's decision (Rule 1).
6302.2 Contents of notice of appeal (Rule 2).
6302.3 Docketing of appeals (Rule 3).
6302.4 Preparation, contents, organization, forwarding, and status of
appeal file (Rule 4).
6302.5 Service of documents (Rule 5).
6302.6 Computation and extension of time limits (Rule 6).
6302.7 Motions (Rule 7).
6302.8 Appellant's election of procedures (Rule 8).
6302.9 The SMALL CLAIMS (EXPEDITED) procedure (Rule 9).
6302.10 The ACCELERATED procedure (Rule 10).
6302.11 Submission of appeal without a hearing (Rule 11).
6302.12 Regular procedure (Rule 12).
6302.13 Pleadings (Rule 13).
6302.14 Amendments of pleadings or record (Rule 14).
6302.15 Prehearing briefs (Rule 15).
6302.16 Prehearing conference (Rule 16).
6302.17 The record of the appeal (Rule 17).
6302.18 Discovery -- depositions (Rule 18).
6302.19 Interrogatories to parties, admission of facts, and
inspection of documents (Rule 19).
6302.20 Time and place of hearing (Rule 20).
6302.21 Notice of hearing (Rule 21).
6302.22 Unexcused absence of a party (Rule 22).
6302.23 Nature of hearings (Rule 23).
6302.24 Subpoenas (Rule 24).
6302.25 Copies of papers (Rule 25).
6302.26 Posthearing briefs (Rule 26).
6302.27 Transcript of proceedings (Rule 27).
6302.28 Withdrawal of exhibits (Rule 28).
6302.29 Representation of the parties (Rule 29).
6302.30 Alternative dispute resolution methods (Rule 30).
6302.31 Settlement (Rule 31).
6302.32 Decisions (Rule 32).
6302.33 Motion for reconsideration (Rule 33).
6302.34 Dismissal for lack of jurisdiction (Rule 34).
6302.35 Dismissal without prejudice (Rule 35).
6302.36 Dismissal for failure to prosecute or defend (Rule 36).
6302.37 Sanctions (Rule 37).
6302.38 Remand from court (Rule 38).
Authority: Contract Disputes Act of 1978 (41 U.S.C. 600, et seq.).
Source: 52 FR 48631, Dec. 23, 1987, unless otherwise noted.
48 CFR 6302.1 How to appeal a contracting officer's decision (Rule 1).
(a) Notice of an appeal shall be in writing and mailed or otherwise
furnished to the Board within 90 days from the date of receipt of a
contracting officer's decision. A copy of the notice shall be furnished
to the contracting officer from whose decision the appeal is taken.
(b) Where the contractor has submitted a claim of $50,000 or less to
the contracting officer and has requested a written decision within 60
days from receipt of the request, and the contracting officer has not
done so, the contractor may file a notice of appeal as provided in
paragraph (a) of this section citing the failure of the contracting
officer to issue a decision.
(c) Where the contractor has submitted a claim in excess of $50,000
to the contracting officer and the contracting officer has failed to
issue a decision within a reasonable time, the contractor may file a
notice of appeal as provided in paragraph (a) of this section, citing
the failure to issue a decision.
(d) Upon docketing of appeals filed pursuant to paragraph (b) or (c)
of this section, the Board, at its option, may stay further proceedings
pending issuance of a final decision by the contracting officer within
the time fixed by the Board or order the appeal to proceed without the
contracting officer's decision.
48 CFR 6302.2 Contents of notice of appeal (Rule 2).
A notice of appeal must indicate that an appeal is intended and
identify the contract number, the administration, bureau, or office
concerned with the dispute, the decision from which the appeal is taken,
and the amount in dispute, if known. The notice of appeal shall be
signed by the appellant, or by an officer of an appellant corporation or
member of an appellant firm, or by an appellant's authorized
representative or attorney.
48 CFR 6302.3 Docketing of appeals (Rule 3).
Following receipt by the Board of the original notice of appeal, the
appellant and the contracting officer are promptly notified of its
receipt and docketing by the Board, and the Board furnishes a copy of
these rules to the appellant.
48 CFR 6302.4 Preparation, contents, organization, forwarding, and
status of appeal file (Rule 4).
(a) Duties of contracting officer. Within 30 days after receipt of
notice that an appeal has been docketed, the contracting officer shall
assemble and transmit to the Board, with a copy to the appellant and the
Government attorney, an appeal file consisting of all documents
pertinent of the appeal, including:
(1) The contracting officer's decision and finding of fact from which
the appeal is taken;
(2) The contract, including pertinent specifications, modifications,
plans, and drawings;
(3) All correspondence between the parties pertinent to the appeal,
including the letters of claim in response to which the decision was
issued;
(4) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witnesses on the matter
in dispute made prior to the filing of the notice of appeal with the
Board; and
(5) Any additional information considered pertinent.
(b) Duties of the appellant. Within 30 days after receipt of a copy
of the appeal file assembled by the contracting officer, the appellant
may supplement the file by transmitting to the Board any additional
documents which it considers pertinent to the appeal and shall furnish
two copies of such documents to the Government attorney.
(c) Organization of appeal file. Documents in the appeal file may be
originals or legible facsimiles or authenticated copies, and shall be
arranged in chronological order where practicable, numbered
sequentially, tabbed, and indexed to identify the contents of the file.
The contracting officer's final decision and the contract shall be
conveniently placed in the file for ready reference.
(d) Lengthy documents. The Board may waive the requirement of
furnishing to the other party copies of bulky, lengthy, or out-of-size
documents in the appeal file when a party has shown that doing so would
impose an undue burden. At the time a party files with the Board a
document as to which such a waiver has been granted, the other party
shall be notified that the document or a copy is available for
inspection at the offices of the Board or of the party filing the
document.
(e) Status documents in appeal file. Documents contained in the
appeal file are, without further action by the parties, a part of the
record upon which the Board renders its decision, unless a party objects
to the consideration of a particular document at or before the hearing
or, if there is no hearing on the appeal, before closing the record. If
objection to a document is made, the Board rules upon its admissibility
into the record as evidence in accordance with Rules 17 and 23.
48 CFR 6302.5 Service of documents (Rule 5).
A copy of every written communication submitted to the Board shall be
sent to every party to the dispute. Such communications shall be sent
by delivering in person or by mailing, properly addressed with postage
prepaid, to the opposing party or, where the party is represented by
counsel, to its counsel. Each communication with the Board shall be
accompanied by a statement, signed by the originating party, saying
when, how, and to whom a copy was sent.
48 CFR 6302.6 Computation and extension of time limits (Rule 6).
(a) Computation. Except as otherwise provided by law, in computing
any period of time prescribed by these rules, or by any order of the
Board, the day of the event from which the designated period of time
begins to run is not included, but the last day of the period is
included unless it is a Saturday, Sunday, or a legal holiday, in which
case the period runs to the end of the next business day.
(b) Extensions. All requests for extensions of time shall be
submitted to the Board in writing and shall state good cause for the
request.
48 CFR 6302.7 Motions (Rule 7).
(a) Motions are made by filing an original and two copies, together
with any supporting papers, with the Board. Motions may also be made
upon the record, in the presence of the other party, at a prehearing
conference or a hearing. The Board considers any timely motion:
(1) For extensions of time (Rule 6) or to cure defaults;
(2) To require that a pleading be made more definite and certain, or
for leave to amend a pleading (Rule 14);
(3) To dismiss for lack of jurisdiction (Rule 34); to dismiss for
failure to prosecute (Rule 36); or to grant summary relief because a
pleading does not raise a justifiable issue;
(4) For discovery, for interrogatories to a party, or for the taking
of depositions (Rules 18 and 19);
(5) To reopen a hearing; or to reconsider a decision (Rule 33), or
(6) For any other appropriate order.
(b) The Board may, on its own motion, initiate any such action by
notice to the parties. Unless a longer time is allowed by the Board, a
party who receives a motion shall file any answering material within 20
days after the date of receipt. The Board makes an order on each motion
that is appropriate and just to the parties, and upon conditions that
will promote efficiency in disposing of the appeal.
(c) The Board may permit oral hearing or argument on motions, and may
require the presentation of briefs.
48 CFR 6302.8 Appellant's election of procedures (Rule 8).
(a) In every appeal the appellant is required to elect one of the
following procedures:
(1) A hearing under the Board's regular procedure (Rule 12);
(2) A hearing under the SMALL CLAIMS (EXPEDITED) procedure, if
applicable (Rule 9);
(3) A hearing under the Board's ACCELERATED procedure, if applicable
(Rule 10), or
(4) Submission on the written record or without a hearing (Rule 11).
Also see Rule 11 with respect to the Government's right to waive a
hearing.
(b) The SMALL CLAIMS (EXPEDITED) procedure is available where the
amount in dispute is $10,000 or less (Rule 9). The ACCELERATED
procedure is available where the amount in dispute is $50,000 or less
(Rule 10). In deciding whether the SMALL CLAIMS (EXPEDITED) or
ACCELERATED procedure is applicable to an appeal, any question regarding
the amount in dispute shall be determined by the Board.
(c) The appellant's election of one of the above procedures shall be
made in writing within 30 days after receipt of the appeal file unless
such period is extended by the Board for good cause shown. The election
may not be withdrawn except with permission of the Board and for good
cause shown.
48 CFR 6302.9 The SMALL CLAIMS (EXPEDITED) procedure (Rule 9).
(a) The SMALL CLAIMS (EXPEDITED) procedure provides for simplified
rules of procedure to facilitate the decision of an appeal, whenever
possible, within 120 days from the date such procedure is elected.
(b) Promptly upon receipt of an appellant's election of the SMALL
CLAIMS (EXPEDITED) procedure, the assigned Administrative Judge shall
take the following actions, if feasible, in an informal meeting or a
telephone conference with both parties:
(1) Identify and simplify the issues in dispute;
(2) Establish a simplified procedure appropriate to the particular
appeal;
(3) Determine whether the appellant desires a hearing and, if so, fix
a time and place for the hearing, and
(4) Establish a schedule for the expedited resolution of the appeal.
(c) The subpoena power set forth in Rule 24 is available for use
under the SMALL CLAIMS (EXPEDITED) procedure.
(d) The filing of pleadings, motions, discovery proceedings or
prehearing procedures will be permitted only to the extent consistent
with the requirement of conducting the hearing at the scheduled time and
place or, if no hearing is scheduled, of closing the record at an early
time so as to permit a decision of the appeal within the 120-day time
limit. The Board, in its discretion, may impose shortened time periods
for any actions required or permitted under these rules, necessary to
enable the Board to decide the appeal within the 120-day time limit,
allowing whatever time, up to 30 days, that the Board considers
necessary for the preparation of the decision after closing the record
and the filing of briefs, if any.
(e) Decisions in appeals considered under the SMALL CLAIMS
(EXPEDITED) procedure are rendered by a single Administrative Judge.
Written decisions of appeals considered under this procedure are short
and contain only summary findings of fact and conclusions. If there has
been a hearing on the appeal, the presiding Administrative Judge may, in
his or her discretion, hear closing oral arguments of the parties and
then render an oral decision on the appeal. Such decision will include
summary findings of fact and conclusions. Whenever such an oral
decision is rendered, the Board subsequently furnishes the parties with
a written transcript of the oral decision for record and payment
purposes and to commence the time period for the filing of a motion for
reconsideration under Rule 33.
(f) Decisions of the Board under the SMALL CLAIMS (EXPEDITED)
procedure shall have no value as precedent. Except in cases of fraud,
decisions rendered under the SMALL CLAIMS (EXPEDITED) procedure may not
be appealed by either party.
48 CFR 6302.10 The ACCELERATED procedure (Rule 10).
(a) The ACCELERATED procedure makes available a procedure where the
appeal is resolved, whenever possible, within 180 days from the date
such procedure is elected.
(b) Promptly upon receipt of appellant's election of the ACCELERATED
procedure, the assigned Administrative Judge shall take the following
actions, if feasible, in an informal meeting or a telephone conference
with both parties:
(1) Identify and simplify the issues in dispute;
(2) Establish a simplified procedure appropriate to the particular
appeal;
(3) Determine whether a hearing is desired and, if so, fix a time and
place for a hearing; and
(4) Establish a schedule for the accelerated resolution of the
appeal.
(c) The subpoena power set forth in Rule 24 is available for use
under the ACCELERATED procedure.
(d) The filing of pleadings, motions, discovery proceedings or
prehearing procedures will be permitted only to the extent consistent
with the requirement of conducting the hearing at the scheduled time and
place or, if no hearing is scheduled, the closing of the record at an
early time so as to permit decision of the appeal with the 180-day
limit. The Board, in its discretion, may impose shortened time periods
for any actions required or permitted under these rules, necessary to
enable the Board to decide the appeal within the 180-day limit, allowing
whatever time, up to 30 days, that the Board considers necessary for the
preparation of the decision after closing the record and the filing of
briefs, if any.
(e) Decisions in appeals considered under the ACCELERATED procedure
are rendered by a single Administrative Judge, subject to the
concurrence of the Vice-Chair or another assigned Administrative Judge.
In the event of an even division on an appeal, the Chair participates in
the decision of the appeal. Written decisions of appeals considered
under this procedure are short and contain only summary findings of fact
and conclusions. In cases where the amount in dispute is $10,000 or
less and there has been a hearing under the ACCELERATED procedure the
presiding Administrative Judge may, in his or her discretion, hear
closing oral arguments of the parties and then render an oral decision
on the appeal. Such decision will include summary findings of fact and
conclusions. Whenever such an oral decision is rendered the Board
subsequently furnishes the parties with a written transcript of the oral
decision for record and payment purposes and to commence the time period
for the filing of a motion for reconsideration under Rule 33.
(f) Decisions of the Board under the ACCELERATED procedure are
published and have precedential value. Such decisions may be appealed
by either party.
48 CFR 6302.11 Submission of appeal without a hearing (Rule 11).
Either party may elect to waive a hearing and to submit its case upon
the record before the Board pursuant to Rule 17. Submission of a case
without hearing does not relieve a party from the necessity of proving
the facts supporting that party's allegation or defenses. Affidavits,
depositions, admissions, answers to interrogatories, and stipulations
may be employed to supplement other documentary evidence in the Board
record. The Board may permit such submission to be supplemented by oral
argument (transcribed if requested) and by briefs in accordance with
Rule 26.
48 CFR 6302.12 Regular procedure (Rule 12).
Under the regular procedure the parties are required to file
pleadings with the Board (Rule 13). The regular procedure affords the
parties an opportunity to make full use of prehearing and discovery
procedures. Hearings under the regular procedure are conducted in the
same manner as before courts of the United States in non-jury trials.
48 CFR 6302.13 Pleadings (Rule 13).
(a) Complaint. Under the regular procedure the appellant, within 30
days after receipt of the appeal file, shall file with the Board an
original and two copies of a complaint setting forth simple, concise,
and direct statements of each of its claims, alleging the basis, with
appropriate reference to contract provisions, for each claim, and the
dollar amount claimed. This pleading shall fulfill the generally
recognized requirements of a complaint, although no particular form is
required. If the complaint is not filed within 30 days and, in the
opinion of the Board, the issues before the Board are sufficiently
defined, the appellant's claim and notice of appeal may be deemed to be
its complaint, and the parties are so notified.
(b) Answer. Within 30 days from receipt of said complaint or a Rule
13(a) notice from the Board, the Government shall file with the Board an
original and two copies of an answer, setting forth simple, concise, and
direct statements of the Government's defense to each claim asserted by
appellant. This pleading shall fulfill the generally recognized
requirements of an answer and shall set forth any affirmative defenses
as appropriate. Should the answer not be filed within 30 days, the
Board may, in its discretion, enter a general denial on behalf of the
Government, and the parties are so notified.
48 CFR 6302.14 Amendments of pleadings or record (Rule 14).
(a) Pleadings. The Board upon its own initiative or upon application
by a party may, in its discretion, order a party to make a more definite
statement of the complaint or answer, or to reply to an answer. The
application for such an order suspends the time for responsive pleading.
The Board may, in its discretion and within the proper scope of the
appeal, permit either party to amend its pleadings upon conditions just
to both parties.
(b) Record. When an issue within the proper scope of the appeal, but
not raised by the pleadings, is tried by consent of the parties or by
permission of the Board, the issue is treated in all respects as if it
had been raised. A motion to amend the pleadings to conform to the
proof may be made but is not required. If evidence is objected to at a
hearing on the ground that it is not within an issue raised by the
pleadings, it may be admitted in evidence, but the objecting party may
be granted a continuance if necessary to enable him to meet such
evidence.
48 CFR 6302.15 Prehearing briefs (Rule 15).
The Board may, in its discretion, require the parties to submit
prehearing briefs in any case in which a hearing has been elected under
the regular procedure. (Rule 8(a)(1)). If the Board does not ask for
briefs, either party may, upon notice to the other party, furnish a
prehearing brief to the Board. In any case where a prehearing brief is
submitted, it shall be furnished so as to be received by the Board at
least 15 days prior to the date set for hearing, and a copy shall be
furnished simultaneously to the other party.
48 CFR 6302.16 Prehearing conference (Rule 16).
(a) Whether the case is to be submitted on the written record or be
heard under any hearing procedure, the Board, upon its own initiative or
upon the application of any party, may call upon the parties to appear
before the Board for a conference to consider:
(1) The simplification, clarification, or severing of the issues;
(2) The possibility of obtaining stipulations, admissions, agreements
on documents, understandings on matters already of record, or similar
agreements which will avoid unnecessary proof;
(3) The limitation of the number of expert witnesses and the
avoidance of similar cumulative evidence;
(4) The possibility of agreement disposing of all or any of the
issues in dispute, and
(5) Such other matters as may aid in the disposition of the appeal.
The result of the conference is set forth in an appropriate memorandum
or order which becomes part of the record.
(b) In addition to the procedures provided in paragraph (a) of this
section, the Board may direct any party whose claim is based in whole or
in part on books of account or other records to furnish to the other
party a statement showing the items and figures intended to be proved,
with adequate reference to the books and records from which such figures
were taken, and to make all such books and records available for
examination by the other party. The Board may also direct any party to
whom such a statement of items and figures has been submitted:
(1) To make an examination of such books or records or waive
challenge of the accuracy of the statement submitted as reflecting the
contents of such books and records; and
(2) To furnish the submitting party a schedule or schedules showing
the results of such examination, with specific references to the books
and records from which such figures were taken, where the examining
party's results and figures are different from those contained in the
statement submitted.
48 CFR 6302.17 The record of the appeal (Rule 17).
(a) Contents. The record upon which the Board's decision is rendered
consists of the appeal file, (Rule 4) and, if filed, the pleadings,
prehearing conference memoranda or orders, prehearing briefs,
depositions and interrogatories and answers to interrogatories received
in evidence, admissions, stipulations, transcripts of hearings, hearing
exhibits, post-hearing briefs, and documents which the Board has
specifically made a part of the record. The record is available for
inspection at the offices of the Board at all reasonable times.
(b) Time of closing the record. Except as the Board, in its
discretion, may otherwise order, no proof is received in evidence after
completion of the hearing of the appeal or, in cases submitted on the
record, after notification by the Board that the case is ready for
decision.
(c) Weight of the evidence. The weight to be attached to any
evidence of record rests within the sound discretion of the Board. The
Board may require any party to submit additional evidence on any matter
relevant to the appeal.
48 CFR 6302.18 Discovery-depositions (Rule 18).
(a) General policy and protective orders. The parties are encouraged
to engage in voluntary discovery procedures. In connection with any
deposition or other discovery procedure, the Board may make any order
which justice requires to protect a party or person from annoyance,
embarrassment, oppression, undue burden or expense. Such orders may
include limitations on the scope, method, time and place for discovery,
or provisions for protecting the secrecy of confidential information or
documents.
(b) Obtaining a deposition. After an appeal has been docketed, the
parties may voluntarily agree to take, or the Board may, upon
application of either party and for good cause shown, order the taking
of, testimony of any person by deposition upon oral examination or
written interrogatories before any officer authorized to administer
oaths at the place of examination, for use as evidence or for purposes
of discovery. The application for such order shall specify whether the
purpose of the deposition is for discovery or for use as evidence.
(c) Orders on depositions. The time, place, and manner of taking
depositions are as mutually agreed upon by the parties, or failing such
agreement, as ordered by the Board.
(d) Use of evidence. No testimony taken by deposition is considered
as part of the evidence in the hearing of an appeal unless and until
such testimony is offered and received in evidence at the hearing.
Testimony by deposition is not ordinarily received in evidence if the
deponent is present and can testify at the hearing. However, any
deposition may be used to contradict or impeach the testimony of a
witness at the hearing. In cases submitted on the record, the Board, in
its discretion, may receive depositions as evidence to supplement the
record.
(e) Expenses. Each party bears its own expenses associated with
discovery, unless, in the discretion of the Board, the expenses are
apportioned otherwise.
(f) Subpoenas. Where appropriate, any party may request that a
subpoena be issued under the provisions of Rule 24.
(52 FR 48631, Dec. 23, 1987, as amended at 53 FR 34106, Sept. 2,
1988)
48 CFR 6302.19 Interrogatories to parties, admission of facts, and
inspection of documents (Rule 19).
(a) Interrogatories to parties. After an appeal has been filed with
the Board, a party may serve on the other party written interrogatories
to be answered separately in writing, signed under oath, and returned
within 30 days of receipt by the answering party. Within 30 days after
service the answering party may object to any interrogatory and the
Board determines the extent to which the interrogatory is permitted.
(b) Admission of facts. After an appeal has been filed with the
Board, a party may serve upon the other party a written request for the
admission of specified facts. If the request is to admit the
genuineness of any document or the truth of any facts stated in a
document, a copy of such document shall be served with the request.
Within 30 days after receipt of the request, the party served shall
answer each requested admission of facts or file objections thereto in
writing. The factual propositions set out in the request are deemed
admitted, if the answering party, willfully and without good cause,
fails to respond to the request for admissions.
(c) Production and inspection of documents. After an appeal has been
filed with the Board, a party may serve upon the other party a written
request to produce and permit the inspection and copying or
photographing of any designated documents, not privileged, regarding any
matter which is relevant to the appeal.
(d) Any discovery under this rule shall be subject to the provisions
of Rule 18(a) with respect to general policy and protective orders.
48 CFR 6302.20 Time and place of hearing (Rule 20).
Hearings will be held at such places determined by the Board to best
serve the interests of the parties and the Board. Hearings will be
scheduled at the discretion of the Board with due consideration to the
regular order of appeals, the requirements for accelerated or expedited
procedures and other pertinent factors. On request of any party and for
good cause, the Board, may, in its discretion, change the date of
hearing.
48 CFR 6302.21 Notice of hearing (Rule 21).
The parties are given at least 15 days notice of the time and place
set for hearing. In scheduling hearings, the Board gives due regard to
the desires of the parties and the requirement for the just and
inexpensive determination of appeals without unnecessary delay. Notices
of hearings shall be promptly acknowledged by the parties.
48 CFR 6302.22 Unexcused absence of a party (Rule 22).
The unexcused absence of a party at the time and place set for
hearing is not an occasion for delay. In the event of such absence, the
presiding Administrative Judge may order the hearing to proceed or, in
his or her discretion, may invoke the provisions of Rule 36.
48 CFR 6302.23 Nature of hearings (Rule 23).
(a) Hearings are as informal as may be reasonable and appropriate
under the circumstances. At the hearing the parties may offer such
relevant evidence as they deem appropriate and as would be admissible
under the Federal Rules of Evidence, subject, however, to the sound
discretion of the presiding Administrative Judge in supervising the
extent and manner of presenting the evidence. In general, admissibility
is governed by relevancy and materiality. Copies of documents,
affidavits, or other evidence not ordinarily admissible under judicial
rules or evidence, may be admitted in the discretion of the presiding
Administrative Judge. The weight to be attached to evidence presented
in any particular form is within the discretion of the Board, taking
into consideration all the circumstances of the particular case.
Stipulations of fact agreed upon by the parties may be used as evidence
at the hearing. The parties may stipulate the testimony that would be
given by a witness if the witness were present. In any case, the Board
may require evidence in addition to that offered by the parties.
(b) Witnesses before the Board are examined orally under oath or
affirmation, unless the facts are stipulated, or the Board otherwise
orders.
48 CFR 6302.24 Subpoenas (Rule 24).
(a) General. Every subpoena shall state the name of the Board and
the title of the appeal and shall command each person to whom it is
directed to attend and give testimony, and, if appropriate, to produce
books, papers, documents, or tangible things, at a time and place
therein specified. Subpoenas (including those calling for the
production of documentary evidence) are signed by an Administrative
Judge or by the Recorder of the Board but otherwise left blank when
furnished to the party requesting the subpoena. The party to whom the
subpoena is issued shall fill it in before service.
(b) Subpoenas for attendance at hearing. At the request of any
party, subpoenas for the attendance of witnesses at a hearing are
issued. A subpoena requiring the attendance of a witness at a hearing
may be served at any place within 100 miles of the place of hearing
specified in the subpoena; but the Board, upon proper application and
for good cause shown by the requesting party, may authorize the service
of a subpoena at any other place.
(c) Subpoenas for production of documentary evidence. A subpoena, in
addition to requiring attendance to testify, may also command any person
to whom it is directed to produce books, papers, documents, or tangible
things designated therein. A subpoena calling for such production shall
show the general relevance and reasonable scope of the evidence sought.
(d) Subpoenas for taking depositions. Subpoenas in aid of
depositions (including those for the production of books, papers,
documents, or tangible things) may be issued by the Recorder of the
Board upon a showing that the parties have agreed to, or the Board has
ordered, the taking of depositions under Rule 18. The service of
subpoenas in aid of depositions shall be limited to the city or county
wherein the witness resides or is employed or transacts business in
person. If a subpoena is desired at other locations, a specific ruling
of the Board is required.
(e) Request to quash or modify. Upon written request by a person
under subpoena or by a party, made within 10 days after service but in
any event not later than the time specified in the subpoena for
compliance, the Board may (1) quash or modify the subpoena if it is
unreasonable and oppressive or for other good cause shown, or (2)
require the person in whose behalf the subpoena was issued to advance
the reasonable costs of producing subpoenaed books and papers. Where
circumstances require, the Board may act upon such a request at any time
after a copy has been served upon the opposing party.
(f) Foreign country. A subpoena directed to a witness in a foreign
country shall issue under the circumstances and in the manner, and be
served as provided in 28 U.S.C. 1781-1784.
(g) Service. A subpoena may be served by a United States Marshal or
a deputy, or by any person not a party who is not less than 18 years of
age. Service of a subpoena upon a person named therein shall be made by
tendering the subpoena to that person with the fees for one day's
attendance and the mileage allowed by law (28 U.S.C. 1821). When the
subpoena is issued on behalf of the United States or an officer or
agency of the United States, fees and mileage need not be tendered.
(h) Fees. The party at whose instance a subpoena is issued shall be
responsible for the payment of witness fees and mileage, as well as the
fees and mileage of the officer who serves the subpoena. The failure to
make payment of such charges on demand may be deemed by the Board as a
sufficient ground for striking the testimony of the witness and the
books, papers, documents, or tangible things produced.
(i) Contumacy or refusal to obey a subpoena. In case of contumacy or
refusal to obey a subpoena by a person who resides, is found, or
transacts business within the jurisdiction of a United States District
Court, the Board will apply to the court through the Attorney General of
the United States for an order requiring the person to appear before the
Board or a member thereof to give testimony or produce evidence or both.
Any failure of any such person to obey the order of the court may be
punished by the court as a contempt thereof.
48 CFR 6302.25 Copies of papers (Rule 25).
When books, records, papers, or documents have been received in
evidence, a true copy or any material or relevant part may be
substituted during or at the conclusion of the hearing.
48 CFR 6302.26 Posthearing briefs (Rule 26).
Posthearing briefs may be submitted upon such terms as may be agreed
upon by the parties and the presiding Administrative Judge at the
conclusion of the hearing.
48 CFR 6302.27 Transcript of proceedings (Rule 27).
Testimony and argument at hearings are reported verbatim, unless the
Board otherwise orders. Transcripts or copies of the proceedings are
supplied to the parties and others at such rates as may be fixed by the
Board.
48 CFR 6302.28 Withdrawal of exhibits (Rule 28).
After a decision has become final, the Board, in its discretion, upon
request and after notice to the other party, may direct or permit the
withdrawal of all or part of original exhibits. The substitution of
true copies of exhibits or photographs of physical objects may be
required by the Board as a condition of withdrawal.
48 CFR 6302.29 Representation of the parties (Rule 29).
(a) The Appellant. An individual appellant may appear before the
Board in person, a corporation by an officer, a partnership or joint
venture by a member, or any of these by an attorney-at-law admitted to
practice before the highest court of the District of Columbia or any
state, commonwealth, or territory of the United States. An attorney
representing an appellant shall file a written notice of appearance with
the Board.
(b) The Government. Government counsel may, in accordance with their
authority, represent the interest of the Government before the Board.
They shall file notices of appearance with the Board.
48 CFR 6302.30 Alternative dispute resolution methods (Rule 30).
(a) To facilitate settlements in cases which might involve lengthy
hearings (in excess of one week) of complex factual disputes and settled
legal principles, the Board has adopted two methods of Alternative
Dispute Resolution (ADR): Settlement Judges and Mini-Trials. These
procedures are designed to supplement existing settlement techniques and
not to replace them. Procedures regarding implementation of these ADR
methods will be distributed to the parties, in appropriate cases, but
may be obtained from the Board upon request.
(b) To employ ADR both parties must initially agree to use an ADR
method. The parties must communicate that agreement in writing to the
presiding judge as early as possible, preferably before commencement of
voluntary discovery. The presiding judge shall promptly decide the
appropriateness of the ADR method requested and so advise the parties.
Where, after application of an ADR method, the parties are unable to
resolve a dispute, the matter shall be restored to the docket of the
presiding judge for hearing.
(53 FR 34106, Sept. 2, 1988)
48 CFR 6302.31 Settlement (Rule 31).
A dispute may be settled at any time before the Board renders its
decision by the appellant filing a written notice withdrawing the appeal
or by written stipulation of the parties settling the dispute.
Proceedings may be suspended while the parties are considering
settlement.
48 CFR 6302.32 Decisions (Rule 32).
Decisions of the Board are rendered in writing. Copies are forwarded
simultaneously to both parties. The rules of the Board and all final
orders and decisions are open for public inspection at the offices of
the Board in Washington, DC. Decisions of the Board are made solely
upon the record, as described in Rule 17.
48 CFR 6302.33 Motion for reconsideration (Rule 33).
A motion for reconsideration shall set forth specifically the grounds
relied upon to sustain the motion and shall be mailed or otherwise
furnished within 30 days from the date of receipt of a copy of the
Board's decision.
48 CFR 6302.34 Dismissal for lack of jurisdiction (Rule 34).
Any motion addressed to the jurisdiction of the Board shall be
promptly filed. A hearing on the motion may be afforded on application
of either party. The Board has the right at any time on its own motion
to raise the issue of its jurisdiction to proceed with a particular case
and do so by an appropriate order, affording the parties an opportunity
to be heard.
48 CFR 6302.35 Dismissal without prejudice (Rule 35).
When the Board is unable to proceed with disposition of an appeal for
reasons not within its control, such appeal is placed in a suspense
status. In any case where such suspension has continued, or it appears
that it may continue for a period in excess of one year, the Board may
dismiss the appeal without prejudice to its restoration to the Board's
docket when the cause of suspension has been eliminated. Unless either
party or the Board acts to reinstate any appeal so dismissed within
three years from the date of dismissal, the dismissal is automatically
converted to a dismissal with prejudice without further action by the
parties or the Board.
48 CFR 6302.36 Dismissal for failure to prosecute or defend (Rule 36).
Whenever a record discloses the failure of any party to file
documents required by these rules, respond to notices or correspondence
from the Board, comply with orders of the Board, or otherwise indicates
a party's intention not to continue the prosecution or defense of an
appeal, the Board may issue an order requiring the offending party to
show cause why the appeal should not be dismissed or granted, as
appropriate.
48 CFR 6302.37 Sanctions (Rule 37).
If any party fails or refuses to obey an order issued by the Board,
the Board may make such order in regard to the failure as it considers
necessary to the just and expeditious conduct of the appeal, including
dismissal with prejudice.
48 CFR 6302.38 Remand from court (Rule 38).
Whenever any court remands a case to the Board for further
proceedings, each of the parties shall, within 20 days of such remand,
submit a report to the Board recommending procedures to be followed so
as to comply with the court's order. The Board considers the reports
and enters special orders governing the handling of the remanded case.
To the extent the court's directive and time limitations permit, such
orders conform to these rules.
48 CFR 6302.38 48 CFR Ch. 99 (10-1-91 Edition)
48 CFR 6302.38 CASB, OFPP, Off. of Mgmt. and Budget
48 CFR 6302.38 CHAPTER 99 -- COST ACCOUNTING STANDARDS BOARD, OFFICE OF FEDERAL PROCUREMENT POLICY, OFFICE OF MANAGEMENT AND BUDGET
48 CFR 6302.38 (Parts 9900 to 9999)
48 CFR 6302.38
48 CFR 6302.38 SUBCHAPTER A -- ADMINISTRATION
Part
Page
9900 (Reserved)
9901 Rules and procedures
48 CFR 6302.38
48 CFR 6302.38 48 CFR Ch. 99 (10-1-91 Edition)
48 CFR 6302.38 CASB, OFPP, Off. of Mgmt. and Budget
48 CFR 6302.38 SUBCHAPTER A -- ADMINISTRATION
48 CFR 6302.38 PART 9900 -- (RESERVED)
48 CFR 6302.38 PART 9901 -- RULES AND PROCEDURES
Sec.
9901.301 Purpose.
9901.302 Authority.
9901.303 Offices.
9901.304 Membership.
9901.305 Requirements for standards and interpretive rulings.
9901.306 Standards applicability.
9901.307 Exemptions and waivers.
9901.308 Meetings.
9901.309 Quorum.
9901.310 Board action.
9901.311 Executive sessions.
9901.312 Minutes.
9901.313 Public hearings.
9901.314 Informal actions.
9901.315 Executive Secretary.
9901.316 Files and records.
9901.317 Amendments.
Authority: Pub. L. 100-679, 102 Stat. 4056, 41 U.S.C. 422.
Source: 56 FR 19304, Apr. 26, 1991, unless otherwise noted.
48 CFR 9901.301 Purpose.
This part is published in compliance with Public Law 100-679, section
5(f)(3), 41 U.S.C. 422(f)(3), and constitutes the rules and procedures
governing actions and the administration of the Cost Accounting
Standards Board.
48 CFR 9901.302 Authority.
(a) The Cost Accounting Standards Board (hereinafter referred to as
the ''Board'') is established by and operates in compliance with Public
Law 100-679.
(b) The Board has the exclusive authority to make, promulgate, amend,
and rescind cost accounting standards and regulations, including
interpretations thereof, designed to achieve uniformity and consistency
in the cost accounting practices governing measurement, assignment, and
allocation of costs to contracts with the United States Government.
(c) All cost accounting standards, waivers, exemptions,
interpretations, modifications, rules, and regulations promulgated under
section 719 of the Defense Production Act of 1950 (50 U.S.C. App. 2168)
shall remain in effect unless and until amended, superseded, or
rescinded by the Board pursuant to Public Law 100-679.
48 CFR 9901.303 Offices.
The Cost Accounting Standards Board's offices are located in the New
Executive Office Building, 725 17th Street, NW., Washington, DC 20503.
The hours of business for the Board are 9 a.m. to 5:30 p.m., local time,
Monday through Friday, excluding holidays observed by the Federal
Government in Washington, DC.
48 CFR 9901.304 Membership.
The Board consists of five members, including the Administrator of
the Office of Federal Procurement Policy (hereinafter referred to as the
''Administrator'') who shall serve as Chairman, and four other members
with experience in Government contract cost accounting who are to be
appointed as follows:
(a) A representative of the Department of Defense appointed by the
Secretary of Defense.
(b) An officer or employee of the General Services Administration
appointed by the Administrator of the General Services Administration or
his/her designee.
(c) A representative of industry appointed from the private sector by
the Administrator.
(d) An individual who is particularly knowledgeable about cost
accounting problems and systems appointed from the private sector by the
Administrator.
(e) The term of office of each of the members of the Board, other
than the Administrator, shall be four years, with the exception of the
initial appointment of members. Of the initial appointments to the
Board, two members shall hold appointment for a term of two years, one
shall hold appointment for a term of three years, and one shall hold
appointment for a term of four years.
(f) The members from the Department of Defense and the General
Services Administration shall not be permitted to continue to serve on
the Board after ceasing to be an officer or employee of their respective
appointing agency. A vacancy on the Board shall be filled in the same
manner in which the original appointment was made. A member may be
reappointed for a subsequent term(s). Any member appointed to fill an
interim vacancy on the Board shall serve for the remainder of the term
for which his or her predecessor was appointed.
(g) In the event of the absence or incapacity of the Administrator or
during a vacancy in the office, the official of the Office of Federal
Procurement Policy, acting as Administrator, shall serve as the Chairman
of the Board.
(h) In the event of the absence of any of the other Board members, a
representative of that Board member may attend the Board meeting, but
shall have no vote, and his or her attendance shall not be counted to
establish a quorum.
48 CFR 9901.305 Requirements for standards and interpretive rulings.
Prior to the promulgation of cost accounting standards and
interpretations thereof, the Board shall:
(a) Take into account, after consultation and discussion with the
Comptroller General, professional accounting organizations, contractors,
government agencies and other interested parties:
(1) The probable costs of implementation, including inflationary
effects, if any, compared to the probable benefits;
(2) The advantages, disadvantages, and improvements anticipated in
the pricing and administration of, and settlement of disputes
concerning, contacts; and
(3) The scope of, and alternatives available to, the action proposed
to be taken.
(b) Prepare and publish a report in the Federal Register on issues
reviewed under paragraph (a) of this section.
(c) Publish an advance notice of proposed rulemaking in the Federal
Register in order to solicit comments on the report prepared pursuant to
paragraph (b) of this section, and provide all parties affected a period
of not less than 60 days after such publication to submit their views
and comments. During this 60-day period, consult with the Comptroller
General and consider any recommendation the Comptroller General may
make.
(d) Publish a notice of such proposed rulemaking in the Federal
Register and provide all parties affected a period of not less than 60
days after such publication to submit their views and comments.
(e) Rules, regulations, cost accounting standards, and modifications
thereof promulgated or amended by the Board, shall have the full force
and effect of law and shall become effective within 120 days after
publication in the Federal Register in final form, unless the Board
determines a longer period is necessary. Implementation dates for
contractors and subcontractors shall be determined by the Board, but in
no event shall such dates be later than the beginning of the second
fiscal year of affected contractors or subcontractors after the standard
becomes effective. Rules, regulations, cost accounting standards, and
modifications thereof promulgated or amended by the Board shall be
accompanied by prefatory comments and by illustrations, if necessary.
(f) The above functions exercised by the Board are excluded from the
operations of sections 551, 553 through 559, and 701 through 706 of
title 5, United States Code.
48 CFR 9901.306 Standards applicability.
Cost Accounting Standards promulgated by the Board shall be mandatory
for use by all executive agencies and by contractors and subcontractors
in estimating, accumulating, and reporting costs in connection with
pricing and administration of, and settlement of disputes concerning,
all negotiated prime contract and subcontract procurements with the
United States Government in excess of $500,000, other than contracts or
subcontracts that have been exempted by the Board's regulations.
48 CFR 9901.307 Exemptions and waivers.
The Board may exempt classes or categories of contractors and
subcontractors from cost accounting standards requirements, and
establish procedures for waiver of the requirements with respect to
individual contracts and subcontracts. The official records of the
Board shall be documented with supporting justification for class or
category exemptions and individual waivers.
48 CFR 9901.308 Meetings.
The Board shall meet at the call of the Chairman. Agenda for Board
meetings shall be proposed by the Chairman, but any Board member may
request any item to be placed on the agenda.
48 CFR 9901.309 Quorum.
Three Board members, at least one of whom is appointed by the
Administrator from the private sector, shall constitute a quorum of the
Board.
48 CFR 9901.310 Board action.
Board action shall be by majority vote of the members present and
voting, except that any vote to publish a proposed standard, rule or
regulation in the Federal Register for comment or any vote to
promulgate, amend or rescind a standard, rule or regulation, or any
interpretation thereof, shall require at least three affirmative votes
for the five Board members. The Chairman may vote on all matters
presented for a vote, not merely to resolve tie votes. The results of
final votes shall be reported in the minutes of the meeting, and the
vote of a Board member may be recorded at his/her request.
48 CFR 9901.311 Executive sessions.
During the course of a Board meeting, any Board Member may request
that for any portion of the meeting, the Board meet in executive
session. The Chairman shall thereupon order such a session.
48 CFR 9901.312 Minutes.
The Executive Secretary of the Board shall be responsible for keeping
accurate minutes of Board meetings and maintaining Board files.
48 CFR 9901.313 Public hearings.
Public hearings to assist the Board in the development and
explanation of cost accounting standards and interpretive rulings may be
held to the extent the Board in its sole discretion deems desirable.
Notice of such hearings shall be given by publication in the Federal
Register.
48 CFR 9901.314 Informal actions.
The Chairman may take actions on behalf of the Board on
administrative issues, as determined by the Chairman, without holding an
official meeting of the members. However, details of the actions so
taken shall be provided to all of the members at the next Board meeting
following such actions. Board members may be polled by telephone on
other issues that must be processed on a timely basis when such matters
cannot be deferred until the next formal meeting of the Board.
48 CFR 9901.315 Executive Secretary.
The Board's staff of professional, technical and supporting personnel
is directed and supervised by the Executive Secretary.
48 CFR 9901.316 Files and records.
The files and records of the Board shall be maintained in accordance
with the Federal Records Creation, Maintenance, and Disposition Manual
of the Executive Office of The President, Office of Administration. As
a minimum, the files and records shall include:
(a) A record of every Board meeting, including the minutes of Board
proceedings and public hearings.
(b) Cost accounting standards promulgated, amended, or rescinded and
interpretations thereof along with the supporting documentation and
applicable research material.
(c) Applicable working papers, memoranda, research material, etc.
related to issues under consideration by the Board and/or previously
considered by the Board.
(d) Substantive regulations and statutes of general applicability and
general policy and interpretations thereof.
(e) Any other file or record deemed important and relevant to the
duties and responsibilities of the Board.
48 CFR 9901.317 Amendments.
This Part 9901, Rules and Procedures, may be amended by the Chairman,
after consultation with the Board.
48 CFR 9901.317 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.
48 CFR 9901.317 Table of CFR Titles and Chapters
48 CFR 9901.317 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)
48 CFR 9901.317 Title 2 -- (Reserved)
48 CFR 9901.317 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
48 CFR 9901.317 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
III General Accounting Office (CASB) (Parts 300 -- 499)
48 CFR 9901.317 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Council (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
48 CFR 9901.317 Title 6 -- (Reserved)
48 CFR 9901.317 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXIV Board of Contract Appeals, Department of Agriculture (Parts 2400
-- 2499)
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)
48 CFR 9901.317 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
48 CFR 9901.317 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
48 CFR 9901.317 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
48 CFR 9901.317 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
48 CFR 9901.317 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200-1299)
XII Federal Mediation and Conciliation Service (Parts 1400-1499)
XIV Equal Employment Opportunity Commission (Parts 1600-1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
48 CFR 9901.317 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200-1299)
XVI Selective Service System (Parts 1600-1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
48 CFR 9901.317 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
48 CFR 9901.317 Title 39 -- Postal Service
I United States Postal Service (Parts 1-999)
III Postal Rate Commission (Parts 3000 -- 3099)
48 CFR 9901.317 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500-1599)
48 CFR 9901.317 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-99)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Family Support Administration,
Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (2200 --
2299)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 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)
48 CFR 9901.317 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Urban Mass Transportation Administration, Department of
Transportation (Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
48 CFR 9901.317 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)
48 CFR 9901.317 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
48 CFR 9901.317 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
Contract Appeals, Board of 7, XXIV
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
Contract Appeals, Board of 7, XXIV
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Reduction in Meeting and Training Allowance Payments 41, 304
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Office of Navajo and Hopi Indian Relocation 25, IV
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
48 CFR 9901.317 48 CFR (10-1-91 Edition)
48 CFR 9901.317 List of CFR Sections Affected
48 CFR 9901.317 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, 1973-1985, published in four separate volumes.
48 CFR 9901.317 1986
48 CFR
51 FR
Page
Chapter 15
1505 Subchapter assignment; editorial note 6004
1506 Subchapter assignment; editorial note 6004
1527 Revision at 49 FR 29222 effective as final rule 25368
1552.227-70 Revision at 49 FR 29228 effective as final rule 25368
1552.227-71 Addition at 49 FR 29229 effective as final rule 25368
1552.227-72 Addition at 49 FR 29230 effective as final rule 25368
1552.227-73 Addition at 49 FR 29231 effective as final rule 25368
1552.227-74 Addition at 49 FR 29231 effective as final rule 25368
1552.227-75 Addition at 49 FR 29231 effective as final rule 25368
Chapter 17
Chapter established 44296
1733 Added 44296
Chapter 18
1801 Heading revised 27848
1801.104-370 Revised 27848
1801.270-2 (a) revised; (c) added 27849
1801.270-4 Revised 27849
1801.271 Added 45770
1801.301 Amended 27849
1801.405 Amended 27849
1801.570 (Subpart 1801.5) Removed 27849
1801.603-1 Removed 27849
1801.603-2 Added 27849
1801.603-3 Added 27850
1801.603-4 Revised 27851
1801.670 Added 27851
1803.101-2 Amended 45770
1803.203 Amended 45770
1803.704 -- 1803.705 (Subpart 1803.7) Added 45770
1804.170 Added 27851
1804.202 Revised 45770
1804.601 Added 27851
1804.671-4 (w) and (ii) amended; (pp), (rr), (ss), and (tt)
introductory text revised 27851
1804.676 Revised 27852
1804.803-71 Added 27853
1804.804-5 Revised 27853
1804.805-70 (a)(2) and (b)(1) amended 27853
1804.7202 Removed 27853
1804.7205 (a) revised 27853
1804.7301 (a) and (c) revised 27853
1805 Subchapter assignment; editorial note 6004
1805.202 Added 27853
1805.207 Revised 45770
1805.303-71 (b)(1) introductory text revised 45771
1806 Subchapter assignment; editorial note 6004
1806.301 Heading revised 27853
1806.302-1-70 (a) amended 27853
1806.302-270 Added 45771
1806.303-271 Added 45771
1806.304 (a) amended; (d) revised 27853
1807.102 Revised 27853, 45771
1807.103 (b)(1)(iii) revised 27854
(b)(1)(i)(A) and (B) and (ii)(A) and (B) amended 45771
1807.170-1 Revised 27854
(a)(1)(iv) removed; (a)(1)(v) redesignated as (a)(1)(iv) 45771
1807.204 (Subpart 1807.2) Added 27854
1807.7102 (a) revised 27855
(c) revised 45771
1807.7105 (a) amended 27855, 45772
1807.7106 Amended 27855
1808.802 Amended 45772
1809.106-7001 Revised 27855
1809.202 Added 27855
1809.203-70 (a) revised 27855
1809.206-1 Added 27855
1812.302 -- 1812.303-70 (Subpart 1812.3) Revised 45772
1813.404 (a) amended 27855
1813.7003 (a) amended 27855
1814.201-3 Removed 27855
1815.406-3 Removed 27855
1815.406-5 (a) and (b) redesignated as (b) and (c); new (a) added;
new (b)(9) revised 27855
1815.407-70 Amended 27855
1815.412 Removed 28575
1815.507 (c) revised 27856
1815.570 Amended 45772
1815.613-70 Revised 27856
1815.613-71 (a)(4) added 27856
(a)(1) introductory text amended 45772
1815.704 Revised 45772
1819.001 Heading added 27856
1819.001-70 Redesignated from 1819.101 and heading revised 27856
1819.101 (Subpart 1819.1) Heading removed 27856
1819.101 Redesignated as 1819.001-70 and heading revised 27856
1822.305 (Subpart 1822.3) Added; interim 4502
Removed 23765
1822.403-1 -- 1822.403-4 (Subpart 1822.4) Added; interim 4502
Removed 23765
1822.1103 (a) revised 45772
1825.109 Removed 27856
1825.109-70 Removed 27856
1825.604 (e) added 27856
1827.373 (a)(1) and (c)(1) revised; (g) added 27856
1827.474 (b)(2) revised 45772
1827.475-10 Removed 45773
1832.470 Removed 27856
1833 Heading revised 27856
1833.211-70 Added 27856
1836.203 (a) amended 27857
1836.602-71 (b) revised 45773
1837.204-70 (d) revised 27857
(d) and (e) revised 45773
1837.204-71 Added 27857
1837.205-71 (b)(1) and (4) revised 27857
1839.7003-2 Amended 27857
1839.7005 (a) revised 45773
1842.202-70 (e) amended 27857
(a)(1) amended; (b) revised 45773
1842.202-71 (b)(2) removed; (b)(3) and (4) redesignated as (b)(2)
and (3) 45773
1842.302 Text added 45773
1845.106-70 (c) revised 27857
1845.302-70 (a) amended 27857
1845.7103 Amended 45774
1845.7205 (f)(1) revised 27857
1846.673 (a) revised 45774
1847.506-70 (a) revised 27857
1847.507 Added 27858
1851.7003 (c) revised 27858
1851.7004 Revised 27858
1851.7005 Revised 27858
1852.214-70 Removed 27858
1852.215-10 Removed 28575
1852.215-73 Removed 27858
1852.222-4 Added; interim 4502
Removed 23765
1852.222-7 Added; interim 4503
Removed 23765
1852.225-70 Removed 27858
1852.227-82 Removed 45774
1852.227-84 Added 27858
1852.227-85 Added 27858
1852.235-70 Revised 45774
1852.251-70 Revised 27858
1853.107 Revised 45774
1853.207 (b) revised 27859
1853.212 Removed 45774
1853.223 Text added 45774
1853.227 Added 45774
1853.251 Revised 27859
Heading revised 45774
Chapter 24
2401.403 Amended 7948
2401.404 Amended 7948
2403.203 Amended 7948
2403.204 Amended 7948
2403.303-70 Amended 7948
2403.601 Amended 7948
2407.102 Amended 7948
2413 Authority citation revised 40333
2413.404 Added (effective date pending) 40333
2414.407-701 (d) correctly designated 7948
2415.506 (b)(2) redesignated as (b)(3); new (b)(2) added 7948
2416.405 Amended 7949
2433.000 Revised (effective date pending) 40333
2433.104 (f) revised (effective date pending) 40333
2433.104-70 Text added (effective date pending) 40333
2433.105 Revised (effective date pending) 40333
Chapter 28
2801.601 Revised 758
2801.602-70 (e) introductory text amended; (e)(1) through (4) added
759
2835.003-70 Revised 759
Chapter 29
2901 Heading revised; interim 40372
2901.603-1 (a)(3) and (d)(8)(i) amended; (d)(4)(iii) and (9),
(f)(2), and (g)(2) and (3) revised; interim 40372
2901.603-74 Added; interim 40373
2902 Authority citation revised 40373
2902.101 Amended; interim 40373
2903.204 (a) corrected; interim 40373
2905 Subchapter assignment; editorial note 6004
2905.202 (Subpart 2905.2) Added; interim 40374
2906 Added; interim 40374
2909.105-1 (b) revised; interim 40374
2913.403 Amended; interim 40374
2913.503-70 Corrected; interim 40374
2914 Heading revised; interim 40374
2914.404 Added; interim 40374
2914.404-1 Heading added; interim 40374
2914.407-8 Revised; interim 40374
2915.105 (Subpart 2915.1) Removed; interim 40374
2915.213 -- 2915.270 (Subpart 2915.2) Removed; interim 40374
2915.304 -- 2915.307 (Subpart 2915.3) Removed; interim 40374
2915.608 Added; interim 40374
2916.306 (Subpart 2916.3) Added; interim 40374
2917.502 Text added; interim 40374
2919.202-1 (a), (b), and (c) amended; interim 40375
2933 Heading revised; interim 40375
2933.003 Redesignated as 2933.203; interim 40375
2933.003-70 Redesignated as 2933.203-70; interim 40375
2933.009 Redesignated as 2933.209; interim 40375
2933.011 Redesignated as 2933.211; interim 40375
2933.012 Redesignated as 2933.212; interim 40375
2933.102 -- 2933.105 (Subpart 2933.1) Added; interim 40375
2933.203 -- 2933.212 (Subpart 2933.2) Heading added; interim 40375
2933.203 Redesignated from 2933.003 and (a) amended; interim 40375
2933.203-70 Redesignated from 2933.003-70; interim 40375
2933.209 Redesignated from 2933.009; interim 40375
2933.211 Redesignated from 2933.011 and amended; interim 40375
2933.212 Redesignated from 2933.012; interim 40375
2943 Authority citation revised 40376
2943.301 (Subpart 2943.3) Added; interim 40376
2949.106 -- 2949.111-70 (Subpart 2949.1) Heading revised; interim
40376
Chapter 44
4405 Subchapter assignment; editorial note 6004
Chapter 52
Chapter established 19843
5242 Added 19843
Revised 46671
5252 Added 19843
Revised 46672
Chapter 53
Chapter established 40978
5350 (Subchapter G) Added 40978
5350 Added 40978
48 CFR 9901.317 1987
48 CFR
52 FR
Page
Chapter 15
1537.205 (b)(3) removed 8073
Chapter 16
Chapter established 16037
1601 -- 1606 (Subchapter A) Heading added 16037
1601 Added 16037
1602 Added 16038
1603 Added 16039
1604 Added 16039
1605 Added 16039
1606 Added 16039
1614 -- 1616 (Subchapter C) Heading added 16039
1614 Added 16039
1615 Added 16040
1616 Added 16041
1622 -- 1624 (Subchapter D) Heading added 16041
1622 Added 16041
1624 Added 16041
1631 -- 1649 (Subchapter E) Heading added 16041
1631 Added 16041
1632 Added 16043
1633 Added 16043
1644 Added 16043
1646 Added 16044
1649 Added 16044
1652 -- 1653 (Subchapter H) Heading added 16044
1652 Added 16044
1653 Added 16048
Chapter 18
1801 Revised 34790
1801.105-1 Revised (OMB numbers) 15414
1801.105-1 Revised 46765
1801.603-2 (d)(2) amended 15414
1801.670 Revised 46765
1802.101 Revised 15414, 34795
1803.303 (a)(5) and (c) revised 34796
1803.7001 Revised 34796
1804.7002 Revised 34796
1804.7100 Amended 15415
1804.7102-2 (a) and (b) amended; (f) removed; (g) and (h)
redesignated as (f) and (g) 15415
1804.7102-4 (a) revised 15415
1804.7102-5 (c) removed; (d) redesignated as (c) 15415
1804.7103-2 Revised 15415
1804.7401 (Subpart 1804.74) Added 34796
1805.202 Revised 46766
1805.205 Revised 34796
1805.207 Revised 34796
1805.302 -- 1805.303-71 (Subpart 1805.3) Revised 34797
1805.403-70 Revised 34798
1807.103 (b)(2) revised 46766
1807.7102 (a) introductory text amended; (d)(1) removed; (d) (2)
and (3) redesignated as (d) (1) and (2) 46766
1808.302 Removed 46766
1808.303 Amended 15415
1808.304-2 (c) amended 15415
1808.304-4 (a) amended 15415
1808.304-571 Amended 15415
1809.106-7204 (a)(2)(ii) amended 46766
1809.206-71 Revised 15415
1810.002-70 Revised 34798
1810.004 (a) revised 34798
1810.004-71 (a) through (g) revised 34798
1810.007 Revised 15415
1810.008 Revised 34798
1810.008-70 Revised 34798
1810.011 Revised 15415
1812.104-70 (c) added 34798
(b) amended 46766
1813.204 -- 1813.205 Added 46766
1813.303 Revised 34799
1813.403-70 (c)(2) amended 34799
1815.407 Revised 15415
1815.407-70 Revised 15415
1815.412 Added 15415
1815.413-2 (c) amended 15416
(e) amended 46766
1815.613-70 Amended 15416
1815.805-5 (a) revised 34799
1815.870-1 -- 1815.870-2 Revised 34799
1815.970 (f) introductory text revised 46766
1815.1003 Amended 15416
1816.203-4 Revised 34799
1816.303 Revised 34800
1816.603-71 Revised 34801
1816.702 Removed 34801
1822.101-1 (c) revised 15416
1822.103-4 Revised 15416
1822.608-5 Revised 34801
1822.804-2 Revised 15416
1823.7002 (d)(1)(vii) revised 34801
1825.402 Text added 15416
1827.404 -- 1827.409 (Subpart 1827.4) Revised 46767
1828.305 (b)(2)(ii) revised 15416
1828.309 (a) designation removed 15416
1830.101 Revised 46769
1830.201-5 (Subpart 1830.2) Added 46769
1830.304 (Subpart 1830.3) Removed 46769
1831 Revised 46769
1831.303 (Subpart 1831.3) Added; interim 13685
1831.703 (Subpart 1831.7) Added; interim 13685
1832.111-70 (d) amended 15416
(e) added 34802
(d) revised 46769
1832.171 Removed 34802
1832.501-170 Removed 46770
1832.705-270 Revised 46770
1835.070 (c) revised 15416
1836.370 Revised 46770
1836.770 Removed 46770
1837.106 Removed 46770
1839.7001 Revised 15416
1842.101 Revised 34802
1842.173 Revised 34802
1842.202-70 (d) revised 34802
1842.7001 (Subpart 1842.70) Added 34802
1845.102-70 (a)(3) revised 34802
1845.106-70 (d) revised 34802
1845.106-71 Added 34802
1845.505-14 Revised 34802
1845.7101 Amended 34803
1846.709-70 Amended 15417
1847.7001 (Subpart 1847.70) Added 34805
1852.000 Revised 15417
1852.204-71 Revised 15417
1852.204-72 Amended 15417
1852.204-73 Added 34805
1852.208-7000 -- 1852.208-7001 Removed 46770
1852.208-7002 Revised 46770
1852.208-7007 Revised 46770
1852.208-7008 Revised 46770
1852.208-7009 Revised 46770
1852.208-7010 Revised 46771
1852.210-70 Revised 15417
1852.212-72 Added 34805
1852.215-72 Amended 15417
1852.215-73 Added 15417
1852.223-3 Removed 46771
1852.223-370 Removed 46771
1852.227-14 Added 46771
1852.227-19 Added 46771
1852.227-74 -- 1852.227-81 Correctly removed 47936
1852.227-83 Correctly removed 47936
1852.227-86 Added 46771
1852.231-70 -- 1852.231-71 Removed 46772
1852.232-71 Revised 46772
1852.232-78 Amended 15417
Revised 46772
1852.232-79 Added 34806
1852.232-80 Added 46772
1852.232-1670 Added 46772
1852.233-1 Revised 15418
1852.235-71 Revised 15418
1852.236-70 Revised 46772
1852.236-71 Revised 46772
1852.236-72 Added 46773
1852.242-70 Added 34806
1852.243-70 Amended 15418
Revised 46773
1852.245-71 Amended 15418
1852.245-73 Revised 34806
1852.247-71 Added 34806
1852.249-72 Amended 15418
1852.250-70 Revised 15418
1852.250-72 Revised 15419
1853.201 Removed 46773
1853.246 (a) amended 46773
1870 Added 15419
1870.103 Appendix I amended 34807
Chapter 24
2401.601-70 Redesignated as 2401.601-71; new 2401.601-70 added 47396
2401.601-71 Redesignated as 2401.601-72; new 2401.601-71
redesignated from 2401.601-70 47396
2401.601-72 Redesignated as 2401.601-73; new 2401.601-72
redesignated from 2401.601-71 47396
2401.601-73 Redesignated as 2401.601-74; new 2401.601-73
redesignated from 2401.601-72 47396
2401.601-74 Redesignated from 2401.601-73 47396
2402.101 Amended 47396
2413.404 Eff. 3-2-87 3663
2433.000 Eff. 3-2-87 3663
2433.104 Eff. 3-2-87 3663
2433.104-70 Eff. 3-2-87 3663
2433.105 Eff. 3-2-87 3663
Chapter 28
2801.31 (c) amendment confirmed 34390
2801.304 (b) amendment confirmed 34390
2801.403 (a) amendment confirmed 34390
2801.601 (c)(1)(i) introductory text amended; (c)(1)(i)(A) revised
32796
(a) introductory text revision confirmed 34390
2801.602-70 Revision confirmed; (f) amended 34390
2801.603 Added 32797
2804.601 (a) and (b) amendment confirmed 34390
2804.803-70 (b)(1) table, (2) table, (3) table and (4) table revised
4320
(b) (1) and (2) and (c) revision and (b)(3) addition confirmed 34390
2804.7001 -- 2804.7002 (Subpart 2804.70) Revision confirmed 34390
2806 -- 2812 (Subchapter B) Heading revision confirmed 34390
2806 Addition confirmed 34390
2806.501 (a) revised 42295
2806.502 (b)(1) amended 34390
2807.102 (b) amendment confirmed 34390
2807.7000 -- 2807.7001 (Subpart 2807.70) Added 4320
2808.802-70 Amendment confirmed 34390
2808.1102-70 Amended 34390
2809.400 (b) amended 34390
2809.470 (a)(4) amended 34390
2810.007 Amendment confirmed 34390
2812.303 (Subpart 2812.3) Added 4320
2814 Heading revision confirmed 34390
2814.000 Amendment confirmed 34390
2815.104 -- 2815.105-70 (Subpart 2815.1) Removal confirmed 34390
2815.307 (Subpart 2815.3) Removal confirmed 34390
2815.803-70 Amendment confirmed 34390
2827 Removed 34390
2830.201-270 Amendment confirmed 34390
2831.101-70 (b) amendment confirmed 34390
2834 Addition confirmed 34390
2834.002-70 (b)(1) and (e) amended; (f) added 34390
2835.003-70 (a) amendment confirmed 34390
2852.227-70 -- 2852.227-74 Removed 34390
Chapter 53
5315 Added 12414
5316 Added 6332
Chapter 63
Chapter 63 Chapter established 48630
6301 Added (regulations transferred from 41 Part 12-60) 48630
6302 Added (regulations transferred from 41 Part 12-60) 48631
48 CFR 9901.317 1988
48 CFR
53 FR
Page
Chapter 15
1505.202 Revised 31871
1506.302-5 Added 31872
1515.413 Added 38293
1515.604-70 (a) amended 38293
Chapter 16
1602.170-9 Redesignated as 1602.170-10; new 1602.170-9 added 51783
1602.170-10 Redesignated as 1602.170-11; new 1602.170-10
redesignated from 1602.170-9 51783
1602.170-11 Redesignated from 1602.170-10 51783
1632.111 Removed 51784
1632.170 -- 1632.172 Added 51784
1652.232-70 Redesignated as 1652.232-72; new 1652.232-70 added 51784
1652.232-71 Added 51784
1652.232-72 Redesignated from 1652.232-70 51784
Chapter 18
Chapter revised 28186
1801.301 -- 1801.303-70 (Subpart 1801.3) Revised 26932
1801.401 Revised 26933
1801.602-3 Added 13056
Revised 38414
1804.103 Revised 51340
1804.170 (b) amended 38414
1804.402 Revised 38414
1804.404-70 Added 51340
1804.671-8 Removed 26933
1804.676 Amended 51340
1804.7102 Amended 38414
1804.7102-4 (a) amended 38414
1804.7103-2 Amended 38414
1804.7401 (Subpart 1804.74) Removed 51340
1805.303-71 (b)(1) amended 26933
(b) (1) and (2) amended 38415
1807.101 -- 1807.170-3 (Subpart 1807.1) Revised 26933
1807.103 (a)(2)(vii) revised 38415
1807.7001 (Subpart 1807.70) Added 38415
(Subpart 1807.70) Heading revised 51340
1807.7100 -- 1807.7107 (Subpart 1807.71) Revised 26935
1807.7102 (c) revised 13056
1807.7105 (a) amended 13056
1807.7106 Introductory text and Table 7-1 heading revised 13056
1808.002-76 Added 51340
1808.303 Revised 26936
1808.304-5 Revised 26937
1808.304-570 Revised 26937
1808.304-572 (a)(2)(ii) and (4) amended 51340
1808.305 Amended 51340
1808.309 (a) through (i) amended 51340
1808.705-4 Removed 26937
1808.711 Removed 26937
1808.870 Added 51340
1809.670 (Subpart 1809.6) Added 51341
1810.011 Revised 51341
1810.011-70 Added 51341
1812.104-70 (d) and (e) added 51341
1813.205 Revised 51341
1814.201-6 Added 51341
1814.201-670 Added 51341
1814.404-170 (b)(2) revised 38415
1815.106 Removed 51341
1815.106-2 Removed 51341
1815.406-2 Added 51341
1815.406-4 Revised 51341
1815.406-5 Revised 51342
1815.407 (a) amended 32902
1815.407-70 (a) revised 13056
(c) through (i) added 51342
1815.412 Introductory text amended 32902
1815.413-2 (c)(2) amended 32902
(b) revised 52713
1815.502 -- 1815.570 (Subpart 1815.5) Revised 13056
1815.505-70 Amended 32902
1815.506 (b) added 32902
1815.613-70 Amended 32902
1815.613-71 (a)(1) introductory text revised 13057
Heading amended; (b) (1) and (2) revised 26937
(a) revised 38415
1815.708 Added 51342
1815.708-70 Added 51342
1815.1003 (Subpart 1815.10) Heading revised 51342
1816.202 Added 51342
1816.202-70 Added 51342
1816.203-4 (a) introductory text, (1), and (2) and (g) amended 51342
1816.207 Added 51342
1816.207-70 Added 51342
1816.307 Revised 51343
1816-307-70 Revised 51343
1816.404 Added 26937
1816.404-2 Added 26937
1816.405 Revised 51343
1816.405-70 Added 51343
1816.603-4 Added 51343
1816.603-470 Added 51343
1817.200 -- 1817.208 (Subpart 1817.2) Revised 26937
1817.204 (a) amended 51343
1817.504 (a) amended 32903
1819.001 Revised 13058
1819.170 (Subpart 1819.1) Added 51343
1819.202-4 Added 13058
1819.202-5 Removed 13058
1819.402 Removed 13058
1819.470 Removed 13058
1819.502-2 Removed 13058
1819.602-70 Revised 13058
1819.708 Added 51343
1819.708-70 Added 51343
1819.809-1 Revised 13058
Revised 51344
1819.810 Removed 13058
1822.302 (Subpart 1822.3) Added 13058
1822.403-4 -- 1822.406-13 (Subpart 1822.4) Added 13058
1822.608 Removed 26938
1823.303-70 Revised 51344
1823.7004 (e) and (f) added 51344
1824 Revised 26938
1824.102 (Subpart 1824.1) Added 38415
1824.202 (Subpart 1824.2) Added 38415
1825.101 -- 1825.105 (Subpart 1825.1) Revised 38415
1825.202 -- 1825.205-70 (Subpart 1825.2) Revised 38417
1825.402 Revised 13059
1825.405 Revised 51344
1825.407 Added 51344
1825.407-70 Added 51344
1825.605 Added 51344
1825.605-70 Added 51344
1825.703 (a) and (b) designation removed 51344
1825.904 Added 51344
1825.903-70 Redesignated as 1825.904-70 51344
1825.904-70 Redesignated from 1825.903-70 51344
1827.303 Added 51344
1827.371 Revised 13059
1827.373 Heading, (a) (1) through (3) revised; (a)(4) added 51344
1827.374-1 (f) removed; (g) and (h) redesignated as (f) and (g);
new (g) revised 13059
(d) amended 51345
1827.374-4 (a)(2) amended 51345
1827.404 (e)(1) amended 51345
1827.405 (a) (1) and (2) amended 51345
1827.409 (e), (f), (g) and (h) revised 51345
1828.106-6 Added 26938
1828.001 Added; interim 45096
1828.101 Added 51345
1828.101-70 Added 51345
1828.305 (b)(2) and (ii) revised 51345
1828.309 Amended 51345
1828.370 (a) revised; (c) added 51345
1828.372 Added 38418
1828.373 Added; interim 45096
1829.170 Removed 13059
1829.203 (Subpart 1829.2) Added 13059
Revised 38418
1830.7000 -- 1830.7002-6 (Subpart 1830.70) Added 38418
1831.303 (Subpart 1831.3) Removed 47956
1831.703 (Subpart 1831.7) Removed 47956
1832.111-70 Revised 13059
1832.172 Removed 26938
1832.402 Revised 26938
1832.502-4 Added 38421
1832.502-470 Added 38421
1832.704 (b) revised 38421
1832.705-270 (c) and (d) added 38421
1832.806 (Subpart 1832.8) Removed 38421
1832.908 (Subpart 1832.9) Added 13060
1833.103 Revised 51346
1833.104 Revised 51346
1835.016 Added 32903
1835.016-70 Added 32903
1835.071 Amended 38421
1836.370 (b) amended 13060
1836.570 -- 1836.570-2 (Subpart 1836-5) Added 51346
1837.110 Heading added 51346
1837.110-70 Added 51346
1839.000 Removed 26938
1842.202 (a)(2)(iv) removed; (a)(2) (v) through (viii) redesignated
as (a)(2) (iv) through (vii)38421
1842.202-70 (a) amended; (d) removed; (e) and (f) redesignated as
(d) and (e) 38421
1842.202-72 Added 38421
1842.270 Added 13060
(b), (c), and (d) revised 26938
1842.803 (c)(5) amended 51347
1842.7001 -- 1842.7003 (Subpart 1842.70) Revised 51347
1842.7001 (a) revised 26938
1845.106-70 Revised 38421, 38422
1845.302-2 Revised 38423
1845.302-270 Removed 38423
1845.406 Added 38423
1845.502-70 Removed; new 1845.502-70 redesignated from 1845.502-71
38424
1845.502-71 Redesignated as 1845.502-70; new 1845.502-71
redesignated from 1845.502-72 38424
1845.502-72 Redesignated as 1845.502-71 38424
1845.604 Revised 38424
1845.607 Revised 38424
1845.607-70 Added 38424
1845.607-71 Removed 38424
1845.607-72 Removed 38424
1845.7101 Amended 26939
1846.270 (Subpart 1846.2) Added 38424
1846.470 (Subpart 1846.4) Added 38424
1846.674 Added 38424
1847.305-70 Revised 38424
1848 Revised 51347
1849.101-70 (a) introductory text revised 13060
1849.505 -- 1849.505-70 (Subpart 1845.5) Revised 38425
1849.603 -- 1849.603-70 (Subpart 1849.6) Revised 38425
1851.7001 -- 1851.7005 (Subpart 1851.70) Removed 13060
1852.102 Removed 51348
1852.102-2 Removed 51348
1852.103 Revised 26939
1852.103-70 (a) revised 13060
Revised 51348
1852.203-70 Revised 51348
1852.204-70 Revised 51348
1852.204-71 Revised 51348
1852.204-72 Revised 51349
1852.204-73 Removed 51349
1852.204-74 Added 51349
1852.204-75 Added 51349
1852.207-70 Added 38426
1852.208-70 Added 51349
1852.208-71 Added 51349
1852.208-72 Added 51349
1852.208-73 Added 51349
1852.208-74 -- 1852.208-77 Added 51350
1852.208-78 -- 1852.208-80 Added 51351
1852.208-7002 -- 1852.208-7012 Removed 51351
1852.208-81 Added 51351
1852.208-83 Added 51352
1852.209-70 Revised 51352
1852.209-71 Revised 51352
1852.209-72 Added 51352
1852.210-70 Revised 26939
Revised 51352
1852.210-71 Added 51352
1852.210-72 Added 51353
1852.210-75 Added 51353
1852.212-13 Removed 51353
1852.212-70 Revised 51353
1852.212-72 Revised 51353
1852.212-73 Added 51353
1852.212-74 Added 51354
1852.214-70 Added 51354
1852.214-71 Added 51354
1852.214-72 Added 51354
1852.215-2 Removed 51354
1852.215-12 Removed 51354
1852.215-70 Revised 51354
1852.215-71 Revised 51354
1852.215-73 Revised 51354
1852.215-74 Added 51354
1852.215-75 Added 51355
1852.215-76 Added 51355
1852.215-77 Added 51355
1852.215-78 Added 51355
1852.215-79 Added 51355
1852.215-80 Added 51355
1852.216-7 Amended 13060
Removed 51355
1852.216-13 Removed 51355
1852.216-26 Removed 13060
1852.216-70 Added 51355
1852.216-71 Added 51356
1852.216-72 Added 51357
1852.216-73 Added 51357
1852.216-74 Added 51357
1852.216-75 Added 51357
1852.216-76 Added 51357
1852.216-7001 -- 1852.216-7007 Removed 51357
1852.216-78 -- 1852.216-80 Added 51357
1852.216-81 -- 1852.216-87 Added 51358
1852.216-770 Removed 13060
1852.217-70 Revised 51359
1852.217-71 Removed 26939
1852.217-72 Removed 26939
1852.219-70 Added 13060
1852.219-71 Added 13061
1852.219-70 -- 1852.219-71 Removed 51359
1852.219-72 -- 1852.219-73 Added 51359
1852.222-70 Revised 13061
1852.222-71 Revised 13061
Revised 51359
1852.223-70 Revised 51359
1852.223-71 Revised 51360
1852.223-72 Revised 51360
1852.223-73 Revised 51360
1852.225-71 Revised 51360
1852.225-72 Revised 51360
1852.225-73 Revised 51360
1852.227-11 Removed 51360
1852.227-14 Removed 51360
1852.227-19 Removed 51360
1852.227-70 Revised 13061
1852.228-70 Revised 51360
1852.228-71 Revised 51362
1852.228-72 Revised 51363
1852.228-73 -- 1852.228-75 Added 38426
1852.228-73 Revised 51364
1852.228-74 Revised 51364
1852.228-75 Revised 51364
1852.228-76 Added; interim 45096
1852.228-77 Added 51364
1852.228-470 Removed 51360
1852.232-1 Removed 13063
1852.232-2 Removed 13063
1852.232-4 Removed 13063
1852.232-7 Removed 13063
1852.232-10 Removed 13063
1852.232-16 Removed 13063
1852.232-22 Added 38427
1852.232-25 Added 13063
1852.232-71 Removed 13063
1852.232-73 Removed 13063
1852.232-74 Removed 13063
1852.232-77 Introductory text revised 13063
1852.232-78 Removed 13063
1852.232-79 Introductory text revised 13063
1852.232-81 Added 38427
1852.232-82 Added 38427
1852.232-1670 Removed 13063
1852.235-72 Introductory text revised 13063
Introductory text amended 26939
1852.236-72 Introductory text revised 13063
1852.236-73 Added 51364
1852.236-74 Added 51365
1852.237-70 Added 51365
1852.242-70 Revised 26939
1852.242-71 Added 51365
1852.242-72 Added 51365
1852.245-70 Revised 13063
1852-245.71 Introductory text revised 13064
1852.245-72 Introductory text revised 13064
1852.245-75 -- 1852.245-78 Added 38427
1852.245-79 Added 38428
1852.245-80 Added 38428
1852.246-70 -- 1852.246-72 Added 38428
1852.246-73 Added 38429
1852.247-72 Added 38429
1852.247-73 Added 38429
1852.250-70 Amended 38429
Introductory text amended 51365
1852.250-71 Amended 38429
Introductory text amended 51365
1852.251-70 Removed 13064
1853.242-70 (f) added 13064
1853.251 Removed 13064
1870.103 Appendix I amended 13064, 26940
1870.201 -- 1870.203 (Subpart 1870.2) Added 32905
1870.301 -- 1870.303 (Subpart 1870.3) Added 38429
Chapter 24
2401 Authority citation revised 46533
2401.403 Amended (effective date pending) 46533
2401.601-70 Eff. 3-4-88 7187
2401.601-71 Eff. 3-4-88 7187
2401.601-72 Eff. 3-4-88 7187
2401.601-73 Eff. 3-4-88 7187
2401.602-3 Added (effective date pending) 46533
2401.602-70 Removed (effective date pending) 46533
2402.101 Eff. 3-4-88 7187
Amended (effective date pending) 46534
2406.304-70 (a)(1) amended (effective date pending) 46534
2409 Authority citation revised 46534
2409.504 (a)(5) revised; (b) removed; (c), (d) and (e) redesignated
as (b), (c) and (d); new (b)(1) amended; new (d) revised (effective
date pending) 46534
2409.508 -- 2409.508-2 Added (effective date pending) 46534
2412 Added (effective date pending) 46534
2413 Authority citation revised 46534
2413.107 (Subpart 2413.1) Added (effective date pending) 46535
2413.505 -- 2413.505-2 (Subpart 2413.5) Added (effective date
pending) 46535
2414.406-3 (e)(3) amended (effective date pending) 46535
2415.407 Added (effective date pending) 46535
2415.411 Added (effective date pending) 46535
2415.411-70 Added (effective date pending) 46535
2416.405 Revised (effective date pending) 46535
2416.504 Added (effective date pending) 46535
2417 Added (effective date pending) 46535
2419.503 (a) heading revised; (a) text amended (effective date
pending) 46535
2422 Added (effective date pending) 46535
2424 Authority citation revised 46536
2424.202-70 Added (effective date pending) 46536
2426 Added (effective date pending) 46536
2427 Added (effective date pending) 46536
2432 Revised (effective date pending) 46536
2434 Added (effective date pending) 46537
2437.101 -- 2437.110 (Subpart 2437.1) Heading and sections added
(effective date pending) 46537
2442 Added (effective date pending) 46537
2446 Added (effective date pending) 46537
2451 Added (effective date pending) 46538
2452 Added (effective date pending) 46538
2453 Added (effective date pending) 46543
2470 (Subchapter U) Removed (effective date pending) 46544
Chapter 28
2801.301 (c) amended 49665
2801.602-3 Added 49665
2801.602-70 (a), (b), (c), and (d) revised 49665
2801.603 (b)(2) amended 49665
2804.70 Removed 49665
2804.7001 (a) and (b) removed 12421
(a) and (b) correctly removed 12866
2804.7002 Revised 12421
2806.501 (b) amended 49666
2832.7000 -- 2832.7001 (Subpart 2832.70) Heading amended 12421
2832.7000 Revised 12421
2832.7001 Revised 12421
2832.7002 Removed 12421
2845 (Subchapter G) Added 49666
2845 Added 49666
2852.105-70 (b) amended 49666
2852.232-70 -- 2852.232-78 Removed 12422
2852.232-79 Amended 49666
Chapter 29
2901 Regulations at 51 FR 40372 confirmed 3839
2902 Regulations at 51 FR 40373 confirmed 3839
2902.101 Amended 3839
2903 Regulations at 51 FR 40373 confirmed 3839
2905 Regulations at 51 FR 40374 confirmed 3839
2906 Regulations at 51 FR 40374 confirmed 3839
2909 Regulations at 51 FR 40374 confirmed 3839
2913 Regulations at 51 FR 40374 confirmed 3839
2914 Regulations at 51 FR 40374 confirmed 3839
2915 Regulations at 51 FR 40374 confirmed 3839
2916 Regulations at 51 FR 40374 confirmed 3839
2917 Regulations at 51 FR 40374 confirmed 3839
2919 Regulations at 51 FR 40375 confirmed 3839
2919.202-1 (a) amended 3839
2933 Regulations at 51 FR 40375 confirmed 3839
2943 Regulations at 51 FR 40376 confirmed 3839
2943.301 Amended 3839
2949 Regulations at 51 FR 40376 confirmed 3839
Chapter 34
Chapter 34 Chapter established 19118
3401 Added 19119
3402 Added 19119
3403 Added 19120
3404 Added 19120
3405 Added 19120
3408 Added 19120
3409 Added 19120
3413 Added 19121
3414 Added 19121
3415 Added 19121
3416 Added 19121
3417 Added 19122
3419 Added 19122
3424 Added 19123
3425 Added 19123
3427 Added 19123
3428 Added 19123
3432 Added 19123
3433 Added 19124
3437 Added 19124
3442 Added 19124
3443 Added 19125
3445 Added 19125
3447 Added 19125
3452 Added 19125
Chapter 52
5215 Added 16280
5252.215-9000 Added 16282
Chapter 57
Chapter 57 Chapter established 5578
5706 Added 5578
Chapter 63
6302.18 (b) revised 34106
6302.30 Added 34106
48 CFR 9901.317 1989
48 CFR
54 FR
Page
Chapter 15
1515.407 (a)(3) revised; (b) removed; (c) redesignated as (b);
eff. 10-15-89 36980
1529 Added 49998
1532.908 (Subpart 1532.9) Added 9215
Amended; interim 40876
1532.70 -- 1532.7003 (Subpart 1532.70) Removed 9215
1552.215-75 Removed; eff. 10-15-89 36980
1552.215-76 Introductory text and (q) revised; eff. 10-15-89 36980
1552.229-70 Added 49998
1552.232-70 Revised 9215
Amended; interim 40876
1552.232-71 -- 1552.232-72 Removed 9216
Chapter 18
1801.270 Revised 53622
1801.270-4 Revised 10796
1801.271 Revised 53622
1801.272 Added 53622
1801.272-1 Added 53622
1801.272-2 Added 53622
1801.272-3 Added 53622
1801.302 Added 53622
1801.302-70 (a) and (b) amended 53622
1803.104 Added 39360
1803.104-2 Added 53623
1803.104-4 Added 39360
1803.104-5 Added 39360
1803.104-6 Added 39360
1803.104-7 Added 39361
1803.104-9 Added 39361
1803.104-11 Added 39361
1803.104-12 Added 39361
1804.103 Added 39361
1804.404-70 Amended 39361
1804.601 Amended 53623
1804.602 Added 39361
1804.603 Added 39361
1804.671 Amended 53623
1804.671-1 (a)(1)(v) added 39362
Revised 53623
1804.671-4 Revised 39362
Revised 53623
1804.671-5 Revised 39368
Removed 53630
1804.671-6 (d) revised 39369
1804.7102-7 (b)(2) revised 10796
Revised 39369
1805.207 Revised 39369
1805.303-71 (b)(1) introductory text revised 10796
1807.103 (b)(1) introductory text revised; (b)(2) removed; (b)(3)
redesignated as (b)(2) 10796
1807.170-1 Revised 10796
1807.7200 -- 1807.7206 (Subpart 1807.72) Added 39370
1808.304-573 Added 53630
1809.106-70 (f)(2)(ii) amended 39370
1809.404 Revised 39370
1809.405 Revised 39370
1809.405-1 Revised 39370
1809.405-2 Revised 39371
1813.7101 -- 1813.7107 (Subpart 1813.71) Added 53630
1814.201-2 Revised 39371
1814.202 Added 53630
1814.202-7 Added 53630
1815.402 Added 53631
1815.413-2 (e) removed 39371
1815.613-70 Amended 10798
1815.613-71 (a)(4) revised 10798
1815.805-5 (e) amended 53631
1815.806 Removed 39371
1815.904 Removed 53631
1815.1003 -- 1815.1003-4 (Subpart 1815.10) Revised 10798
1816.203-4 (a) removed; (b) through (g) redesignated as (a) through
(f); new (a) amended 10798
1816-307-70 (c) amended 10798
1817.200 Revised 53631
1817.204 (a) revised 53631
1819.170 (Subpart 1819.1) Heading Revised 39371
1819.501 Revised 53631
1819.505 (a) amended 53631
1819.1005 (Subpart 1819.10) Added 39371
1822.101-72 Added 39371
1822.608-4 Added 10799
1822.1000 -- 1822.1051 (Subpart 1822.10) Revised 10799
Removed 21222
1822.1001 -- 1822.1008 (Subpart 1822.10) Revised 39371
1823.7102 Revised 10806
1824.103 Added 39372
1825.1002 -- 1825.1004 (Subpart 1825.10) Added 39372
1825.7100 -- 1825.7105 (Subpart 1825.71) Added; interim 18113
1825.7104 (b) (2) and (3) corrected 19576
1827.372 (a)(1) revised; (h) and (i) redesignated as (i) and (j);
new (h) added 39372
1827.373 (a) revised 39372
1827.374-1 (a) through (g) redesignated as (b) through (h); new (a)
added 39373
1827.374-2 Revised 39373
1827.407 Added 39373
1827.670 -- 1827.670-2 (Subpart 1827.6) Added 39373
1828.001 Added 7037
1828.373 Added 7037
1832.702-70 (d) added 53631
1832.705-2 Revised 10806
1832.705-270 (d) removed 10806
1832.903 -- 1832.970 (Subpart 1832.9) Revised 53631
1832.908 Revised 10806, 39373
1834.005-1 Added 10807
1835.070 Heading revised 10807
1836.602-70 (b) revised 39373
1836.602-71 Revised 39374
1836.609 Removed 10807
1836.609-70 Removed 10807
1837.101 Added 5625, 10807
1837.110 Text added 5625
Revised 10807
1837.170 Added 5625, 10807
1837.200 -- 1837.205-73 (Subpart 1837.2) Heading revised 39374
1842.202-71 Revised 10807
1842.7003 (b) revised; (c) added 39374
1843.205 -- 1843.270 (Subpart 1843.2) Revised 10807
1845.102 (c) added 39374
1845.102-70 Revised 39374
1845.106 Revised 10808
1845.106-70 Heading revised 10808
1845.302-72 Added 10808
1846.470 Amended 10808
1847.305-70 (a) revised 10808
1848.102 -- 1848.104-2 (Subpart 1848.1) Revised 10808
1848.201 -- 1848.201-70 (Subpart 1848.2) Revised 10809
1850.402 Revised 39374
1850.403-2 Revised 39375
1850.403-70 Revised 39375
1850.403-370 Revised 39375
1852.204-75 Revised 39375
1852.214-71 Amended 10809
1852.216-70 -- 1852.216-71 Removed 10809
1852.216-72 Amended 10809
1852.216-82 (a) revised 10809
1852.222-40 Added 10809
Removed 21222
1852.222-41 Added 10809
Removed 21222
1852.222-43 Added 10812
Removed 21222
1852.225-74 Added; interim 18114
1852.225-75 Added; interim 18114
1852.227-70 Amended 53631
1852.227-73 Removed 39375
1852.227-84 Revised 53631
1852.227-87 Added 39375
1852.228-76 Added 7037
1852.232-22 Removed 10813
1852.232-25 Removed 10813
1852.232-75 Revised 10813
1852.232-77 Revised 10813
1852.232-80 Revised 10813
1852.232-81 Revised 10813
1852.232-82 Revised 10814
1852.233-1 Removed 10814
1852.235-70 -- 1852.235-72 Revised 10814
1852.236-70 -- 1852.236-72 Revised 10814
1852.237-70 Introductory text amended 39376
1852.242-70 Revised 10814
1852.242-72 Revised 39376
1852.243-1 -- 1852.243-3 Removed 10815
1852.243-70 Revised 10815
1852.245-70 Revised 10815
1852.245-71 -- 1852.245-73 Revised 10816
1852.245-74 Added 10819
1852.245-75 Revised 10817
1852.245-77 -- 1852.245-79 Revised 10817
1852.245-80 Revised 10818
1852.246-70 Revised 10818
1852.247-70 -- 1852.247-71 Revised 10818
1852.247-70 Amended 39376
1852.247-73 Revised 10819
1852.249-72 Revised 10819
1852.250-70 Amended 39376
1852.250-71 Removed 39376
1852.250-72 Amended 53632
1852.252-70 Revised 10819
1853.204-70 (b) revised 39376
Revised 53632
1853.223 Removed 10819
1870.401 -- 1870.403 (Subpart 1870.4) Added 53632
Chapter 24
2401.403 Amendment; eff. 3-3-89 8336
2401.602-3 Addition; eff. 3-3-89 8336
2401.602-70 Removal; eff. 3-3-89 8336
2402.101 Amendment; eff. 3-3-89 8336
2406.304-70 (a)(1) amendment; eff. 3-3-89 8336
2409.504 (a)(5) revision, (b) removal, (c) through (e) redesignation
as (b) through (d); new (b)(1) amendment; new (d) revision; eff.
3-3-89 8336
2409.508 -- 2409.508-2 Additions; eff. 3-3-89 8336
2412 Addition; eff. 3-3-89 8336
2413.107 (Subpart 2413.1) Addition; eff. 3-3-89 8336
2413.505 -- 2413.505-2 (Subpart 2413.5) Additions; eff. 3-3-89 8336
2414.406-3 (e)(3) amendment; eff. 3-3-89 8336
2415.407 Addition; eff. 3-3-89 8336
2415.411 Addition; eff. 3-3-89 8336
2415.411-70 Addition; eff. 3-3-89 8336
2416.405 Revision; eff. 3-3-89 8336
2416.504 Addition; eff. 3-3-89 8336
2417 Addition; eff. 3-3-89 8336
2419.503 (a) heading revision, (a) text amendment; eff. 3-3-89 8336
2422 Addition; eff. 3-3-89 8336
2424.202-70 Addition; eff. 3-3-89 8336
2426 Addition; eff. 3-3-89 8336
2427 Addition; eff. 3-3-89 8336
2432 Revision; eff. 3-3-89 8336
2434 Addition; eff. 3-3-89 8336
2437.101 -- 2437.110 (Subpart 2437.1) Addition; eff. 3-3-89 8336
2442 Addition; eff. 3-3-89 8336
2446 Addition; eff. 3-3-89 8336
2451 Addition; eff. 3-3-89 8336
2452 Addition; eff. 3-3-89 8336
2453 Addition; eff. 3-3-89 8336
2470 (Subchapter U) Removal; eff. 3-3-89 8336
Chapter 28
2801.404 Revised 40877
2801.470 Added 40877
2813.570 Added 40878
2819.506 (Subpart 2819.5) Added 40878
Chapter 29
2919.202-1 Removed 30389
Chapter 51
Chapter established 15410
5108 Added 38682
5108.070 Added 38682
5119 Added 15410
5145 Added 39538
5152 Added 38683
5152.208-9001 Added 38683
5152.245-9000 Added 39539
5152.245-9001 Added 39539
48 CFR 9901.317 1990
48 CFR
55 FR
Page
Chapter 15
1501.602-3 Added 18340
1501.670 Removed 18341
1501.670-6 (c) nomenclature change 24579
1502.100 Amended 24579
1503.301 Nomenclature change 24579
1503.408-1 Nomenclature change 24579
1503.409 Nomenclature change 24579
1503.502 Nomenclature change 24579
1506.202 Nomenclature change 24579
1510.007 Nomenclature change 24579
1510.011-73 Revised 39622
1510.011-74 -- 1510.011-77 Redesignated as 1510.011-75 --
1510.011-78; new 1510.011-74 added 39622
1513.404 Revised 48623
1514.201-7 Added 24579
1514.401-1 Revised 24579
1515.604 (a) amended 24579
1515.609 (a) amended; (b) revised 24579
1515.612 (a)(1) introductory text, (i), (ii), and (iii), and (2)
introductory text revised 24579
1515.804-3 Nomenclature change 24579
1515.902 (c) nomenclature change 24579
1515.1003 Amended 24579
1516.404-276 (a) nomenclature change 24579
1516.404-277 Nomenclature change 24579
1516.603 -- 1516.603-3 (Subpart 1516.6) Added 24580
1517.202 Nomenclature change 24579
1519.201-2 (c)(3) amended 24579
1522.608-4 Nomenclature change 24579
1522.803 Nomenclature change 24579
1522.1306 Nomenclature change 24579
1522.1403 Nomenclature change 24579
1527.404 (Subpart 1527.4) Subpart and section added 48623
1527.7000 -- 1527.7005 (Subpart 1527.70) Removed 48624
1530.304 Nomenclature change 24579
1531.101 Revised 24580
1532.102 Nomenclature change 24579
1532.908 Revised 38807
1533.209 Nomenclature change 24579
1536.209 Nomenclature change 24579
Revised 49283
1536.602-4 Revised 24580
1542.1202 (b) amended 24580
1545.403 Nomenclature change 24579
1552.210-72 Amended 39622
1552.210-73 Revised 39622
1552.210-74 -- 1552.210-77 Redesignated as 1552.210-75 --
1552.210-78; new 1552.210-74 added 39622
1552.215-76 Amended (OMB numbers) 13535
1552.227-70 Removed 48624
1552.227-71 Removed 48624
1552.227-72 Removed 48624
1552.227-73 Removed 48624
1552.227-74 Removed 48624
1552.227-75 Removed 48624
1552.232-70 Amended 38807, 39622
Chapter 16
1602.170-2 Revised 27414
1602.170-6 Revised 27414
1602.170-11 Redesignated as 1602.170-12; new 1602.170-11 added 27414
1602.170-12 Redesignated from 1602.170-11 27414
1615.802 (b) revised 27414
1615.804-70 Revised 27414
1615.804-71 Revised 27414
1615.804-72 Added 27415
1615.805-70 (c) redesignated as (d); new (c) added 27415
1616.102 -- 1616.105 (Subpart 1616.1) Nomenclature change 27415
1616.270 -- 1616.271 (Subpart 1616.2) Nomenclature change 27415
1622.103-70 Revised 27415
1632.806-70 (Subpart 1632.8) Added 27415
1652.203-70 Revised 27415
1652.204-70 Amended 27415
1652.204-71 Revised 27415
1652.215-70 Revised 27415
1652.215-71 Revised 27416
1652.216-70 Amended 27416
1652.216-71 Revised 27416
1652.222-70 Amended 27417
1652.224-70 Amended 27417
1652.232-72 Amended 27418
1652.232-73 Added 27418
1652.244-70 Amended 27418
1652.246-70 Revised 27418
1652.249-70 Amended 27418
1652.370 Amended 27418
Chapter 18
1803.602 Revised 12174
1803.804 -- 1803.806 (Subpart 1803.8) Added 12174
1804.470 Added 47478
1804.470-1 Added 47478
1804.470-2 Added 47478
1804.470-3 Added 47478
1804.470-4 Added 47478
1804.671-1 (a)(5) amended 27088
1804.671-6 (e) amended 47478
1805.303-70 (a)(1) introductory text amended 27088
1805.303-71 (a)(2), (b)(1) introductory text, (ii), and (2) amended
27088
1806.202-70 (a)(2)(i) and (3) amended 47478
1806.302-770 (c) amended 27088
(a) and (c) amended 47478
1806.304 (c) amended 47478
1806.304-70 Removed 12175
1807.103 (a)(1)(i)(B), (b)(1)(i), (A)(2), and (ii)(A)(2) amended
27088
(a)(1)(i)(B) corrected 39156
1807.7102 (b)(1)(ii) amended 27088
1807.7103-1 (a) revised 12175
1809.106-70 (d)(1) and (j)(2)(iv) introductory text amended 27088
1809.404 (b) amended 27088
1810.011-70 (d) amended 47478
Corrected 53153
1813.104 (c) amended 47478
1813.204 Amended 47478
1815.405-71 (b) amended 47478
1815.506 (a)(3) amended 27088
1815.609 Added 47478
1815.804-3 Amended 47478
1815.807-71 Amended 27088
1819.705-4 Added 47478
1819.7101 -- 1819.7103 (Subpart 1819.71) Added 47479
1819.801 Removed 12175
1819.803 Removed 12175
1819.804 Revised 12175
1819.808 Removed 12175
1819.809 Removed 12175
1819.809-1 Removed 12175
1822.804-2 -- 1822.870 (Subpart 1822.8) Revised 12175
1822.1306 Amended 27089
1825.108 Added 12175
1825.402 Amended 12175
1825.7004 Amended 27089
1825.7005 (a) amended 27089
1825.7100 -- 1825.7105 (Subpart 1825.71) Added 12175
Corrected 38808
1827.373 (a)(2) revised 27089
1827.409 (e), (f), and (g) revised 27089
1835.016-70 (b)(3) amended 27089
1837.200 -- 1837.205-71 (Subpart 1837.2) Revised 12176
1837.205 Revised 47479
1839.7001 Revised 12177
1839.7003-1 (d) amended 12177
1839.7003-2 (c) amended 12177
1839.7003-3 Revised 12177
1839.7004 (a) removed; (b) and (c) redesignated as (a) and (b); new
(a) amended 12177
1839.7005 Revised 12177
1839.7006 Revised 12177
1842.102-70 Amended 12177
1842.1004 Amended 47479
1842.7002 (a) designation and (b) removed 27089
1843.205 -- 1843.270 (Subpart 1843.2) Revised 47479
1846.470 -- 1846.470-2 (Subpart 1846.4) Revised 27089
1846.470 Revised 9447
1852.204-76 Added 47479
1852.208-81 Amended 27089
1852.208-83 Amended 12177
1852.210-75 Amended 47479
1852.219-74 Added 47479
1852.225-74 Added 12178
Corrected 38808
1852.225-75 Added 12178
Corrected 38808
1852.227-11 Added 27089
1852.227-14 Added 27089
1852.227-19 Added 27090
(a) amended 47480
Corrected 53153
1852.227-86 Amended 27090
1852.232-81 Amended 27090
1852.242-71 Amended 27090
1852.243-70 Revised 47480
1852.246-71 Amended 27090
1852.246-74 Added 9447
Revised 27090
1852.246-75 Added 27090
1852.250-72 Introductory text corrected 38808
1853.107 (a) amended 47480
1853.215-2 Amended 27090
1870.303 Appendix I amended 27090
1870.403 Appendix I amended 47480
Chapter 28
2804.900 -- 2804.970 (Subpart 2804.9) Added 14094
Chapter 35
Chapter 35 established 7634
3501 -- 3504 (Subchapter A) Added 7634
3501 Added 7635
3502 Added 7638
3503 Added 7638
3504 Added 7640
3505 -- 3510 (Subchapter B) Added 7640
3505 Added 7640
3506 Added 7640
3507 Added 7641
3508 Added 7642
3509 Added 7642
3509.406-3 (b)(1)(ii) introductory text corrected 38331
3510 Added 7644
3513 -- 3517 (Subchapter C) Added 7645
3513 Added 7645
3513.201 (a)(2) corrected 38331
3514 Added 7647
3514.201-6 (c) corrected 38331
3515 Added 7648
3516 Added 7650
3517 Added 7651
3519 -- 3525 (Subchapter D) Added 7651
3519 Added 7651
3520 Added 7651
3522 Added 7652
3524 Added 7653
3525 Added 7654
3525.102 Corrected 38331
3527 -- 3533 (Subchapter E) Added 7656
3527 Added 7656
3528 Added 7656
3528.201 (a) corrected 38331
3528.202 Correctly removed; new 3528.202 redesignated from
3528.202-1; heading revised; (b) amended 38331
3528.202.1 Correctly redesignated as 3528.202; heading revised; (b)
amended 38331
3529 Added 7657
3531 Added 7658
3532 Added 7658
3533 Added 7659
3536 -- 3537 (Subchapter F) Added 7660
3536 Added 7660
3537 Added 7662
3537.206 (c) corrected 38331
3542 -- 3531 (Subchapter G) Added 7663
3542 Added 7663
3543 Added 7664
3547 Added 7664
3551 Added 7664
3552 -- 3553 (Subchapter H) Added 7664
3552 Added 7664
3552.236-76 Amended 38331
3553 Added 7673
3570 (Subchapter I and Part) Added 7674
Chapter 44
4409.406-1 Nomenclature change 28207
4409.406-3 (a), (b), and (c) nomenclature change 28207
4409.407-1 Nomenclature change 28207
4409.407-3 (a) nomenclature change 28207
4415.502 Removed 28207
4415.502-70 Redesignated as 4415.505-1 and heading revised; text
amended 28207
4415.505-2 Added 28207
4415.506 (a) amended; (b) redesignated as (c); new (b) added 28207
4415.506-1 Existing text designated as (a); (b) added 28207
4415.612 -- 4415.612-71 (Subpart 4415.6) Added 28207
4416.303 (b)(3) amended 28208
4419.201 (a) amended 28208
4426 Added 28208
4433 Added 28208
4452.216-70 Added 28208
4452.226-1 Added 28208
4452.239-70 Removed 28209
4452.239-71 Removed 28209
Chapter 99
Chapter 99 Chapter established; interim 47056
9900 Added; interim 47056
9901 Added; interim 47056
48 CFR 9901.317 1991
48 CFR
56 FR
Page
Chapter 15
1501.670-1 Removed 6288
1501.670-2 Removed 6288
1501.670-3 Removed 6288
1501.670-4 Removed 6288
1501.670-5 Removed 6288
1501.670-6 Removed 6288
1501.670-7 Removed 6288
1510.001 Added 42236
1510.002 Added 42236
1510.011-79 Added 42236
1513.570 Revised 32518
1516.301-70 Added; eff. 10-4-91 43711
1516.307 Existing text designated as (a); (b) added; eff. 10-4-91
43711
1516.404-276 (a) amended 6288
1537.200 -- 1537.205 (Subpart 1537.2) Revised 5957
1552.210-79 Added 42236
1552.216-74 Added; eff. 10-4-91 43711
Chapter 18
1801.104-370 Revised 48738
1801.302-70 (b) amended 48738
1801.370 Added 48738
1801.402 Amended 12458
Corrected 15134
1801.471 (a)(1) amended 12458
1803.101 -- 1803.104-12 (Subpart 1803.1) Revised 8719
1804.202 (a) amended 12458, 48739
1804.470-2 Amended 8720
1804.671-4 (qqq) amended 8720
(d) and (u) amended; (l) revised; (ll) and (tt) revised; (ccc)
through (sss) redesignated as (ddd) through (ttt) and amended; new
(ccc) added 48739, 48740
1804.804-5 Revised 32115
1805.207 (b) amended 8721
1806.302-4 Added 8721
1806.302-470 Added 8721
1806.304 (a) amended 32115
(a) revised 48740
1807.170-1 (c) redesignated as (d); new (c) added 48740
1807.170-2 Amended 48740
1807.7102 (a) amended 32115
1808.304-573 Revised 12458
1810.002 Text added 48740
1812.302 (b) amended 48740
1812.303-70 (c) amended 48740
1814.404-170 (b) introductory text amended 8721
1815.613-70 Amended 8721
1815.804 -- 1815.872 (Subpart 1815.8) Revised 48740
1815.805-5 (b) revised 8721
1815.902 -- 1815.971 (Subpart 1815.9) Revised 48743
1815.1003-4 (c) revised 48746
1817.204 (a) amended 48746
1819.170 (Subpart 1819.1) Removed 8721
1819.705-4 Heading revised; existing text designated as (a); (b)
added 48746
1819.7001 -- 1819.7004 (Subpart 1819.70) Added 48746
1825.102 (b)(1), (2)(i) and (ii) introductory text revised; (b)(3)
removed 48747
1825.407 Removed 32115
1825.407-70 Removed 32115
1825.703 Amended 32115
1825.901 (Subpart 1825.9) Revised 48747
1825.903 Amended 12458
1825.7100 Revised 32115
1825.7101 Amended 32115
1825.7104 Introductory text revised 32115
1825.7105 Revised 32115
1825.7200 (Subpart 1825.72) Added 12458
1827.404 (e)(1) amended 12458
1827.406 (b)(1)(v) amended 12458
(b)(1)(iv) and (v) amended 48747
1828.311-2 Revised 12459
1832.402-1 Added 48747
1832.410-70 (b) removed; (c) and (d) redesignated as (b) and (c);
new (c) revised 48747
1832.412-70 Added 48747
1832.702-70 (e) added 48747
1835.071 Revised 12459
1836.702 (Subpart 1836.7) Heading amended 8721
1837.110 Amended 48748
1839 Revised 32116
1839.7001 (b) corrected 38485
1839.7003-2 (a) introductory text corrected 38485
1842.202 Revised 32117
(b) amended 48748
1842.202-70 (a) revised 32118
1842.708 Added 12459
1842.708-70 Added 12459
1842.708-71 Added 12459
1842.708-72 Added 12459
1842.7003 (c) revised 48748
1845.302-71 (b) amended 32119
1845.302-72 (b) amended 32119
1846.270 (a) revised 12459
1849.101-70 (a)(3) amended 12460
1849.102-70 (b) introductory text, (c) and (d) amended 8721
1852.208-70 Introductory text amended 12460
1852.208-71 Introductory text amended 12460
1852.208-72 Introductory text amended 12460
1852.208-73 Introductory text amended 12460
1852.208-74 Introductory text amended 12460
1852.208-75 Introductory text amended 12460
1852.208-76 Introductory text amended 12460
1852.208-77 Introductory text revised 12460
1852.208-78 Amended 12460
1852.208-79 Introductory text amended 12460
1852.208-80 Introductory text amended 32119
1852.208-81 Amended 32119
1852.210-70 Introductory text amended 12460
1852.210-75 Amended 12460
1852.215-79 Introductory text amended 12460
1852.216-76 Introductory text amended 12460
1852.216-83 Introductory text amended 12460
1852.219-72 Removed 8721
1852.219-76 Added 48748
1852.223-70 Introductory text amended 12460
1852.225-72 Introductory text amended 12460
Removed 32119
1852.225-74 Amended 32119
1852.225-75 Amended 32119
1852.232-76 Added 48748
1852.235-70 Amended 48748
1852.242-70 Amended 32119
1852.242-71 Introductory text amended 12460
1852.243-70 Introductory text revised 12460
1852.246-70 Heading revised; text amended 12460
1852.250-70 Introductory text amended 12460
1853.204-70 (l) revised 32119
1853.207 (a) and (b) amended 8721
(b) amended 48748
1853.227 Removed 48748
Chapter 19
Chapter 19 Temporary waiver 22661
Chapter 28
2801.603 (c) heading revised; (c)(2)(ii), (3)(ii) and (4)(ii)
amended; (d) through (h) redesignated as (e) through (i); new (d) and
(f)(3) added 26340
2801.7001-701 -- 2801.7001-703 (Subpart 2801.70) Revised 37860
2803.408 (Subpart 2803.4) Heading added 26341
2803.502 (Subpart 2803.5) Heading added 26341
2804.903-70 (c) amended 26341
2805.503-70 (d) amended 26341
2806.302 -- 2806.302-70 (Subpart 2806.3) Added 26341
2806.501 (a) amended 26341
2815.805-570 Revised 26341
2819.701 -- 2819.702 (Subpart 2819.70) Added 26341
2870 (Subchapter I) Added 26342
Chapter 99
Chapter 99 Regulation at 55 FR 47056 confirmed 19304
9901 Revised 19304
48 CFR 9901.317 1991
48 CFR
56 FR
Page
Chapter 18
1825.102 (b)(1) correctly revised; (b)(2) correctly redesignated as
(b)(2)(ii) introductory text; (b)(2)(i) correctly added; (b)(3)
correctly removed 00000
48
Federal Acquisition Regulations System
CHAPTER 15 TO END
Revised as of October 1, 1991
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF OCTOBER 1, 1991
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
48 CFR 9901.317 Table of Contents
Page
Explanation v
Title 48:
Chapter 15 -- Environmental Protection Agency
Chapter 16 -- Office of Personnel Management Federal Employees Health
Benefits Acquisition Regulation
Chapter 17 -- Office of Personnel Management
Chapter 18 -- National Aeronautics and Space Administration
Chapter 19 -- United States Information Agency
Chapter 22 -- Small Business Administration
Chapter 24 -- Department of Housing and Urban Development
Chapter 25 -- National Science Foundation
Chapter 28 -- Department of Justice
Chapter 29 -- Department of Labor
Chapter 34 -- Department of Education Acquisition Regulation
Chapter 35 -- Panama Canal Commission
Chapter 44 -- Federal Emergency Management Agency
Chapter 51 -- Department of the Army Acquisition Regulations
Chapter 52 -- Department of the Navy Acquisition Regulations
Chapter 53 -- Department of the Air Force Federal Acquisition
Regulation Supplement
Chapter 57 -- African Development Foundation
Chapter 61 -- General Services Administration, Board of Contract
Appeals
Chapter 63 -- Department of Transportation Board of Contract Appeals
Chapter 99 -- Cost Accounting Standards Board, Office of Federal
Procurement Policy, Office of Management and Budget
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
48 CFR 9901.317
48 CFR 9901.317 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.
ISSUE DATES
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 1991), 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). Sales are handled
exclusively by the Superintendent of Documents, Government Printing
Office, Washington, DC 20402 (telephone 202-783-3238).
Martha L. Girard,
Director,
Office of the Federal Register.
October 1, 1991.
48 CFR 9901.317 THIS TITLE
Title 48 -- Federal Acquisition Regulations System is composed of
seven volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51, and parts 52 to 99), chapter 2 (parts 201 to
251 and parts 252 to 299), chapters 3 to 6, chapters 7 to 14 and chapter
15 to End. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 1991,
except that the contents of chapter 2 (parts 201 to 251 and parts 252 to
299) represent all current regulations codified under chapter 2 as of
December 31, 1991.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 59 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 59 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 59 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in 1.105 of chapter 1. For the convenience of the user
1.105 is reprinted in the Finding Aids section of the second volume
containing chapter 1 (parts 52 to 99).
The two volumes containing chapter 1 include an index to the Federal
acquisition regulations. The second volume, containing chapter 1 (parts
52 to 99), includes contract clauses and forms. The two volumes
containing chapter 2 also contain a subject index to the Department of
Defense regulations.
For this volume, Gertrude E. Belton was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
49 CFR 0.0 49 CFR Subtitle A (10-1-91 Edition)
49 CFR 0.0 Office of the Secretary of Transportation
49 CFR 0.0 Title 49 -- Transportation
49 CFR 0.0 (This book contains parts 1 to 99)
Part
SUBTITLE A -- Office of the Secretary of Transportation 1
Editorial Note: Other regulations issued by the Department of
Transportation appear in 14 CFR chapters I and II, 23 CFR, 33 CFR
chapters I and IV, 44 CFR chapter IV, 46 CFR chapters I through III, 48
CFR chapter 12, and 49 CFR chapters I through VI.
49 CFR 0.0 49 CFR Subtitle A (10-1-91 Edition)
49 CFR 0.0 Office of the Secretary of Transportation
49 CFR 0.0 Subtitle A -- Office of the Secretary of Transportation
Part
Page
1 Organization and delegation of powers and duties
3 Official seal
5 Rulemaking procedures
6 Implementation of Equal Access to Justice Act in agency proceedings
7 Public availability of information
8 Classification and declassification of national security
information and material
9 Testimony of employees of the Department and production of records
in legal proceedings
10 Maintenance of and access to records pertaining to individuals
11 Protection of human subjects
17 Intergovernmental review of Department of Transportation programs
and activities
18 Uniform administrative requirements for grants and cooperative
agreements to state and local governments
20 New restrictions on lobbying
21 Nondiscrimination in federally-assisted programs of the Department
of Transportation -- effectuation of title VI of the Civil Rights Act of
1964
23 Participation by minority business enterprise in Department of
Transportation programs
24 Uniform relocation assistance and real property acquisition for
Federal and federally assisted programs
25 (Reserved)
27 Nondiscrimination on the basis of handicap in programs and
activities receiving or benefitting from Federal financial assistance
28 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the Department of Transporation
29 Governmentwide debarment and suspension (nonprocurement) and
governmentwide requirements for drug-free workplace (grants)
30 Denial of public works contracts to suppliers of goods and
services of countries that deny procurement market access to U.S.
contractors
31 Program fraud civil remedies
37 Transportation services for individuals with disabilities (ADA)
38 Americans with Disabilities Act (ADA) accessibility specifications
for transportation vehicles
40 Procedures for transportation workplace drug testing programs
71 Standard time zone boundaries
79 Medals of honor
81 Recommendations to the President under section 801 of the Federal
Aviation Act of 1958
89 Implementation of the Federal Claims Collection Act
90 Audits of State and Local Governments
91 International air transportation fair competitive practices
92 Recovering debts to the United States by salary offset
93 Aircraft allocation
95 Advisory committees
98 Enforcement of restrictions on post-employment activities
99 Employee responsibilities and conduct
Appendix to Subtitle A -- United States Railway Association --
employee responsibilities and conduct
49 CFR 0.0
49 CFR 0.0 49 CFR Subtitle A (10-1-91 Edition)
49 CFR 0.0 Office of the Secretary of Transportation
49 CFR 0.0 PART 1 -- ORGANIZATION AND DELEGATION OF POWERS AND DUTIES
49 CFR 0.0 Subpart A -- General
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Organization of the Department.
1.4 General responsibilities.
49 CFR 0.0 Subpart B -- Office of the Secretary
1.21 Purpose.
1.22 Structure.
1.23 Spheres of primary responsibility.
1.24 Authority.
1.25 Relationships.
1.26 Secretarial succession.
49 CFR 0.0 Subpart C -- Delegations
1.41 Purpose.
1.42 Exercise of authority.
1.43 General limitations and reservations.
1.44 Reservation of authority.
1.45 Delegations to all Administrators.
1.46 Delegations to Commandant of the Coast Guard.
1.47 Delegations to Federal Aviation Administrator.
1.48 Delegations to Federal Highway Administrator.
1.49 Delegations to Federal Railroad Administrator.
1.50 Delegations to National Highway Traffic Safety Administrator.
1.51 Delegations to Urban Mass Transportation Administrator.
1.52 Delegations to Saint Lawrence Seaway Development Corporation
Administrator.
1.53 Delegations to the Administrator of the Research and Special
Programs Administration.
1.54 Delegations to all Secretarial Officers.
1.55 Delegations to Deputy Secretary.
1.56 Delegations to Assistant Secretary for Policy and International
Affairs.
1.56a Delegations to the Designated Senior Career Official, Office of
the Assistant Secretary for Policy and International Affairs.
1.57 Delegations to General Counsel.
1.57a Delegations to the Deputy General Counsel.
1.57b Delegations to the Associate General Counsel.
1.58 Delegations to Assistant Secretary for Budget and Programs.
1.59 Delegations to Assistant Secretary for Administration.
1.59a Redelegations by the Assistant Secretary for Administration.
1.60 Delegations to the Inspector General.
1.61 Delegations to Assistant Secretary for Governmental Affairs.
1.62 Delegations to the Director of Small and Disadvantaged Business
Utilization.
1.63 Delegations to Assistant Secretary for Public Affairs.
1.64 (Reserved)
1.65 Authority to classify information.
1.66 Delegations to Maritime Administrator.
1.67 Delegations to Maritime Subsidy Board.
1.68 Delegations to Director of Commercial Space Transportation.
1.69 Delegations to the Director of Intelligence and Security.
Appendix A to Part 1 -- Delegations and Redelegations by Secretarial
Officers
Authority: 49 U.S.C. 322.
Source: Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, unless otherwise
noted.
49 CFR 0.0 Subpart A -- General
49 CFR 1.1 Purpose.
This part describes the organization of the Department of
Transportation and provides for the performance of duties imposed upon,
and the exercise of powers vested, in the Secretary of Transportation by
law.
49 CFR 1.2 Definitions.
As used in this part, Administrator includes:
(a) The Coast Guard Commandant.
(b) The Federal Aviation Administrator.
(c) The Federal Highway Administrator.
(d) The Federal Railroad Administrator.
(e) The National Highway Traffic Safety Administrator.
(f) The Urban Mass Transportation Administrator.
(g) The Administrator of the St. Lawrence Seaway Development
Corporation.
(h) The Research and Special Programs Administrator.
(i) The Maritime Administrator.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-157, 45 FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28,
1981)
49 CFR 1.3 Organization of the Department.
(a) The Secretary of Transportation is the head of the Department.
(b) The Department is comprised of the Office of the Secretary and
the following operating elements, the heads of which report directly to
the Secretary:
(1) The U.S. Coast Guard, headed by the Commandant.
(2) The Federal Aviation Administration, headed by the Administrator.
(3) The Federal Highway Administration, headed by the Administrator.
(4) The Federal Railroad Administration, headed by the Administrator.
(5) The National Highway Traffic Safety Administration, headed by the
Administrator.
(6) The Urban Mass Transportation Administration, headed by the
Administrator.
(7) The St. Lawrence Seaway Development Corporation, headed by the
Administrator.
(8) The Research and Special Programs Administration, headed by the
Administrator.
(9) The Maritime Administration, headed by the Administrator and
including within it the Maritime Subsidy Board composed of the Maritime
Administrator, the Deputy Maritime Administrator, and the Chief Counsel
of the Maritime Administration.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-157, 45 FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28,
1981)
49 CFR 1.4 General responsibilities.
(a) Office of the Secretary. Provides for:
(1) Leadership in formulating and executing well-balanced national
and international transportation objectives, policies, and programs;
(2) Stimulating and promoting research and development in all modes
and types of transportation, with special emphasis on transportation
safety;
(3) Coordinating the various transportation programs of the Federal
Government;
(4) Encouraging maximum private development of transportation
services;
(5) Responsive, timely, and effective liaison with Congress, and
public and private organizations on transportation matters;
(6) Innovative approaches to urban transportation and environmental
enhancement programs; and
(7) Effective management of the Department as a whole.
(b) U.S. Coast Guard. Is responsible for:
(1) Upon the high seas and waters subject to the jurisdiction of the
United States:
(i) Enforcing or assistance in enforcing applicable Federal laws;
(ii) Administering laws and promulgating and enforcing regulations
for promoting safety of life and property, covering all matters not
specifically delegated by law to some other executive department or
reserved to the States;
(iii) Developing, establishing, maintaining, and operating, with due
regard to the requirements of national defense, aids to navigation,
icebreaking facilities, and rescue facilities for promoting safety; and
(2) Maintaining a state of readiness to function as a specialized
service in the Navy, in time of war or when the President shall direct,
as provided in section 3 of title 14, United States Code.
(c) The Federal Aviation Administration. Is responsible for:
(1) Promulgating and enforcing regulations on all safety matters
relating to the manufacture, operation, and maintenance of aircraft;
(2) Registering aircraft and recording rights in aircraft;
(3) Developing, modifying, testing, and evaluating systems,
procedures, facilities, and devices needed for the safe and efficient
navigation and traffic control of aircraft;
(4) Locating, constructing or installing, maintaining, and operating
Federal aids to air navigation, wherever necessary;
(5) Developing air traffic regulations, and administering air traffic
control of civil and military air operations within U.S. airspace;
(6) Providing grants-in-aid for developing public airports; and
(7) Promoting and encouraging civil aviation abroad through technical
aviation assistance to other governments.
(d) The Federal Highway Administration. Is responsible for:
(1) Planning, in cooperation with the States, the national highway
system;
(2) Providing for improving, in cooperation with the States, roads on
the Federal-aid primary, secondary, and interstate highway systems and
urban extensions thereof;
(3) Highway beautification and scenic enhancement of the Federal-aid
highway systems;
(4) Surveying and constructing forest highway system roads, defense
highways and access roads, and parkways and roads in national parks and
other federally administered areas;
(5) Inspecting records of motor carriers operating in interstate
commerce, inspecting motor carrier vehicles, and investigating accidents
and reporting violations of motor carrier safety regulations; and
(6) Developing and administering uniform State standards for highway
safety programs with respect to identification and surveillance of
accident locations; highway design, construction, and maintenance,
including highway related aspects of pedestrian safety; and traffic
control devices.
(e) The Federal Railroad Administration. Is responsible for:
(1) Operating and managing the Alaska Railroad;
(2) Conducting research and development activity in support of
improved rail transportation;
(3) Regulating safety functions pertaining to railroads, express
companies, and water carriers operating in connection with railroads
under a common control, management, or arrangement for continuous
carriage or shipment; and
(4) Investigating and issuing reports concerning collisions,
derailments, and other railroad accidents resulting in serious injury to
persons or to the property of a railroad.
(f) The National Highway Traffic Safety Administration. Is
responsible for:
(1) Promulgating uniform standards for developing State highway
safety programs, except for those standards the development and
administration of which are delegated to the Federal Highway
Administration.
(2) Establishing, prescribing, and enforcing National standards for
improving safety in the operation and performance of motor vehicles and
equipment.
(3) Informing the public of the comparative characteristics and
operational cost of passenger motor vehicles and requiring display of
comparative insurance costs by automobile dealers.
(4) Administering a program of mandatory automotive fuel economy
standards for passenger and non-passenger automobiles for model year
1978 and beyond.
(5) Establishing safeguards for the protection of purchasers with
respect to the sale of motor vehicles having altered or reset odometers
and enforcing the prohibition against tampering with odometers.
(g) The Urban Mass Transportation Administration. Is responsible
for:
(1) Exercising the authority vested in the Secretary for developing
comprehensive and coordinated mass transportation systems to serve
metropolitan and other urban areas;
(2) Administering urban mass transportation programs and functions;
and
(3) Assuring appropriate liaison and coordination with other
governmental organization, with respect to the foregoing.
(h) The St. Lawrence Seaway Development Corporation. Is responsible
for the development, operation, and maintenance of that part of the St.
Lawrence Seaway within the territorial limits of the United States.
(i) The Research and Special Programs Administration. Is responsible
for:
(1) Planning, developing, initiating and managing programs in all
fields of transportation research and development. Maintaining the
capability to perform research and analysis in transportation planning
and socio-economic effects, program management, and technological
support in response to request for line participation in DOT policy
formulations. Particular efforts will be made on transportation systems
problems, advanced transportation concepts, and on multimodal
transportation. RSPA will develop and maintain a vital statistics and
related transportation information data base;
(2) Exercising for the Secretary the multimodal hazardous materials
(HM) program and prescribing and enforcing safety regulations for the
transportation of gases or hazardous liquids by pipeline;
(3) Developing, managing, and evaluating programs and research
activities for the security of passengers and cargo in the
transportation systems and for the prevention of unlawful or other acts
adversely affecting the efficiency or integrity of the Nation's
transportation systems and providing leadership in the development and
improvement of coordinated domestic and international transportation
services;
(4) Providing leadership on all technical, navigation and
communication, and systems engineering activities;
(5) Providing a point of contact for the Department with the academic
community to encourage transportation research;
(6) Overseeing the effective discharge of the Secretary's statutory
and administrative transportation responsibilities in all emergencies
affecting the national defense and in national or regional crises; and
(7) Managing a Transportation Safety Institute which designs and
conducts training programs responsible to the requirements of Government
and industry as expressed by the operating elements of the Department.
(j) The Maritime Administration. Is responsible for:
(1) Fostering the development and maintenance of an American merchant
marine sufficient to meet the needs of the national security and of the
domestic and foreign commerce of the United States;
(2) Awarding and administering construction-differential subsidy
contracts and operating-differential subsidy contracts to aid the
American merchant marine, and trade-in allowances for new ship
construction;
(3) Entering into and administering agreements for capital
contruction funds (excepting fishing vessels) and construction reserve
funds;
(4) Providing insurance on construction loans and ship mortgages or
guarantees on ship financing obtained from private sources for ship
construction and reconstruction (excepting fishing vessels);
(5) Providing assistance to the shipping industry to generate
increased trade and cargo shipments on U.S. flag ships;
(6) Promoting development of ports and intermodal transportation
systems;
(7) Promoting development of the domestic waterborne commerce of the
United States;
(8) Overseeing the administration of cargo preference statutes;
(9) Entering into and administering charters and general agency
agreements for operation of Government-owned merchant ships;
(10) Maintaining custody of, and preserving, ships in the National
Defense Reserve Fleet;
(11) Selling surplus Government-owned ships;
(12) Supervising design and construction of ships for Government
account;
(13) Furnishing war risk insurance on privately-owned merchant ships;
(14) Administering the foreign transfer program regarding ships and
other maritime properties;
(15) Training merchant marine officers;
(16) Conducting research and development to improve and promote the
waterborne commerce of the United States; and
(17) Issuing rules and regulations with respect to the foregoing
functions.
(k) The Maritime Subsidy Board (within the Maritime Administration).
Is responsible for:
(1) Making, amending, and terminating subsidy contracts, which shall
be deemed to include, in the case of construction-differential subsidy:
(i) The contract for the construction, reconstruction, or reconditioning
of a vessel, and (ii) the contract for the sale of the vessel to the
subsidy applicant or the contract to pay a construction-differential
subsidy and the cost of the national defense features, and, in the case
of operating-differential subsidy, the contract with the subsidy
applicant for the payment of the subsidy.
(2) Conducting hearings and making determinations antecedent to
making, amending, and terminating subsidy contracts, under the
provisions of titles V, VI, and VII, and sections 301 (except
investigations, hearings, and determinations, including changes in
determinations, with respect to minimum manning scales, minimum wage
scales, and minimum working conditions), 708, 805(a), and 805(f) of the
Merchant Marine Act, 1936, as amended (the ''Act'').
(3) Approving the sale, assignment, or transfer of any operating
subsidy contract under section 608 of the Act.
(4) Performing so much of the functions with respect to adopting
rules and regulations, subpoenaing witnesses, administering oaths,
taking evidence, and requiring the production of books, papers, and
documents, under sections 204 and 214 of the Act, as they relate to the
functions of the Board.
(5) Performing as much of the functions specified in section 12 of
the Shipping Act, 1916, as amended, as the same relate to the functions
of the Board under paragraphs (k) (1) through (4) of this section.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-120, 41 FR 42956, Sept. 29, 1976; Amdt. 1-125, 41 FR 53798, Dec. 9,
1976; Amdt. 1-157, 45 FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR
47458, Sept. 28, 1981; Amdt. 1-211, 51 FR 29471, Aug. 18, 1986)
49 CFR 1.4 Subpart B -- Office of the Secretary
49 CFR 1.21 Purpose.
This subpart establishes the basic organizational structure, spheres
of primary responsibility, and lines of authority in the Office of the
Secretary. It also describes the relationships between the Office of
the Secretary and the operating administrations, and provides for
succession to the position of Secretary in case of need.
49 CFR 1.22 Structure.
The structure of the Office of the Secretary, through the level of
functional offices, is as follows:
(a) Secretary and Deputy Secretary. The Secretary and Deputy
Secretary are assisted by the Executive Secretariat, the Contract
Appeals Board, the Departmental Office of Civil Rights, the Office of
Small and Disadvantaged Business Utilization and the Office of
Commercial Space Transportation, all of which report to the Secretary.
The Assistant Secretaries, the General Counsel, the Inspector General,
and the Regional Representatives of the Secretary also report directly
to the Secretary.
(b) Office of the Assistant Secretary for Policy and International
Affairs. This Office is composed of the Offices of Transportation
Regulatory Affairs; International Transportation and Trade; Economics;
Aviation Operations; International Aviation Relations; and Essential
Air Service.
(c) Office of the General Counsel. This Office is composed of the
Offices of Legislation; Litigation; Regulation and Enforcement;
Environmental, Civil Rights, and General Law; International Law; and
the Board for Correction of Military Records.
(d) Office of the Assistant Secretary for Budget and Programs. This
Office is composed of the Offices of Programs and Evaluation; and
Budget.
(e) Office of the Assistant Secretary for Governmental Affairs. This
Office is composed of the Offices of Congressional Affairs; and
Intergovernmental and Consumer Affairs.
(f) Office of the Assistant Secretary for Administration. This
Office is composed of the Offices of Personnel; Management Planning;
Information Resource Management; Administrative Services and Property
Management; Hearings; Acquisition and Grant Management; Security;
and Financial Management.
(g) Office of the Assistant Secretary for Public Affairs. This
Office is composed of the Offices of Public Information; and TV, Film,
and Publications.
(h) Office of the Inspector General. The duties and responsibilities
of the Office of Inspector General are carried out by the Assistant
Inspector General for Auditing; the Assistant Inspector General for
Investigations; and the Assistant Inspector General for Policy,
Planning, and Resources.
(i) Regional Representatives of the Secretary. These officials
represent the Secretary in the field and constitute a principal point of
contact for the exchange of information in regional interagency, and
intergovernmental affairs.
(Amdt. 1-157, 45 FR 83403, Dec. 18, 1980, as amended by Amdt. 1-184,
48 FR 44078, Sept. 27, 1983; Amdt. 1-213, 51 FR 34218, Sept. 26, 1986;
Amdt. 1-234, 55 FR 40662, Oct. 4, 1990)
49 CFR 1.23 Spheres of primary responsibility.
(a) Secretary and Deputy Secretary. Overall planning, direction, and
control of Departmental affairs including civil rights, contract
appeals, small and disadvantaged business participation in Departmental
programs, transportation research and technology, and commercial space
transportation.
(b) Assistant Secretary for Policy and International Affairs. Public
policy assessment and review; private sector evaluation; regulatory
and legislative review; international policy and issues; economic
regulation of the airline industry; and essential air service program.
(c) General Counsel. Legal services as the chief legal officer of
the Department, legal advisor to the Secretary, the Office of the
Secretary, and final authority within the Department on questions of
law; professional supervision, including coordination and review, over
the legal work of the legal offices of the Department; drafting of
legislation and review of legal aspects of legislative matters; point
of coordination for the Office of the Secretary and Department
Regulations Council; advice on questions of international law;
exercise of functions, powers, and duties as Judge Advocate General
under the Uniform Code of Military Justice (chapter 47 of title 10,
United States Code) with respect to the United States Coast Guard;
advice and assistance with respect to uniform time matters; review and
final action on applications for reconsideration of initial decisions
not to disclose unclassified records of the Office of the Secretary
requested under 5 U.S.C. 552(a)(3); promotion and coordination of
efficient use of Departmental legal resources; recommendation, in
conjunction with the Assistant Secretary for Administration, of legal
career development programs within the Department; review and final
action on application for correction of military records of the United
States Coast Guard.
(d) Assistant Secretary for Budget and Programs. Preparation, review
and presentation of Department budget estimates; liaison with OMB and
Congressional Budget and Appropriations Committees; Departmental
financial plans, apportionments, reapportionments, reprogrammings,
allotments; program and systems evaluation and analysis; program
evaluation criteria; program resource plans; analysis and review of
legislative proposals and one-time reports and studies required by the
Congress; budgetary and selected administrative matters relating to the
immediate Office of the Secretary.
(e) Assistant Secretary for Governmental Affairs. Coordination of
legislative and non-legislative relationships; Congressional affairs;
communications and coordination with Federal, State and local
government, industry and labor, and with citizens and organizations
representing consumers; and coordination on intermodal planning
matters.
(f) Assistant Secretary for Administration. Organization;
delegations of authority; personnel ceiling control; management
studies; personnel management; acquisition and grant management
(except for the responsibility listed for the Office of Small and
Disadvantaged Business Utilization in this section); information
resource management; financial management; property management;
paperwork management; management information; security; computer
support; telecommunications; and administrative support services for
the Office of the Secretary and certain other components of the
Department.
(g) Assistant Secretary for Public Affairs. Public information and
Departmental relations with the news media, the general public, and
selected special publics.
(h) Inspector General. Conduct, supervise, and coordinate audits and
investigations, review existing and proposed legislation and make
recommendations to the Secretary and Congress (Semi-annual reports)
concerning their impact on the economy and efficiency of program
administration, or the prevention and detection of fraud and abuse;
recommend policies for and conduct, supervise, or coordinate other
activities of the Department for the purpose of promoting economy and
efficiency in program administration, or preventing and detecting fraud
and abuse.
(i) (Reserved)
(j) Executive Secretary. Central facilitative staff for the
Immediate Office of the Secretary and Secretarial Officers.
(k) Contract Appeals Board. Hearings and decisions on appeals from
decisions of Departmental contracting officers and on claims for
extraordinary relief under Public Law 85-804.
(l) Departmental Office of Civil Rights. DOT director of equal
employment opportunity; Department-wide compliance officer; title VI
(Civil Rights Act of 1964) coordinator; Department-wide compliance with
related laws, Executive Orders, regulations, and policies, and formal
complaints of discrimination.
(m) Regional Representatives of the Secretary. Interagency,
intergovernmental, and Departmental coordination in the field;
membership on Regional Councils and Field Coordination Groups.
(n) Office of Small and Disadvantaged Business Utilization.
Responsible for the Department's implementation and execution of the
functions and duties under sections 8 and 15 of the Small Business Act,
as amended, (15 U.S.C. 637 and 644) and for other Departmental small and
disadvantaged business policy direction.
(o) Office of Commercial Space Transportation. Focal point within
the Federal government for private sector space launch contacts and
licensing related to commercial expendable launch vehicle operations and
for promotion and encouragement of commercial expendable launch vehicle
industry.
(Amdt. 1-157, 45 FR 83403, Dec. 18, 1980, as amended by Amdt. 1-184,
48 FR 44078, Sept. 27, 1983; Amdt. 1-201, 50 FR 7782, Feb. 26, 1985;
Amdt. 1-209, 51 FR 29232, Aug. 15, 1986; Amdt. 1-213, 51 FR 34219,
Sept. 26, 1986; Amdt. 1-234, 55 FR 40662, Oct. 4, 1990)
49 CFR 1.24 Authority.
(a) The Deputy Secretary may exercise the authority of the Secretary,
except where specifically limited by law, order, regulation, or
instructions of the Secretary.
(b) Acting in his or her own name and title, each Assistant
Secretary, the Inspector General, or the General Counsel, within his or
her sphere of responsibility, is authorized to identify and define the
requirements for, and to recommend to the Secretary, new or revised
Departmental policies, plans, and proposals. Each of these officers is
authorized to issue Departmental standards, criteria, systems and
procedures that are consistent with applicable laws, Executive Orders,
Government-wide regulations and policies established by the Secretary,
and to inspect, review, and evaluate Departmental program performance
and effectiveness and advise the Secretary regarding the adequacy
thereof.
(c) Except for nondelegable statutory duties, including those which
devolve as a result of succession to act as Secretary of Transportation,
each Deputy Assistant Secretary, the Deputy Inspector General, and the
Deputy General Counsel is authorized to act for and perform the duties
of his or her principal in the absence or disability of the principal
and as otherwise directed by the principal.
(d) Inspector General. The Inspector General shall report to and be
under the general supervision of the Secretary and Deputy Secretary. In
accordance with the statutory intent of the Inspector General Act to
create an independent and objective unit, the Inspector General is
authorized to make such investigations and reports relating to the
administration of the programs and operations of the Department as are,
in the judgment of the Inspector General, necessary and desirable.
Neither the Secretary nor the Deputy Secretary shall prevent or prohibit
the Inspector General from initiating, carrying out, or completing any
audit or investigation, or from issuing any subpoena during the course
of any audit or investigation.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-157, 45 FR 83404, Dec. 18, 1980)
49 CFR 1.25 Relationships.
(a) Normal staff role. Normally, the functions of the Assistant
Secretaries are staff and advisory in nature. In performing their
functions, the Assistant Secretaries are responsible for continuing
liaison and coordination among themselves and with the operating
administrations to:
(1) Avoid unnecessary duplication of effort by or in conflict with
the performance of similar activities by the operating administrations
and the other Assistant Secretaries pursuant to their Secretarial
delegations of authority; and
(2) Assure that the views of the operating administrations are
considered in developing Departmental policies, plans, and proposals.
The Assistant Secretaries are also available to assist, as
appropriate, the operating administrations in implementing Departmental
policy and programs. As primary staff advisors to the Secretary, the
Assistant Secretaries are concerned with transportation matters of the
broadest scope, including modal, intermodal, and other matters of
Secretarial interest.
(b) Exceptions. There are exceptions to the normal staff role
described in paragraph (a) of this section. In selected instances, the
Secretary has specifically delegated to Assistant Secretaries authority
which they may exercise on the Secretary's behalf. For example, the
Secretary has delegated authority to the Assistant Secretary for Policy
and International Affairs to decide on most requests to intervene or
appear before administrative agencies, subject to the concurrence of the
General Counsel. Also, from time to time, activities of an operational
character may be delegated to an Assistant Secretary when the nature of
the function or its stage of development makes it untimely to effect
assignment to an operating administration.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-157, 45 FR 83405, Dec. 18, 1980)
49 CFR 1.26 Secretarial succession.
(a) The following officials, in the order indicated, shall act as
Secretary of Transportation, in case of the absence or disability of the
Secretary, until the absence or disability ceases, or, in case of a
vacancy, until a successor is appointed:
(1) Deputy Secretary.
(2) General Counsel.
(3) Assistant Secretary for Policy and International Affairs.
(4) Assistant Secretary for Governmental Affairs.
(5) Assistant Secretary for Budget and Programs.
(6) Assistant Secretary for Public Affairs.
(7) Assistant Secretary for Administration.
(8) Saint Lawrence Seaway Development Corporation Administrator.
(b) Without regard to the foregoing, a person directed to perform the
duties of the Secretary pursuant to 5 U.S.C. 3347 shall act as Secretary
of Transportation.
(Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-184,
48 FR 44079, Sept. 27, 1983)
49 CFR 1.26 Subpart C -- Delegations
49 CFR 1.41 Purpose.
(a) Except as provided in paragraph (b) of this section, this subpart
provides for the exercise of the powers and performance of the duties
vested in the Secretary of Transportation by law.
(b) For delegations of authority vested in the Secretary by Executive
Order 11652 originally to classify documents as secret or confidential,
see 8.11 of this subtitle.
49 CFR 1.42 Exercise of authority.
In exercising powers and performing duties delegated by this subpart
or redelegated pursuant thereto, officials of the Department of
Transportation are governed by applicable laws, Executive orders and
regulations and by policies, objectives, plans, standards, procedures,
and limitations as may be issued from time to time by or on behalf of
the Secretary, or, with respect to matters under their jurisdictions, by
or on behalf of the Deputy Secretary, an Assistant Secretary, the
Inspector General, the General Counsel, or an Administrator. This
includes, wherever specified, the requirement for advance notice to,
prior coordination with, or prior approval by an authority other than
that of the official proposing to act.
(Amdt. 1-114, 41 FR 1288, Jan. 7, 1976, as amended by Amdt. 1-157, 45
FR 83405, Dec. 18, 1980)
49 CFR 1.43 General limitations and reservations.
(a) All powers and duties that are not delegated by the Secretary in
this subpart, or otherwise vested in officials other than the Secretary,
are reserved to the Secretary. Except as otherwise provided, the
Secretary may exercise powers and duties delegated or assigned to
officials other than the Secretary.
(b) Except as provided in 1.42 and subject to paragraph (a) of this
section and 1.44, the Deputy Secretary, the Assistant Secretaries, the
Inspector General, the General Counsel, and the Administrators exercise
the powers and perform the duties delegated to them under this subpart.
(c) Notwithstanding the provisions of paragraph (a), the delegation
of authority in 1.56a of this title to the Designated Senior Career
Official in the Office of the Assistant Secretary for Policy and
International Affairs to make decisions in certain aviation hearing
cases is exclusive, and may not be exercised by any other Departmental
official, including the Secretary. The Secretary reserves (and
delegates to the Assistant Secretary for Policy and International
Affairs) only the authority to make discretionary review of any such
decision and to approve it or to remand it for reconsideration by the
Designated Senior Career Official, with a full written explanation of
the basis for the remand.
(Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-199,
49 FR 50996, Dec. 31, 1984)
49 CFR 1.44 Reservation of authority.
The delegations of authority in 1.45 through 1.53 and 1.66 and
1.67 do not extend to the following actions, authority for which is
reserved to the Secretary or the Secretary's delegatee within the Office
of the Secretary:
(a) General transportation matters. (1) Transportation leadership
authority under section 4(a) of the Department of Transportation Act (49
U.S.C. 1653(a)).
(2) Functions relating to transportation activities, plans, and
programs under section 4(g) of the Department of Transportation Act (49
U.S.C. 1653(g)).
(3) Authority to develop, prepare, coordinate, transmit, and revise
transportation investment standards and criteria under section 7 of the
Department of Transportation Act (49 U.S.C. 1656).
(4) Authority relating to standard time zones and advanced (daylight)
time (15 U.S.C. 260 et seq.).
(5) Authority related to national transportation policy under section
3 of the Airport and Airway Development Act of 1970 (84 Stat. 219).
(b) Legislation and reports. (1) Submission to the President, the
Director of the Office of Management and Budget, or the Congress of
proposals or recommendations for legislation, Executive orders,
proclamations or reorganization plans or other Presidential action.
(2) Submission to Congress or the President of any report or any
proposed transportation policy or investment standards or criteria,
except with the prior written approval of the Secretary.
(3) Submission of the annual statement on systems of internal
accounting and administrative control under the Federal Managers'
Financial Integrity Act of 1982 (Pub. L. 97-255).
(c) Budget and finance. (1) Approval and submission to the Office of
Management and Budget of original or amended budget estimates or
requests for allocations of personnel ceiling (31 U.S.C. 22-24).
(2) Approval of requests for legislation which, if enacted, would
authorize subsequent appropriations for the Department (31 U.S.C.
581b).
(3) Transfer of the balance of an appropriation from one operating
element to another within the Department (31 U.S.C. 581c).
(4) Submission to the Director of the Office of Management and Budget
of requests for the transfer of the balance or portions of an
appropriation from one element to another within the Department (31
U.S.C. 665).
(d) Interventions and appearances. Except with respect to
proceedings relating to safety fitness of an applicant (49 U.S.C.
1653(e)), the making of decisions on requests to intervene or appear
before courts and administrative agencies to present the views of the
Department.
(e) Personnel. (1) Recommendations to the Civil Service Commission
of the allocation of a position to GS-16, 17, or 18 or an equivalent
level (5 U.S.C. 5108).
(2) Recommendations to the Civil Service Commission of approval of
the qualifications of any candidate for a position at grade GS-16, 17,
or 18 or an equivalent level (5 U.S.C. 3324), or to an executive level
position.
(3) Recommendations to the Civil Service Commission of a Lump-Sum
Incentive Award in Excess of $5,000 (5 U.S.C. 4502).
(4) Approval of the following actions relating to Schedules A, B, and
C and noncareer executive assignment positions or incumbents, except for
actions under Schedules A and B limited to one year or less at grade
GS-9 or lower, or an equivalent level:
(i) Establishment or abolition of positions;
(ii) Hires;
(iii) Promotions other than quality and periodic within-grade
promotions;
(iv) Transfer of personnel to Schedule A, B, or C positions or
non-career executive assignment positions, either permanently or on
detail; and
(v) Transfer of personnel from Schedule A, B, or C or non-career
executive assignment positions to career Civil Service positions.
(5) Approval of employment of experts or consultants.
(6) Authority relating to scientific and professional positions under
section 6(a) (5) of the Department of Transportation Act (49 U.S.C.
1655(a)(5)).
(7) Authority to determine the maximum limit of age for appointment
of air traffic controllers as provided by 5 U.S.C. 3307(b) (86 Stat.
141).
(8) Authority to develop, coordinate, and issue wage schedules under
the Federal Wage system, except as delegated to the Commandant of the
Coast Guard at 1.46.
(f) Security. (1) Suspension or removal of an employee from a
position in the Department for security reasons under Executive Order
10450 (3 CFR, 1949-53 Comp., p. 936) or the employment in the Department
of a person who was previously separated for security reasons from any
Federal agency.
(2) Authorizing the filling of a critical-sensitive position for a
limited period by a person on whom a preappointment full field
investigation has not been completed (Executive Order 10450).
(3) Requesting Presidential approval of a claim of executive
privilege with respect to information requested by a congressional
committee or Member of Congress.
(4) Making determinations prescribed by sections 4(a)(2)(B), 4(b)(3),
5(b), and 9 of Executive Order 10865 (3 CFR, 1959-63 Comp., p. 398)
relating to the adjudication and final denial of access to classified
information to industry personnel.
(5) Making those determinations or delegations prescribed by sections
2(B) (3), 5(E) (1) and (2) of Executive Order 11652 (37 FR 5209, March
10, 1972) which are reserved to the head of the Department.
(g) Procurement. Exercise of the extraordinary authority for defense
contracts provided for in Public Law 85-804 (50 U.S.C. 1431-1435), and
considerations and decisions on contract appeals and other matters
pursuant to the Department of Transportation Contract Appeals
Regulations (41 CFR part 12-60).
(h) Printing. Requesting approval of the Joint Committee on Printing
for any procurement or other action requiring Committee approval.
(i) Interagency agreements. Execution of any written
interdepartmental or interagency agreement with the head of another
executive department or agency.
(j) Withholding of funds. Withholding or suspension of Federal-Aid
Highway funds on a state-wide basis and the waiver or compromise of such
withholding or suspension, except for the administration of 23 U.S.C.
141 and 154, which are specifically delegated in 1.48(b) (23) and (28)
and in 1.50(i) (1) and (2).
(k) Alaska Railroad. Extension or abandonment of railroad service.
(l) National Highway Safety Advisory Committee. Directing the
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
(m) Coast Guard. The following powers relating to the Coast Guard:
(1) Appointment of Advisory Committee to the Academy (14 U.S.C.
193).
(2) Fixing date for visit to Academy by Board of Visitors (14 U.S.C.
194(b)).
(3) Establishment of promotion zone for selection of rear admirals
(14 U.S.C. 256(b)).
(4) Removal of an officer from active duty when recommended by a
board convened under section 323 of title 14 U.S. Code (14 U.S.C. 326).
(5) Responsibility for supervising activities of Reserve components
(10 U.S.C. 264(b)).
(6) Convening General Courts-Martial under the personal authority
granted by law (10 U.S.C. 822(a)(2)).
(7) Approval of execution of a sentence dismissing a commissioned
officer or cadet (10 U.S.C. 871(b)).
(8) Approval of vacation of a suspension of dismissal (10 U.S.C.
872(b)).
(9) Establishing procedures for the correction of military records
(10 U.S.C. 1552(a)).
(10) Establishing a Discharge Review Board under 10 U.S.C. 1553 and
reviewing and taking final action on its findings in the following
cases:
(i) Those cases in which a minority of the Board requests that their
written opinion be forwarded to the Secretary for consideration;
(ii) Those cases selected by the Commandant to inform the Secretary
of aspects of the Board's functions which may be of interest to the
Secretary;
(iii) Any case in which the Secretary demonstrates an interest; and
(iv) Any case which the president of the Board believes is of
significant interest to the Secretary.
(11) (Reserved)
(12) Substitute administrative discharge for dismissal of an officer
under 10 U.S.C. 804 (a) and (b).
(13) Designation of commanding officers and officers in charge who
may convene general, special and summary courts-martial. (10 U.S.C.
822(a)(6), 823(a)(7), and 824(a)(4).
(14) In time of war certify cases to President to extend statute of
limitations until after termination of hostilities. (10 U.S.C.
843(e)).
(15) Direct Judge Advocate General to establish branch office. (10
U.S.C. 868).
(16) Designate officers authorized to remit or suspend any part of
amount of unexecuted part of any sentence. (10 U.S.C. 874(a)).
(17) Substitute administrative form of discharge for discharge or
dismissal executed in accordance with sentence of court-martial (10
U.S.C. 874(b)).
(18) Substitute administrative discharge for previously executed
sentence of dismissal when dismissal not imposed at new trial. (10
U.S.C. 875(c)).
(19) Designate persons to convene courts of inquiry. (10 U.S.C.
935(a)).
(n) Automatic data processing. Approval authority relating to
automatic data processing equipment and services as delimited by DOT
1370.2A, Procurement of Automatic Data Processing Equipment and
Services, of 7.22.70.
(o) Deepwater ports. The following powers and duties relating to the
Deepwater Port Act of 1974 (33 U.S.C. 1501-1524):
(1) The authority to issue, transfer, amend or renew a license for
the construction and operation of a deepwater port (33 U.S.C. 1503(b)).
(2) Approval of fees charged by adjacent coastal States for use of a
deep-water port and directly related land based facilities (33 U.S.C.
1504(h)(2)).
(3) Consultation with the Secretary of State relating to
international actions and cooperation in the economic, trade and general
transportation policy aspects of the ownership and operation of
deepwater ports (33 U.S.C. 1510).
(4) Prescription of regulations for the submission of notice of the
commencement of a civil suit (33 U.S.C. 1515(b)(2)).
(5) Intervention in any civil action to which the Secretary is not a
party (33 U.S.C. 1515(c)).
(6) Authority to recover for damages to natural resources (33 U.S.C.
1517(i) (3)).
(7) Authority to request the Attorney General to seek the suspension
or termination of a deepwater port license and to initiate a proceeding
before the Interstate Commerce Commission (33 U.S.C. 1507, 1511).
(p) Offshore Oil Pollution Compensation Fund. The following powers
and duties included in title III of the Outer Continental Shelf Lands
Act Amendments of 1978 (Pub. L. 95-372):
(1) The authority to appoint three member panels to hear and decide
disputes pursuant to section 307(h).
(2) The authority to refer a disputed claim to a three member panel
for decision in accordance with section 307(i)(1).
(q) Review and finality of actions by Maritime Subsidy Board. (1)
Review of any decision, report, and/or order of the Maritime Subsidy
Board, as described in 46 CFR part 202, as amended.
(r) Approval of cash purchases of passenger transportation. The
authority under FPMR G-72, as amended, to authorize and approve cash
purchases for emergency passenger transportation services costing more
than $100.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975)
Editorial Note: For Federal Register citations affecting 1.44, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
49 CFR 1.45 Delegations to all Administrators.
(a) Except as prescribed by the Secretary of Transportation, each
Administrator is authorized to:
(1) Exercise the authority of the Secretary over and with respect to
any personnel within their respective organizations.
(2) Exercise the authority of the Secretary as executive head of a
department, under any statute, Executive order or regulation.
(3) Request the Attorney General to approve the award, compromise, or
settlement of any tort claim for an amount exceeding $25,000 (28 U.S.C.
2672).
(4) Carry out the functions vested in the Secretary concerning
environmental enhancement by 49 U.S.C. 303.
(5) Carry out the emergency preparedness functions assigned to the
Secretary by Executive Order 12656 and by the Federal Emergency
Management Agency, General Services Administration (FEMA/GSA) as they
pertain to his administration, including those relating to continuity of
operations, emergency resource management, associated Federal claimant
procedures, facilities protection and warfare effects monitoring and
reporting, research, stockpiling, financial aid, and training.
(6) Enter into inter- and intradepartmental reimbursable agreements
other than with the head of another department or agency (31 U.S.C.
686). This authority may be redelegated only to Office Directors,
Regional Directors, District Commanders or other comparable levels and
Contracting Officers.
(7) Determine the existence and amount of indebtedness and the method
of collecting repayments from employees and members within their
respective administrations and collect repayments accordingly, as
provided by 5 U.S.C. 5514. Redelegation of this authority may be made
only to the principal officials responsible for financial management or
such officials' principal assistants.
(8) Waive claims and make refunds in connection with claims of the
United States for erroneous overpayment of pay and allowances in amounts
aggregating not more than $500 without regard to any repayments, and
deny requests for waiver of such claims regardless of the aggregate
amount of the claim, as provided by 4 CFR, parts 91, 92, and 93.
Redelegation of this authority may be made only to the level of Regional
Director or District Commander.
(9) Settle and pay claims by employees for personal property losses
as provided by 31 U.S.C. 3721. This authority may be redelegated only to
Office Directors, Regional Directors, District Commanders, or other
comparable levels and to those individuals that report to the above
officials.
(10) Exercise the authority of the Secretary to accept or reject
internal complaints of discrimination on the basis of race, color,
religion, sex, national origin, or age arising within or relating to his
or her organization.
(11) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer.
(12) Authorize and approve official non-foreign travel and
transportation for themselves, their subordinates, and others performing
services for, or in cooperation with, their operating administrations.
Additionally, heads of operating administrations, through a redelegation
from the Deputy Secretary, may authorize and approve routine operational
foreign travel, as defined in DOT 1500.6A, Travel Manual, of 1-2-85.
These authorities may be redelegated in accordance with regulations
issued by the Assistant Secretary for Administration.
(13) Exercise the authority of the Secretary to make certifications,
findings and determinations under the Regulatory Flexibility Act (Pub.
L. 96-354) with regard to any rulemaking document for which issuance
authority is delegated by other sections in this part. This authority
may be redelegated to those officials to whom document issuance
authority has been delegated.
(14) Carry out the functions vested in the Secretary by section 2 of
the Federal Technology Transfer Act of 1986, (Pub. L. No. 99-502; 15
U.S.C. 3710a), which authorizes agencies to permit their laboratories to
enter into cooperative research and development agreements.
(b) Except as otherwise specifically provided, each official to whom
authority is granted by 1.45 through 1.53, 1.66, and 1.68 may
redelegate and authorize successive redelegations of that authority
within the organization under that official's jurisdiction.
(c) Except as provided in 1.48 and 1.59 and 49 CFR 25.302, the
functions, powers, and duties of the Secretary of Transportation, with
respect to the Uniform Relocation Assistance and Real Property
Acquisition Act of 1970, Public Law 91-646, 84 Stat. 1984, are
delegated to:
(1) The head of each of the following Operating Administrations with
respect to programs administered by their respective organizations:
(i) U.S. Coast Guard;
(ii) Federal Aviation Administration;
(iii) Federal Highway Administration;
(iv) Federal Railroad Administration;
(v) Urban Mass Transportation Administration;
(vi) National Highway Traffic Safety Administration;
(vii) St. Lawrence Seaway Development Corporation; and
(viii) Maritime Administration.
(2) (Reserved)
(d) Each office to whom authority is delegated by either 1.45(c) or
1.59(p) may redelegate and authorize successive redelegations of that
authority within the organization under the Administrators' or Assistant
Secretary for Administration's jurisdiction.
(e) Each office to whom authority is delegated by either 1.45(c) or
1.59(p) may prescribe additional procedures, requirements and
regulations that are appropriate to the particular programs administered
by the preparing official's organization, provided:
(1) Any such additional guidance is not inconsistent with the Act, 49
CFR part 25 or subpart C of this manual;
(2) Any such additional guidance is approved prior to issuance by the
Federal government's designated lead agency, the Federal Highway
Administration (see 1.48(cc)), in coordination with the Assistant
Secretary for Policy and International Affairs.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
79-12, 44 FR 40641, July 12, 1979; Amdt. 1-157, 45 FR 83405, Dec. 18,
1980; Amdt. 1-159, 46 FR 22593, Apr. 20, 1981; Amdt. 1-202, 50 FR
9036, Mar. 6, 1985; Amdt. 1-210, 51 FR 29233, Aug. 15, 1986; Amdt.
1-221, 52 FR 46365, Dec. 7, 1987; Amdt. 1-225, 53 FR 15845, May 4,
1988; Amdt. 1-234, 55 FR 40662, Oct. 4, 1990; Amdt. 1-242, 56 FR
18526, Apr. 23, 1991)
49 CFR 1.46 Delegations to Commandant of the Coast Guard.
The Commandant of the Coast Guard is delegated authority to:
(a) Carry out the Great Lakes Pilotage Act of 1960, as amended,
except the authority to enter into, revise, or amend arrangements with
Canada (74 Stat. 259, 46 U.S.C. 216 et seq.).
(b) Carry out all the activities of the Coast Guard, including, but
not limited to, law enforcement, safety of life and property at sea
(excluding 46 U.S.C. 170 (7), (10) and (11)), aids to navigation, search
and rescue, icebreaking, oceanographic research and military readiness
functions (49 U.S.C. 1655(b)(1)).
(c) Carry out the following laws relating generally to water vessel
anchorages, drawbridge operating, regulations, obstructive bridges,
pollution of the sea by oil and the locations and clearances of bridges
and causeways over the navigable waters of the United States:
(1) Section 7 of the Act of March 4, 1915, as amended (38 Stat.
1053, 33 U.S.C. 471);
(2) Section 5 of the Act of August 18, 1894, as amended (28 Stat.
362, 33 U.S.C. 499);
(3) The Act of June 21, 1940, as amended (54 Stat. 497, 33 U.S.C.
511 et seq.);
(4) The Oil Pollution Act, 1961, as amended (75 Stat. 402, 33 U.S.C.
1001 et seq.);
(5) Sections 9 and 18 of the Act of March 3, 1899, as amended (30
Stat. 1151; 33 U.S.C. 401, 502);
(6) The Act of March 23, 1906, as amended (34 Stat. 84, 33 U.S.C.
491 et seq.) except section 3 (33 U.S.C. 493) and that portion of
section 4 (33 U.S.C. 494) that relates to tolls.
(7) The General Bridge Act of 1946, as amended (60 Stat. 847, 33
U.S.C. 525 et seq.) except sections 502(c) and 503.
(d) Carry out the functions vested in the Secretary by the Vessel
Documentation Act (94 Stat. 3453, 46 U.S.C. 65a et seq.) and the Tonnage
Measurement Simplification Act (94 Stat. 3461, 46 U.S.C. 71 et seq.),
and the functions assigned to the Secretary by Executive Order 12419
relating to admeasurement of Ships; and carry out Reorganization Plan
No. 1 of 1967, relating to ship mortgages.
(e) Request the Secretary of the Navy to build at naval shipyards
Coast Guard vessels not normally or economically obtainable from private
contractors (14 U.S.C. 145(a)(1)).
(f) Administer Executive Order 11459 (34 FR 5057), relating to
approval of containers for transport under Customs seal.
(g) Exchange information, through the Secretary of State, with
foreign governments on matters dealing with the safety of life and
property at sea, other than radio communications, but not including the
submission of suggestions to the Secretary of State on international
collaboration and conferences (14 U.S.C. 142).
(h) Exchange personnel, vessels, facilities, and equipment with the
Secretary of the Navy to facilitate operational readiness for wartime
service with the Navy, and agree to undertake such assignments and
functions for the mutual benefit of the Navy and Coast Guard as are
necessary and advisable, except with respect to those exchanges and
agreements which, in the Commandant's judgment, may have substantial
political impact or adversely affect mission performance (14 U.S.C.
145(c)).
(i) Approve retention of a rear admiral on active duty for a period
not exceeding one year (14 U.S.C. 290(b)).
(j) Through the Chief Counsel, U.S. Coast Guard, settle and pay
claims against the United States as provided by 10 U.S.C. 2733.
(k) Award life-saving medals and military decorations (except the
Medal of Honor, the Distinguished Service Medal, and the Legion of
Merit) and carry out the laws and Executive orders relating to those
awards (14 U.S.C. 492a, 493, 494, 496, 497, 498, 500, 501, 502;
Executive Order 4601, Mar. 1, 1926, as amended by Executive Order 7786
(3 FR 39); Executive Order 9158 (7 FR 3541), as amended by Executive
Order 9242A (7 FR 7874); Executive Order 10637 (20 FR 7025); Executive
Order 11016 (27 FR 4139); Executive Order 11046 (27 FR 8575);
Executive Order 11448 (34 FR 915)).
(l) Carry out the functions vested in the Secretary by sections
104(i), 104(j), 311(b)(6), 311(p)(6), 312, and 402(b)(6) of the Federal
Water Pollution Control Act, as amended by the Federal Water Pollution
Control Act Amendments of 1972 (86 Stat. 862).
(m) Carry out the functions assigned to the Secretary by sections 2,
5, and 6 of Executive Order 11735, as amended by Executive Order 12418,
assigning functions under the Federal Water Pollution Control Act, as
amended (82 Stat. 862).
(n) Carry out the functions vested in the Secretary by the following
statutes:
(1) Federal Boat Safety Act of 1971 (85 Stat. 213);
(2) Vessel Bridge-to-Bridge Radio-Telephone Act (85 Stat. 164);
(3) Public Law 92-339, relating to the licensing of personnel on
certain towing vessels (86 Stat. 423);
(4) Port and Tanker Safety Act of 1978 (92 Stat. 1471), except
sections 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 to the extent that those
sections pertain to the operation of the St. Lawrence Seaway;
(5) Sections 104 (a) and (g), 107(c), 108, 201, and 302(a) of the
Marine Protection, Research, and Sanctuaries Act of 1972 (Pub. L.
92-532) relating to ocean dumping;
(6) International Voyage Load Line Act of 1973 (Pub. L. 93-115);
(7) Intervention on the High Seas Act (Pub. L. 93-248) except section
13(a);
(8) Public Law 93-524 (88 Stat. 1694) which relates to waste
materials on vessels (46 U.S.C. 77(e));
(9) Public Law 94-85 (89 Stat. 426), which relates to carriage of
additional passengers on documented vessels in emergency situations;
(10)(i) Section 304(a)(1) of the Independent Safety Board Act of 1974
(49 U.S.C. 1903(a)(1)) insofar as it relates to the promulgation of
joint regulations with the National Transportation Safety Board (NTSB)
governing investigations of major marine casualties and casualties
involving public and non-public vessels, and the conduct of accident
investigations upon request of the Board;
(ii) Section 307 of the Independent Safety Board Act of 1974 (49
U.S.C. 1906) insofar as it relates to responses to NTSB recommendations
regarding marine casualties;
(11) International Navigational Rules Act of 1977 (Pub. L. 95-75, 91
Stat. 308); and
(12) International Safe Container Act (Pub. L. 95-208, 91 Stat.
1475), except section 4(e);
(13) 14 U.S.C. 195, relating to instruction of foreign nationals at
the Coast Guard academy;
(14) Inland Navigational Rules Act of 1980 (Pub. L. 96-591).
(o) Carry out the functions vested in the Secretary by 14 U.S.C. 475
and Executive Order 11645, 3 CFR 371 (1973), 37 FR 2923, February 10,
1972, relating to the rental of housing facilities at or near Coast
Guard installations.
(p) Carry out the functions vested in the Secretary by Public Law
92-425 and Executive Order 11687 (37 FR 21479), relating to the Retired
Serviceman's Survivor Benefit Plan.
(q) Carry out the functions vested in the Secretary by section 5 of
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to
navigable waterways other than the St. Lawrence River.
(r) Carry out the functions vested in the Secretary by 14 U.S.C.
657, relating to schooling and transportation to schools for dependents
of Coast Guard personnel.
(s) Carry out the functions and responsibilities vested in the
Secretary by the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524),
except as reserved by 1.44 (o) and delegated by 1.53(c).
(t) Carry out the functions vested in the Secretary by 49 App.
U.S.C. 1801-1819, and 46 App. U.S.C. 3306(a)(5) to the extent they
relate to regulations and exemptions governing the bulk transportation
of hazardous materials that are loaded or carried on board a vessel
without benefit of containers or labels, and received and handled by the
vessel carrier without mark or count, and regulations and exemptions
governing ships' stores and supplies.
(u) Carry out the functions vested in the Secretary by 49 U.S.C.
1808(a), (b), and (c) and 1809 and 1810, relating to investigations,
records, inspections, penalties, and specific relief, so far as they
apply to the transportation or shipment of hazardous materials by water.
(v) Carry out the functions vested in the Secretary by the Magnuson
Fishery Conservation and Management Act (Pub. L. 94-265, as amended; 16
U.S.C. 1801 et seq.) except that the authority to approve seizure of a
foreign vessel may not be redelegated and shall be exercised in each
instance only after consultation with the Department of State.
(w) Issue wage schedules for trades, crafts, and laboring employees
in nonappropriated fund activities.
(x) Carry out the functions vested in the Secretary by 10 U.S.C.
2683 insofar as it relates to the relinquishment to a state of
legislative jurisdiction of the United States over lands and interests
under the control of the Coast Guard in that state.
(y) Carry out the functions and responsibilities vested in the
Secretary by the Natural Gas Pipeline Safety Act of 1968, as amended (49
U.S.C. 1671 et seq.) relating to rulemaking so far as it applies to
liquefied natural gas facilities adjacent to the navigable waters of the
United States: Provided, That such rulemaking is in accordance with the
Memorandum of Understanding between the Coast Guard and Materials
Transportation Bureau executed on February 7, 1978, for regulation of
such facilities.
(z) Carry out the functions vested in the Secretary by the Outer
Continental Shelf Lands Act (43 U.S.C. 1331 et seq.), as amended, titles
III and VI of the Outer Continental Shelf Lands Act Amendments of 1978
(Pub. L. 95-372), and Executive Order 12123, as amended by Executive
Order 12418, except as reserved by 1.44(p) and delegated by
1.53(a)(6).
(aa) Carry out the functions vested in the Secretary by the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1714(i)) for lands
under the administration of the U.S. Coast Guard.
(bb) Carry out the functions vested in the Secretary by the Act of
September 10, 1976 (90 Stat. 1236, 46 U.S.C. 420) relating to the
issuance of permits exempting specific cargo-carrying vessels operating
within the State of Alaska from all or part of 46 U.S.C. 88, 391, 391a,
and 404 and the regulations issued thereunder.
(cc) Carry out the requirements of section 146 of the Surface
Transportation Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689)
relating to foreign-built hovercraft in Alaska.
(dd) Exercise all functions of the General Services Administrator
pertaining to the acquisition of special purpose space in urban centers,
as defined in 41 CFR 101-18.102, to house U.S. Coast Guard Recruiting
Offices pursuant to the Federal Property and Administrative Services Act
of 1949 (63 Stat. 377), as amended, and to acquire such space by firm
term leases up to five (5) years in accordance with the authority
contained in section 210(h) (1) of the Federal Property and
Administrative Services Act of 1949, as amended. Provided, that such
authority is exercised in accordance with the Memorandum of
Understanding between the Department of Transportaion and the General
Services Administration executed on January 27, 1981, for implementation
of this delegation.
(ee) Carry out all functions vested in the Secretary in any capacity
by the Ocean Thermal Energy Conversion Act of 1980 (Pub. L. 96-320,
August 3, 1980), except title II.
(ff) Carry out the functions vested in the Secretary by:
(1) Section 108(a)(3) of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended (42 U.S.C. 9608(a)(3)), and
by sections 7(b)(1), 7(b)(2), and 7(c) (2) of Executive Order 12580
relating to vessel financial responsibility; and
(2) Sections 2(e)(1), 2(e)(2), 2(i), 2(j)(1), 2(j)(2), 2(k), 3(a),
4(b)(1), 4(b)(2), 6(c), 9(d), 9(i), and 11(b)(2) of Executive Order
12580 relating to facilities and vessels under the jurisdiction,
custody, or control of the Coast Guard.
(gg) Carry out the functions, relating to releases or threatened
releases involving the coastal zone, Great Lakes waters, and ports and
harbors, vested in the Secretary by sections 2(f), 2(i), 2(j)(2), 2(k),
4(c)(1), 4(c)(2), 5(b), 6(c), 9(d), 9(i), and 11(b)(2) of Executive
Order 12580 insofar as they relate to:
(1) Responses to releases or threats of releases from vessels;
(2) Emergency action concerning releases or threats of releases at
facilities other than active or inactive ''hazardous waste management
facilities'' (as defined in 40 CFR 270.2); and
(3) Emergency action concerning releases or threats of releases at
active or inactive ''hazardous waste management facilities'' only when
the Coast Guard On-Scene Coordinator determines that such action must be
taken pending the arrival on scene of an Environmental Protection Agency
(EPA) On-Scene Coordinator (OSC). Unless otherwise agreed upon by the
EPA and Coast Guard, this authority will not be exercised unless the EPA
OSC is scheduled to arrive on scene within 48 hours of notification of
the release or threat of release.
As used in this paragraph ''emergency action'' includes any removal
action which, in the view of the Coast Guard On-Scene Coordinator, must
be taken immediately to prevent or mitigate immediate and significant
danger to the public health, welfare, or the environment. Situations in
which such actions may be taken include, but are not limited to, fire,
explosions, and other sudden releases; human, animal, or food chain
exposure to acutely toxic substance; and the contamination of a
drinking water supply. All functions listed in this paragraph include
the authority to contract for, obligate monies for, and otherwise
arrange for and coordinate the responses included within such functions.
(hh) Carry out the functions vested in the Secretary by the Act to
Prevent Pollution from Ships (October 21, 1980; Pub. L. 96-478; 94
Stat. 2297) except section 10(b) and (c) and except as limited by
1.47(n), 1.52(c), and 1.66(u) of this title.
(ii) Carry out the functions vested in the Secretary by the Deep
Seabed Hard Mineral Resources Act (June 21, 1980; Pub. L. 96-283; 94
Stat. 553), except section 118.
(jj) Carry out the functions vested in the Secretary to convene and
approve a Coast Guard Reserve Policy Board as provided in 14 U.S.C. 703.
(kk) Carry out the functions vested in the Secretary by the Fisheries
Amendments of 1982 (Pub. L. 97-389; 96 Stat. 1949) relating to
implementation of the Convention for the Conservation of Salmon in the
North Atlantic Ocean and to documentation and certification of
inspection of certain vessels.
(ll) Carry out the functions assigned to the Secretary by section 4
of Executive Order 12418 of May 3, 1983 (48 FR 20891; May 10, 1983),
relating to demonstration of financial responsiblity for vessels
carrying oil loaded from the Trans-Alaska pipeline.
(mm) -- (oo) (Reserved)
(pp) Except as specifically reserved in 49 CFR 1.44, carry out the
responsibilities of, and exercise the authority of the Secretary
contained in the Uniform Code of Military Justice, chapter 47 of title
10 United States Code, and the Manual for Courts-Martial, United States.
(qq) Carry out the functions and exercise the authority vested in the
Secretary by 14 U.S.C. 659 relating to providing assistance to film
producers and obtaining reimbusement for assistance provided.
(rr) Exercise the authority of the Secretary contained in 10 U.S.C.
1588 to accept voluntary services for a museum or a family support
program operated by the Coast Guard; to determine which expenses are
eligible for reimbursement; and to provide reimbursement from
nonappropriated funds of incidental expenses incurred by persons
providing voluntary services as an ombudsman or for a family service
center program.
(ss) Carry out the functions and exercise the authority vested in the
Secretary by chapter 125, title 46 U.S.C., to establish and maintain a
vessel identification system and to charge fees to persons providing
information to or requesting information from the system.
(tt) Carry out the functions and exercise the authority vested in the
Secretary by chapter 19, title 14 U.S.C., to establish and carry out a
program of environmental compliance and restoration at current and
former Coast Guard facilities and to expend funds from the Environmental
Compliance and Restoration Account.
(uu) Carry out the functions and exercise the authority vested in the
Secretary by 46 U.S.C. 2110 to establish, collect, and enforce the fees
and charges required by that section.
(vv) Carry out the functions and exercise the authority vested in the
Secretary by 46 U.S.C. 8103(b)(3) to waive the citizenship requirements
on vessels documented under U.S. law.
(Sec. 9(e), Department of Transportation Act, 49 U.S.C. 1657(e); 49
CFR 1.57(l); 49 U.S.C. 322)
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975)
Editorial Note: For Federal Register citations affecting 1.46, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
49 CFR 1.47 Delegations to Federal Aviation Administrator.
The Federal Aviation Administrator is delegated authority to:
(a) Carry out the powers and duties transferred to the Secretary of
Transportation by, or subsequently vested in the Secretary by virtue of,
section 6(c)(1) of the Department of Transportation Act (49 U.S.C.
1655(c)(1)), including those pertaining to aviation safety (except those
related to transportation, packaging, marking, or description of
hazardous materials) and vested in the Secretary by section 308(b) of
title 49 U.S.C. and sections 306-309, 312-314, 1101, 1105, and 1111 and
titles VI, VII, IX (excluding section 902(h)), and XII of the Federal
Aviation Act of 1958, as amended.
(b) Carry out title XIII of the Federal Aviation Act of 1958, as
amended (72 Stat. 800; 49 U.S.C. 1531 et seq.), relating to aviation
insurance.
(c) Carry out the functions vested in the Secretary by the Act of
September 7, 1957 (71 Stat. 629; 49 U.S.C. 1324 note), as amended by
section 6(a)(3)(B) of the Department of Transportation Act, relating to
the guarantee of aircraft purchase loans, and those functions which
relate to the issuance of obligations to finance the expenses of such
guarantees.
(d) Administer Executive Orders 11419 and 11322 relating to
prohibited aviation operations and the prohibited carriage of
commodities and products to and from Southern Rhodesia. Carry out the
functions vested in the Secretary by Executive Order 12183.
(e) Provide certain facilities and services to FAA employees and
their dependents at remote locations (49 U.S.C. 1659).
(f) Carry out the functions vested in the Secretary by:
(1) The Airport and Airway Development Act of 1970, as amended (49
U.S.C. 1701 et seq.), except sections 3 and 4 (49 U.S.C. 1702, 1703).
(2) Sections 208 and 209 of the Airport and Airway Revenue Act of
1970, as amended (49 U.S.C. 1742, 1742 note); and
(3) Sections 21, 22, 23(b), 24, and 25 of the Airport and Airway
Development Act Amendments of 1976 (49 U.S.C. 1346(a), 1348 note, 1713
note, 1356a, 1704).
(g) Carry out the functions vested in the Secretary by part B of
title II of the Clean Air Act, as amended (84 Stat. 1703), and by 40 CFR
part 87 as it relates to exemptions from aircraft air pollution
standards.
(h) Carry out the functions of the Secretary under section 208 of the
Appalachian Regional Development Act of 1965 (85 Stat. 168; 40 U.S.C.
App. 208).
(i) Carry out the functions vested in the Secretary by section
902(h)(2) of the Federal Aviation Act of 1958, as amended, as it relates
to enforcement of hazardous materials regulations as they apply to the
transportation or shipment of such materials by air.
(j) Carry out the functions vested in the Secretary by 49 U.S.C.
1807 as it relates to the establishment of procedures for monitoring and
enforcing provisions of regulations with respect to the transportation
of radioactive materials on passenger-carrying aircraft.
(k) Carry out the functions vested in the Secretary by 49 App.
U.S.C. 1808 (a), (b), and (c), 1809 and 1810 relating to investigations,
records, inspections, penalties and specific relief so far as they apply
to the transportation or shipment of hazardous materials by air,
including the manufacture, fabrication, marking, maintenance,
reconditioning, repair, or test of containers which are represented,
marked, certified, or sold for use in the bulk transportation of
hazardous materials by air.
(k) Carry out the functions vested in the Secretary by 49 U.S.C.
1808(a), (b), and (c), 1809, and 1810 relating to investigations,
records, inspections, penalties, and specific relief so far as they
apply to the transportation or shipment of hazardous materials by air.
(l) Serve, or designate a representative to serve, as Vice Chairman
and alternate Department of Transportation member of the Interagency
Group on International Aviation (IGIA) pursuant to interagency agreement
of December 9, 1960, and Executive Order 11382, and provide for the
administrative operation of the IGIA Secretariat.
(m) Carry out the functions vested in the Secretary by sections 4(a)
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug.
20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1981, Pub. L. 96-510), insofar as they relate to aircraft.
(n) Carry out the functions vested in the Secretary by section 3(d)
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it
relates to ships owned or operated by the Federal Aviation
Administration when engaged in noncommercial service.
(o) (Reserved)
(p) Carry out the functions vested in the Secretary by:
(1) Section 553(b) of Public Law 99-83 (99 Stat. 226), which relates
to the authority of Federal Air Marshals to carry firearms and make
arrests, in coordination with the General Counsel; and
(2) The following subsections of section 1115 of the Federal Aviation
Act of 1958, as amended, which relates to the security of foreign
airports: Subsection 1115(a), in coordination with the General Counsel
and the Assistant Secretary for Policy and International Affairs;
subsection 1115(b), in coordination with the Assistant Secretary for
Policy and International Affairs; and subsection 1115(e)(2)(A)(ii), in
coordination with the General Counsel and the Assistant Secretary for
Policy and International Affairs.
(q) Carry out all of the functions vested in the Secretary under
section 404(d) of the Federal Aviation Act of 1958 (49 U.S.C. 1374(d)),
as amended by section 328(a) of the Department of Transportation and
Related Agencies Appropriations Act of 1988 (Pub. L. 100-202).
(r) Carry out the functions vested in the Secretary by the Airport
Safety and Capacity Expansion Act of 1990, title IX, subtitle B of the
Omnibus Budget Reconciliation Act of 1990, Public Law 101-508 (except
those functions vested in the Secretary by sections 9113, 9125, 9127 and
9130).
(s) Carry out functions vested in the Secretary by Airport Noise and
Capacity Act of 1990, title IX, subtitle D of the Omnibus Budget
Reconciliation Act of 1990, Public Law 101-508.
(t) Carry out the functions vested in the Secretary by sections 321
and 410 of the Federal Aviation Act, as amended by the Aviation Security
Improvement Act of 1990, Public Law 101-604, November 16, 1990.
(Secs. 3(e), 6(c), and 9(e), Department of Transportation Act (49
U.S.C. 1652(e), 1655(c), and 1657(e)); 49 U.S.C. 322; 49 CFR 1.57(l))
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975)
Editorial Note: For Federal Register citations affecting 1.47, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
49 CFR 1.48 Delegations to Federal Highway Administrator.
The Federal Highway Administrator is delegated authority to:
(a) Investigate and report on the safety compliance records of
applicants seeking operating authority, or approval of transactions
involving transfer of operating authority, from the Interstate Commerce
Commission, and to intervene and present evidence concerning applicants'
fitness in Commission proceedings under 49 U.S.C. 307, so far as it
relates to motor carriers.
(b) Administer the following sections of title 23, U.S.C.:
(1)(i) 101(a); and
(ii) 101(b), (c), (d), and (e), except as they involve mass
transportation projects authorized by sections 103(e)(4), 142(a)(2), or
142(c);
(2) 103, except as it involves the substitution of non-highway public
mass transit projects authorized by section (e)(4);
(3) 104, including the apportionment of funds for Federal-aid
highways once Congress approves estimates submitted by the Secretary;
(4) 105, except as subsections (a) and (g) involve mass
transportation projects authorized by sections 103(e)(4), 142(a)(2), or
142(c);
(5) 106, except subsections (a), (c), and (d) as they involve mass
transportation projects authorized by sections 103(e)(4), 142(a)(2), or
142(c);
(6) 107;
(7) 108, except as it involves mass transportaton projects authorized
by sections 103(e)(4), 142(a)(2), or 142(c);
(8) 109, except subsections (a), (g), and (h) as they involve mass
transportation projects authorized by sections 103(e) (4), 142(a)(2), or
142(c);
(9) 110, except as it involves mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(10) 111;
(11) 112, 113, 114, except as they involve transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(12) 115;
(13) 116, except subsections (a) and (c) as they involve mass
transportation projects authorized by sections 103(e)(4), 142(a)(2), or
142(c);
(14) 117, except as it involves mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(15) 118, 119, 120;
(16) 121 and 122, except as they involve mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(17) 123;
(18) 124, except as it involves mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(19) 125, 126, and 127;
(20) 128, except as it involves mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(21) 129, 130, 131, 132, 134, 135, 136, 137, 138, and 139;
(22) 140, except paragraph (a) of this section, as it involved mass
transportation projects authorized by sections 103(e)(4), 142(a)(2), or
142(c);
(23) 141, with the concurrence of the National Highway Traffic Safety
Administrator as it relates to certification of the enforcement of speed
limits;
(24) 142, except as it involves mass transportation projects
authorized by subsections (a)(2) and (c) and by 103(e)(4);
(25) 143 and 144;
(26) 145, except as it involves mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(27) 146 through 152 and 155 through 157, inclusive;
(28) 154 and 158 each with the concurrence of the National Highway
Traffic Safety Administrator;
(29) 201 through 205, 210, 212, 214 through 218, (Chapter 2);
(30) 301, 302, and 303;
(31) 304, 305, 306, except as they involve mass transportation
projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(32) 307 through 314 inclusive;
(33) 315 and 317, except as they involve mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
(34) 318 through 321, inclusive; and
(35) 323 and 324, except as they involve mass transportation projects
authorized by sections 103(e)(4), 142(a)(2), or 142(c).
(c) Administer the following laws relating generally to highways:
(1) Sections 105, 107(c) through (e), 123(a) and (b), 124(c), 126(d)
through (g), 138(c), 140, 142 through 145, 147 through 154, 167, and
171, and title IV, as amended (as it relates to matters within the
primary responsibility of the Federal Highway Administrator), of the
Surface Transportation Assistance Act of 1978, Public Law 95-599, 92
Stat. 2689; and sections 502-504, title V, of the Highway Revenue Act
of 1978.
(2) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147, 149,
154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-Aid
Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub. L.
93-643, 88 Stat. 2281).
(3) The Federal-Aid Highway Act of 1970, as amended (except section
118) (84 Stat. 1713).
(4) The Federal-Aid Highway Act of 1968, as amended (82 Stat. 815);
(5) The Federal-Aid Highway Act of 1966, as amended (80 Stat. 766);
(6) The Federal-Aid Highway Act of 1962, as amended (76 Stat. 1145,
23 U.S.C. 307 note);
(7) The Federal-Aid Highway Act of 1956, as amended (70 Stat. 374);
(8) The Federal-Aid Highway Act of 1954, as amended (68 Stat. 70);
(9) The Act of September 26, 1961, as amended (75 Stat. 670);
(10) The Highway Revenue Act of 1956, as amended (70 Stat. 387, 23
U.S.C. 120 note);
(11) The Highway Beautification Act of 1965, as amended (79 Stat.
1028, 23 U.S.C. 131 et seq., notes);
(12) The Alaska Omnibus Act, as amended (73 Stat. 141, 48 U.S.C. 21
note prec.);
(13) The Joint Resolution of August 28, 1965, as amended (79 Stat.
578, 23 U.S.C. 101 et seq., notes);
(14) Section 502(c) of the General Bridge Act of 1946, as amended (60
Stat. 847, 33 U.S.C. 525(c));
(15) The Act of April 27, 1962 (76 Stat. 59);
(16) Reorganization Plan No. 7 of 1949 (63 Stat. 1070); and
(17) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1)
and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of
1976 (Pub. L. 94-280; 90 Stat. 425).
(18) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327), except
section 6 as it relates to matters within the primary responsibility of
the Urban Mass Transportation Administrator.
(19) The Surface Transportation Assistance Act of 1982, Public Law
97-424, as amended,
(i) Except sections 165 and 531 as they relate to matters within the
primary responsibility of the Urban Mass Transportation Administrator;
105(f), 413; 414(b)(1) and (2); 421, 426, and title III; and
(ii) Section 414(b)(1), with the concurrence of the National Highway
Traffic Safety Administrator.
(20) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b),
114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137,
139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151
through 157, 164, and 208 of the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).
(d) (Reserved)
(e) Carry out 49 U.S.C. 3103 relating generally to investigation of
the need for regulation of sizes, weights, and combinations of motor
vehicles and qualifications and maximum hours of service of employees of
motor carriers and motor private carriers.
(f) Carry out 49 U.S.C. 3102 relating generally to qualifications and
maximum hours of service of employees and safety of operation and
equipment of motor carriers, motor private carriers and motor carriers
of migrant workers.
(g) Carry out 49 U.S.C. 503 and 3104 relating generally to service of
process, designation of agents to receive service of process, and
identification of interstate motor vehicles so far as they pertain to
motor private carriers of property and motor carriers of migrant workers
(except motor contract carriers).
(h) -- (i) (Reserved)
(j) Carry out the functions of the Secretary under the Appalachian
Regional Development Act of 1965 (79 Stat. 5; 40 U.S.C. App.) except
section 208.
(k) Initiate proceedings as a complainant under 49 U.S.C. 10925 to
revoke, suspend or amend the certificates, permits or licenses of a
motor carrier.
(l) Carry out the Act of September 21, 1966, Public Law 89-599,
relating to certain approvals concerned with a compact between the
States of Missouri and Kansas.
(m) Carry out the law relating to the Chamizal border highway (80
Stat. 1477).
(n) Carry out the Highway Safety Act of 1966, as amended (80 Stat.
731) and chapter 4 of title 23 U.S.C. as amended by section 207 of the
Surface Transportation Assistance Act of 1978 for highway safety
programs, research and development relating to highway design,
construction and maintenance, traffic control devices, identification
and surveillance of accident locations, and highway-related aspects of
pedestrian and bicycle safety.
(o) Exercise the authority vested in the Secretary by section 204(b)
of the Federal Railroad Safety Act of 1970 (84 Stat. 972, 45 U.S.C.
433(b)) with respect to the laws administered by the Federal Highway
Administrator pertaining to highway safety and highway construction.
(p) Carry out the functions vested in the Secretary provided by 42
U.S.C. 4917 relating to procedures for the inspection, surveillance and
measurement of commercial motor vehicles for compliance with interstate
motor carrier noise emission standards and related enforcement
activities including the promulgation of necessary regulations.
(q) Carry out the functions vested in the Secretary by section 5 (as
it relates to bridges, other than railroad bridges, not over navigable
waters), and section 8(a) (as it relates to all bridges other than
railroad bridges) of the International Bridge Act of 1972 (Pub. L.
92-434, 86 Stat. 731).
(r) Carry out the functions vested in the Secretary by the following
sections of the Urban Mass Transportation Act of 1964 as amended (78
Stat. 302, 49 U.S.C. 1601 et seq.):
(1) Sections 3(a)(3), 3(e)(1), 5(g)(1), and 8 as they relate to urban
planning (49 U.S.C. 1602 (a)(3) and (e)(1), 1603(a), and 1604(g)(1);
and 1604(l)).
(2) Section 12(c)(11) relating to approval of boundaries of urbanized
areas (49 U.S.C. 1608(c)(11));
(3) Section 18 as it relates to the formula grant program for
non-urbanized areas in the Commonwealth of Puerto Rico.
(s) Exercise the authority vested in the Secretary by sections 101,
118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974
(Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).
(t) (Reserved)
(u)(1) Carry out the functions vested in the Secretary by 49 App.
U.S.C. 1808 (a), (b), and (c), 1809, and 1810 relating to
investigations, records, inspections, penalties, and specific relief so
far as they apply to the transportation or shipment of hazardous
materials by highway, including the manufacture, fabrication, marking,
maintenance, reconditioning, repair or test of containers which are
represented, marked, certified, or sold for use in the bulk
transportation of hazardous materials by highway.
(2) Carry out the functions vested in the Secretary by 49 App.
U.S.C. 1804 (b) and (c); 1805(d), except paragraph (3) (49 App. U.S.C.
1805(d)(3)); 1811 relating to highway routing, except for pending
applications for inconsistency rulings and nonpreemption determinations;
1813(d); and 1819.
(v) Carry out the functions vested in the Secretary by the Commercial
Motor Vehicle Safety Act of 1986, title XII of Public Law 99-570, 100
Stat. 3207-170.
(w) Cary out the functions vested in the Secretary by section 30 of
the Motor Carrier Act of 1980 (Pub. L. 96-296, 94 Stat. 820), as amended
by section 108(b)(5) of Public Law 96-510, 94 Stat. 2767; section 406
of Public Law 97-424, 96 Stat. 2158; and section 222 of Public Law
98-554, 98 Stat. 2846 (49 U.S.C. 10927 note).
(x) Carry out the functions vested in the Secretary by sections 4(a)
and (5)(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237,
August 20, 1981) (delegating sections 107(c)(1)(C) and 108(b),
respectively, of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, Public Law 96-510, 94 Stat. 2781), insofar
as they relate to motor carriers.
(y) Carry out the functions vested in the Secretary by section 118 of
the National Visitor Center Facilities Act of 1968 (Pub. L. 90-264, 82
Stat. 43), as added by the Union Station Redevelopment Act of 1981 (Pub.
L. 97-125; 95 Stat. 1672), with respect to the completion of the
parking facility and associated ramps at Union Station in Washington,
D.C. (40 U.S.C. 818).
(z) Carry out the functions vested in the Secretary by sections 18
and 25(c) of the Bus Regulatory Reform Act of 1982 (Pub. L. 97-261, 96
Stat. 1102), as amended by section 224 of Public Law 98-554, 98 Stat.
2847 (49 U.S.C. 10927 note).
(aa) Carry out the functions vested in the Secretary by the Tandem
Truck and Motor Carrier Safety Acts of 1984 (Pub. L. 98-554), except
section 209.
(bb) Carry out the functions vested in the Secretary by Pub. L.
98-229, 98 Stat. 55, insofar as it relates to apportioning certain
funds for construction of the Interstate Highway System in Fiscal Year
1985, apportioning certain funds for Interstate substitute highway
projects, and increasing amounts available for emergency highway relief.
(cc) Prescribe regulations, as necessary, at parts 24 and 25 of this
title, to implement Public Law 91-646, 84 Stat. 1894, and any
amendments thereto, as appropriate, in coordination with the Assistant
Secretary for Policy and International Affairs, and carry out all other
functions vested in the Secretary by the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970, Public Law 91-646,
84 Stat. 1894, and any amendments thereto.
(dd) -- (ee) (Reserved)
(ff) Carry out the functions vested in the Secretary of
Transportation by section 114 of the ''Act Making Continuing
Appropriations for Fiscal Year 1987 and for Other Purposes,'' Public Law
99-591, October 30, 1986, relating to construction of Interstate Highway
H-3 in Hawaii.
(gg) Carry out all of the functions vested in the Secretary under
section 324 of the Fiscal Year 1986 Department of Transportation
Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the
reservation of authority under 1.44(j) of this part.
(hh) Carry out the functions vested in the Secretary by sections 9,
10, 11, 12, 13, 15(b), 15(c), 15(d), and 15(e) of the Sanitary Food
Transportation Act of 1990 (Pub. L. 101-500; 104 Stat. 1213), with
respect to transportation by highway.
(ii) Carry out the functions vested in the Secretary by sections 16,
23, 24, and 27 of the Hazardous Materials Transportation Uniform Safety
Act of 1990 (Pub. L. 101-615; 104 Stat. 3244 (49 App. U.S.C. 1813
note; 49 U.S.C. 10927 note; 49 App. U.S.C. 2509).
(49 U.S.C. 322, 49 CFR 1.57(l))
(Amdt. 1-157, 45 FR 83405, Dec. 18, 1980)
Editorial Note: For Federal Register citations affecting 1.48, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
49 CFR 1.49 Delegations to Federal Railroad Administrator.
The Federal Railroad Administrator is delegated authority to:
(a) Investigate and report on safety compliance records of applicants
seeking railroad operating authority from the Interstate Commerce
Commission, and to intervene and present evidence concerning applicants'
fitness in Commission proceedings under 49 U.S.C. 1653(e), relating to
railroads.
(b) Carry out the Act of September 30, 1965, as amended (79 Stat.
893, 49 U.S.C. 1631 et seq.), relating generally to high speed ground
transportation, except issuance of reports required by section 13(c) (49
U.S.C. 1643(c)).
(c) Carry out the following laws relating generally to safety
appliances and equipment on railroad engines and cars, and protection of
employees and travelers:
(1) The Act of March 2, 1893, as amended (27 Stat. 531, 45 U.S.C. 1
et seq.);
(2) The Act of March 2, 1903, as amended (32 Stat. 943, 45 U.S.C. 8
et seq.);
(3) The Act of April 14, 1910, as amended (36 Stat. 298, 45 U.S.C.
11 et seq.);
(4) The Act of May 30, 1908, as amended (35 Stat. 476, 45 U.S.C. 17
et seq.);
(5) The Act of February 17, 1911, as amended (36 Stat. 913, 45 U.S.C.
22 et seq.);
(6) The Act of March 4, 1915, as amended (38 Stat. 1192, 45 U.S.C.
30);
(7) Reorganization Plan No. 3 of 1965 (79 Stat. 1320, 45 U.S.C. 22
note);
(8) Joint Resolution of June 30, 1906, as amended (34 Stat. 838, 45
U.S.C. 35);
(9) The Act of May 27, 1908, as amended (35 Stat. 325, 45 U.S.C. 36
et seq.);
(10) The Act of March 4, 1909, as amended (35 Stat. 965, 45 U.S.C.
37); and
(11) The Act of May 6, 1910, as amended (36 Stat. 350, 45 U.S.C. 38
et seq.).
(d) Carry out the Act of March 4, 1907, as amended (34 Stat. 1415, 45
U.S.C. 61 et seq.), relating generally to hours of service of railroad
employees.
(e) Carry out the functions vested in the Secretary by section 5 of
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to
railroad bridges not over navigable waterways.
(f) Carry out section 25 of the Interstate Commerce Act, as amended
(49 U.S.C. 26), relating generally to railroad safety appliances,
methods, and systems.
(g) Exercise the administrative powers under the Interstate Commerce
Act with respect to powers and duties pertaining to railroad safety
transferred to the Secretary (49 U.S.C. 1655(f)).
(h) Operate and administer the Alaska Railroad under the Act of March
12, 1914, as amended (38 Stat. 305), and Executive Order 11107 (28 FR
4225 (1963)).
(i) Make individual and general changes in freight rates and
passenger fares for the Alaska Railroad, without power to redelegate
authority for general changes in freight rates and passenger fares.
(j) Promote and undertake research and development relating to rail
matters generally (49 U.S.C. 1653(a), 1657(e)(1), 1657(n)(1), and
1657(q)(1)).
(k) Carry out the functions vested in the Secretary by subtitle B of
the National Visitor Center Facilities Act of 1968, as added by the
Union Station Redevelopment Act of 1981 (Pub. L. 97-125; 95 Stat.
1667) except section 114(e) and such parts of section 118 as provided
for the completion of the parking facility and associated ramps at Union
Station in Washington, DC.
(l) Exercise the authority vested in the Secretary by the Emergency
Rail Services Act of 1970 (Pub. L. 91-663) except the authority to make
findings required by section 3(a) of that Act and the authority to sign
guarantees of certificates issued by trustees.
(m) Carry out the functions vested in the Secretary by the Federal
Railroad Safety Act of 1970 (title II of Pub. L. 91-458); 84 Stat.
971, 45 U.S.C. 421 et. seq.), except section 204(b) (84 Stat. 972, 45
U.S.C. 433(b)) with respect to highway, traffic, and motor vehicle
safety and highway construction.
(n) Carry out the functions vested in the Secretary by the Emergency
Rail Facilities Restoration Act of 1972 (Pub. L. 92-591).
(o) Carry out the functions vested in the Secretary by subsection (b)
(except as it relates to conducting consultations with the Administrator
of the Environmental Protection Agency) and (c) of section 17 of the
Noise Control Act of 1972 (Pub. L. 92-574).
(p) Carry out the functions vested in the Secretary by sections
201(i)(3); 202(b)(7); 203, except authority to issue subpoenas; 210;
212; 213; 215; 402; 403; and 601 of the Regional Rail
Reorganization Act of 1973 (Pub. L. 93-236) as amended by the Rail
Transportation Improvement Act (Pub. L. 94-555).
(q) Carry out the functions vested in the Secretary by subsections 4
(h) and (i) of the Department of Transportation Act, as amended (49
U.S.C. 1653(h), (i)).
(r) (Reserved)
(s)(1) Carry out the functions vested in the Secretary by 49 App.
U.S.C. 1808 (a), (b), and (c), 1809, and 1810 relating to
investigations, records, inspections, penalties, and specific relief so
far as they apply to the transportation or shipment of hazardous
materials by railroad, including the manufacture, fabrication, marking,
maintenance, reconditioning, repair or test of containers which are
represented, marked, certified, or sold for use in the bulk
transportation of hazardous materials by railroad.
(2) Carry out the functions vested in the Secretary by 49 App.
U.S.C. 1813 (a) and (b); and 1817.
(t) Carry out the functions vested in the Secretary by sections
204(c); except authority to issue subpoenas; 402; 403; 502; 503;
504; 505; 506, except (c); 507; 508; 511; 512; 513; 515; 517;
606; 610; 703; 704, except (c)(1); and 705; 707; 901; 905, as
applicable, of the Railroad Revitalization and Regulatory Reform Act of
1976, as amended, section 5 of the Department of Transportation Act (49
U.S.C. 1654), except authority to issue subpoenas.
(u) Carry out functions vested in the Secretary by sections 17(a) and
(b) (as they relate to consultations with the Administrator of the
Environmental Protection Agency) of the Noise Control Act of 1972 (Pub.
L. 92-574, 49 U.S.C. 1431).
(v) Carry out the functions vested in the Secretary by the Rock
Island Railroad Transition and Employee Assistance Act (title I of Pub.
L. 96-254) and by section 18 of the Milwaukee Railroad Restructuring Act
(49 U.S.C. 916).
(w) Carry out the functions vested in the Secretary by section 305 of
the Regional Rail Reorganization Act of 1973, as amended (45 U.S.C.
745).
(x) Carry out the functions vested in the Secretary by sections 4(a)
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug.
20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1981, Pub. L. 96-510), insofar as they relate to rolling stock.
(y) Carry out the functions vested in the Secretary by the Northeast
Rail Service Act of 1981 (Pub. L. 97-35).
(z) Carry out the functions vested in the Secretary by section 3 of
the Bridge Act of 1906, as amended (33 U.S.C. 493), relating to disputes
over the terms and compensation for use of railroad bridges built under
the Act.
(aa) Carry out the functions vested in the Secretary by titles II
through VII of the Rail Safety and Service Improvement Act of 1982 (Pub.
L. 97-468), which relates to rail safety, rail finances, and the
transfer of The Alaska Railroad to the State of Alaska.
(bb) Carry out the functions vested in the Secretary by section 4031
of the Budget Reconciliation Act of 1986 (Pub. L. 99-509), which relates
to the abolition of the United States Railway Association, and the
execution of the functions and duties of the Association transferred to
the Secretary, effective April 1, 1987.
(cc) Carry out the functions vested in the Secretary by section 18
(g) and (h) of the Rail Safety Improvement Act of 1988 (Pub. L. No.
100-342).
(dd) Carry out the function vested in the Secretary by section 1163
of the Bankruptcy Code (11 U.S.C. Section 1163), which relates to the
nomination of trustee for rail carriers in reorganization, with the
concurrence of the Office of the General Counsel.
(ee) Carry out the functions vested in the Secretary by sections 9,
10, 11, 12, and 13 of the Sanitary Food Transportation Act of 1990 (Pub.
L. 101-500; 104 Stat. 1213), with respect to transportation by
railroad.
(ff) Exercise the authority vested in the Secretary by the Crime
Control Act of 1990 (Pub. L. 101-647) as it relates to a railroad police
officer's authority to enforce the laws of any jurisdiction in which the
police officer's rail carrier employer owns property.
(gg) Carry out the functions vested in the Secretary by sections 16
and 21 of the Hazardous Materials Transportation Uniform Safety Act of
1990 (Pub. L. 101-615; 104 Stat. 3244 (49 App. U.S.C. 1813 note and
1817 note)).
(hh) Exercise the authority vested in the Secretary by Section 601
(d) and (e) of the National and Community Service Act of 1990 (45 U.S.C.
546 note) as it relates to the discharge of human waste from railroad
passenger cars.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975)
Editorial Note: For Federal Register citations affecting 1.49, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
49 CFR 1.50 Delegation to the National Highway Traffic Safety
Administrator.
The National Highway Traffic Safety Administrator is delegated
authority to:
(a) Carry out the National Traffic and Motor Vehicle Safety Act of
1966, as amended (15 U.S.C. 1381 et seq.).
(b) Carry out the Highway Safety Act of 1966, as amended (23 U.S.C.
401 et seq.), except for highway safety programs, research and
development relating to highway design, construction and maintenance,
traffic control devices, identification and surveillance of accident
locations, and highway-related aspects of pedestrian and bicycle safety.
(c) Exercise the authority vested in the Secretary by section 210(2)
of the Clean Air Act, as amended (42 U.S.C. 7544(2)).
(d) Exercise the authority vested in the Secretary by section 204(b)
of the Federal Railroad Safety Act of 1970 (45 U.S.C. 433(b)) with
respect to laws administered by the National Highway Traffic Safety
Administrator pertaining to highway, traffic and motor vehicle safety.
(e) Carry out the Act of July 14, 1960, as amended (23 U.S.C. 313
note) and the National Driver Register Act of 1982 (23 U.S.C. 401 note).
(f) Carry out the functions vested in the Secretary by the Motor
Vehicle Information and Cost Savings Act of 1972, as amended (15 U.S.C.
1901 et seq.), except section 512.
(g) Administer the following sections of title 23, United States
Code, with the concurrence of the Federal Highway Administrator:
(1) 141, as it relates to certification of the enforcement of speed
limits;
(2) 154 (a), (b), (d), (e), (f), (g) and (h); and
(3) 158.
(h) Carry out the consultation functions vested in the Secretary by
Executive Order 11912, as amended.
(i) Carry out section 209 of the Surface Transportation Assistance
Act of 1978, as amended (23 U.S.C. 401 note) and section 165 of the
Surface Transportation Assistance Act of 1982, as amended (23 U.S.C.
101 note), with respect to matters within the primary responsibility of
the National Highway Traffic Safety Administrator.
(j) Administer section 414(b)(1) of the Surface Transportation
Assistance Act of 1982, as amended (49 U.S.C. 2314) with the concurrence
of the Federal Highway Administrator, and section 414(b)(2).
(k) Carry out section 2(c) of the Truth in Mileage Act of 1986 (15
U.S.C. 1988 note).
(l) Carry out section 204(b) of the Surface Transportation and
Uniform Relocation Assistance Act of 1987, Public Law 100-17 (101 Stat.
132) with the coordination of the Federal Highway Administrator.
(m) Carry out the functions vested in the Secretary by section 15(f)
of the Sanitary Food Transportation Act of 1990 (Pub. L. 101-500; 104
Stat. 1213).
(Amdt. 1-226, 53 FR 23122, June 20, 1988, as amended by Amdt. 1-239,
56 FR 6810, Feb. 20, 1991)
49 CFR 1.51 Delegations to Urban Mass Transportation Administrator.
The Urban Mass Transportation Administrator is delegated authority to
exercise the functions vested in the Secretary by:
(a) The Urban Mass Transportation Act of 1964, as amended (78 Stat.
302, 49 U.S.C. 1601 et seq.), except section 18 as it relates to the
formula grant program for non-urbanized areas in the Commonwealth of
Puerto Rico and section 22, relating to intercity bus service.
(b) Section 1 of Reorganization Plan No. 2 of 1968 (84 Stat. 1369).
(c) Section 10 of the Urban Mass Transportation Assistance Act of
1970, Public Law 91-453, 84 Stat. 962, 968).
(d) Sections 3 and 9 through 15 of the National Capital
Transportation Assistance Act of 1969, as amended (D.C. Code, 1-2441 et
seq).
(e) The following sections of title 23, United States Code:
(1) 103 as it involves the withdrawal of Interstate routes and the
substitution of non-highway public mass transit projects authorized by
subsection (e)(4);
(2) 101(a) as it involves approval of boundaries of urban and
urbanized areas, 104(f)(4), 105(d), 106(b) as it involves the
Federal-aid urban system, and 134; and
(3) 101 (b), (c), (d), and (e); 105 (a) and (g); 106 (a), (c) and
(d); 108; 109 (a), (g), and (h); 110; 112; 113; 114; 116 (a) and
(c); 117; 121; 122; 124; 128; 140(a); 142; and 145 as they
involve mass transportation projects authorized by sections 103(e)(4),
142(a)(2), or 142(c).
(f) Sections 140, 146, 147, 164 and 165 of the Federal-Aid Highway
Act of 1973, as amended (Pub. L. 93-87, title I, 87 Stat. 250; Pub. L.
93-643, 88 Stat. 2281).
(g) Section 813 of the Housing and Community Development Act of 1974
(Pub. L. 93-383).
(h) Section 107 of the National Mass Transportation Assistance Act of
1974 (Pub. L. 93-503, November 26, 1974).
(i) Title II of the National Mass Transportation Assistance Act of
1974 (Pub. L. 93-503, November 26, 1974), except sections 204 and 205.
(j) Sections 804, insofar as it relates to 45 U.S.C. 744(e)(5); and
805, as applicable, of the Railroad Revitalization and Regulatory Reform
Act of 1976 (Pub. L. 94-210).
(k) Section 148 of the Federal-Aid Highway Act of 1976 (Pub. L.
94-280, 90 Stat. 425).
(l) The following sections of the Surface Transportation Assistance
Act of 1978 (Pub. L. 95-599, 92 Stat. 2689): 155, 316, 320, and title
IV, as amended (as it relates to matters within the primary
responsibility of the Urban Mass Transportation Administrator).
(m) Section 601(d) of the Rail Passenger Service Act, as amended.
(n) Section 2 of Public Law 98-229, 98 Stat. 55, insofar as it
relates to apportioning certain funds for Interstate substitute transit
projects.
(Amdt. 1-157, 45 FR 83408, Dec. 18, 1980, as amended by Amdt. 1-168,
47 FR 16632, Apr. 19, 1982; Amdt. 1-180, 48 FR 15476, Apr. 11, 1983;
Amdt. 1-187, 48 FR 52678, Nov. 21, 1983; Amdt. 1-191, 49 FR 6908, Feb.
24, 1984; Amdt. 1-203, 50 FR 30275, July 25, 1985)
49 CFR 1.52 Delegations to Saint Lawrence Seaway Development
Corporation Administrator.
The Administrator of the Saint Lawrence Seaway Development
Corporation is delegated authority to:
(a) Carry out the functions vested in the Secretary by sections 4, 5,
6, 7, 8, 12 and 13 of section 2 of the Port and Tanker Safety Act of
1978 (92 Stat. 1471) as they relate to the operation of the St.
Lawrence Seaway.
(b) Carry out the functions vested in the Secretary by section 5 of
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to
the St. Lawrence River.
(c) Carry out the functions vested in the Secretary by section 3(d)
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it
relates to ships owned or operated by the Corporation when engaged in
noncommercial service.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by 45 FR 48630,
July 21, 1980; Amdt. 1-167, 47 FR 11677, Mar. 18, 1982)
49 CFR 1.53 Delegations to the Administrator of the Research and
Special Programs Administration.
Administration. The Administrator of the Research and Special
Programs Administration is delegated authority to exercise powers and
perform duties, including duties under the specified statutes as
follows:
(a) Pipelines. (1) Natural Gas Pipeline Safety Act of 1968, as
amended (49 U.S.C. 1671 et seq.).
(2) Mineral Leasing Act, as amended (Pub. L. 93-153, 30 U.S.C. 185).
(3) Deepwater Port Act of 1974 (Pub. L. 93-627, 33 U.S.C. 1501 et
seq.) relating to the establishment, enforcement and review of
regulations concerning the safe construction, operation or maintenance
of pipelines on Federal lands and the Outer Continental Shelf (33 U.S.C.
1520).
(4) Section 5 of the International Bridge Act of 1972 (Pub. L.
92-434, 33 U.S.C. 535) as it relates to pipelines not over navigable
waterways.
(5) Hazardous Liquid Pipeline Safety Act of 1979, as amended (49
U.S.C. 2001 et seq.).
(6) Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) as
amended, with respect to establishment, enforcement and review of
regulations concerning pipeline safety.
(7) Sections 4(a) and 5(c) of Executive Order 12316 of August 14,
1981 (46 FR 42237, August 20, 1981) (delegating sections 107(c)(1)(c)
and 108(b), respectively, of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1981, Pub. L. 96-510), insofar as
they relate to pipelines.
(8) Section 7005 of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as it relates to pipeline safety user fees.
(b) Hazardous materials. (1) Sections 101-121 of the Hazardous
Materials Transportation Act of 1975 (49 App. U.S.C. 1801-1819), as
amended by the Hazardous Materials Transportation Uniform Safety Act of
1990 (104 Stat. 3244), except as delegated by 1.46(t), 1.47(j),
1.48(u)(2), and 1.49(s)(2), and except that the enforcement activities
of the Research and Special Programs Administration (RSPA) shall be
limited to any matter relating to or concerning any of the following:
(i) Any violation of an exemption or approval issued under that Act;
(ii) Any violation of any requirement for a telephonic or written
report of a hazardous materials incident or any other reporting
requirement imposed under that Act;
(iii) Any manufacture, fabrication, marking, maintenance,
reconditioning, repair, testing, or retesting of any packaging, except
modal-specific bulk packaging, which is represented, marked, certified,
or sold for use in the transportation of hazardous materials, including
any United Nations standard or DOT specification or exemption packaging;
(iv) Any manufacture, fabrication, marking, maintenance,
reconditioning, repair, testing, or retesting of any modal-specific bulk
packaging, which is represented, marked, certified, or sold for use in
the transportation of hazardous materials, including any United Nations
standard or DOT specification or exemption packaging, only when
requested by the modal administration with primary responsibility for
such activity;
(v) Any carrier of hazardous materials only when requested by the
modal administration with primary responsibility for inspecting such
carrier;
(vi) Any offeror of any hazardous material for transportation with
respect to its offering of any hazardous material for transportation in:
(A) Any modal-specific bulk packaging only when requested by the
modal administration with primary responsibility for inspecting such
packaging; or
(B) Any other packaging.
This delegation to the Administrator of RSPA does not limit the
enforcement authority of the Administrators of FHWA, FRA, and FAA, and
the Commandant of the Coast Guard under the Hazardous Materials
Transportation Act, as amended. Those agencies have enforcement
authority over all aspects of the transportation or shipment of
hazardous materials by their respective modes, including the
manufacture, fabrication, marking, maintenance, reconditioning, repair,
testing, or retesting of any bulk packaging intended or represented as
intended for use in the transportation of hazardous materials by their
respective modes.
(2) Serves as the Department's point of contact and consults with the
Environmental Protection Agency on matters arising under section 3003 of
the Resources Conservation and Recovery Act (42 U.S.C. 6923) and section
9 of the Toxic Substances Control Act (15 U.S.C. 2608).
(3) Sections 601(c) and 902(h)(1) of the Federal Aviation Act of
1958, as amended (49 U.S.C. 1421 and 1472(h)(1), respectively), as they
relate to regulations governing the transportation of hazardous
materials by air.
(4) Section 16, 25, 26, and 29 of the Hazardous Materials
Transportation Uniform Safety Act of 1990 (Pub. L. 101-615; 104 Stat.
3244 (49 app. U.S.C. 1813 note, 1804 note; 29 U.S.C. 655 note)).
(c) Passenger and cargo security. (1) Serve as the Department's
point of contact in relationships with Government, state, regional,
local and private groups and organizations in matters relative to the
Department-wide program for enhancing the safety and security of
passengers and cargo in transit.
(d) Intermodal transport. (1) Section 4(e) of the International Safe
Container Act (Pub. L. 95-208, 91 Stat. 1475).
(e) Emergency preparedness. Carry out the functions related to
emergency preparedness vested in the Secretary by 49 U.S.C. 101 and 301
or delegated to the Secretary by or through the Defense Production Act
of 1950, 50 U.S.C. App. 2061 et seq.; Executive Order 10480, as amended;
Executive Order 12148; Executive Order 12656; Executive Order 12742;
Reorganization Plan No. 3 of 1978; and such other statutes, executive
orders, and other directives as may pertain to emergency preparedness.
(f) Working Capital Fund for Financing the Activities of the
Transportation Systems Center. (1) Section 207 of Pub. L. 96-254 (49
U.S.C. 1657(r)), authorizing the Secretary to establish a working
capital fund for financing the activities of the Transportation Systems
Center.
(g) Aviation information. (1) 49 U.S.C. 329(b)(1), relating to
collection and dissemination of information on civil aeronautics;
(2) Section 4(a)(7) of the Civil Aeronautics Board Sunset Act of 1984
(October 4, 1984; Pub. L. 98-443), relating to the extension of
unsecured credit to political candidates; and
(3) Sections 204 (relating to taking such actions and issuing such
regulations as may be necessary to carry out responsibilities under the
Act), 404 (relating to enforcing the duty of carriers to provide safe
and adequate service), 407 (a) and (d) (relating to requiring the
keeping of information and the forms in which it is to be kept), and 416
(relating to establishing just and reasonable classifications of
carriers and rules to be followed by each) of the Federal Aviation Act
of 1958, as amended, (49 U.S.C. 1324, 1374, 1377 (a) and (d), and 1386)
as appropriate to carrying out the responsibilities under this
paragraph.
(h) Science and technology. (1) With respect to scientific and
technological matters, serve as principal advisor to the Secretary and
representative of the Department to the academic community, the private
sector, professional organizations, and other Government agencies.
(2) Serve as principal liaison official for the Department of
Transportation with the Office of Science and Technology Policy in the
Executive Office of the President.
(3) Serve as Chairperson of the Department of Transportation's
Research and Development Coordinating Council.
(4) Serve as Chairperson of the Department of Transportation
Navigation Council.
(5) Serve as primary official responsible for coordination and
oversight of the Department's implementation of section 2 of the Federal
Technology Transfer Act of 1986, (Pub. L. No. 99-502; 15 U.S.C. 3710a),
relating to the transfer of Federal technology to the marketplace.
(i) Carry out the functions vested in the Secretary by sections 4, 5,
6, 7, and 8 of the Sanitary Food Transportation Act of 1990 (Pub. L.
101-500; 104 Stat. 1213).
(j) Section 8 of the Independent Safety Board Act Amendments of 1990
(Pub. L. 101-641; 104 Stat. 4654 (49 app. U.S.C. 1804 note)).
(Amdt. 1-130, 43 FR 5516, Feb. 9, 1978, as amended by Amdt. 1-136, 43
FR 17360, Apr. 24, 1978; Amdt. 1-137, 44 FR 2395, Jan. 11, 1979; Amdt.
1-153, 45 FR 14576, Mar. 6, 1980; Amdt. 1-158, 46 FR 10919, Feb. 5,
1981; Amdt. 1-166, 46 FR 63294, Dec. 31, 1981; Amdt. 1-196, 49 FR
31290, Aug. 6, 1984; Amdt. 1-199, 49 FR 50996, Dec. 31, 1984; Amdt
1-234, 55 FR 40662, Oct. 4, 1990; Amdt. 1-234, 55 FR 47165, Nov. 9,
1990; Amdt. 1-239, 56 FR 6811, Feb. 20, 1991; Amdt. 1-242, 56 FR
18526, Apr. 23, 1991; Amdt. 1-245, 56 FR 31346, July 10, 1991)
49 CFR 1.54 Delegations to all Secretarial Officers.
(a) This section sets forth general delegations to the Deputy
Secretary, the Deputy Under Secretary, the General Counsel, the
Inspector General and the Assistant Secretaries.
(b) Each officer named in paragraph (a) of this section is delegated
authority to:
(1) Redelegate and authorize successive redelegations of authority
granted by the Secretary within their respective organizations, except
as limited by law or specific administrative reservation, including
authority to publish those redelegations in appendix A of this part.
(2) Authorize and approve official travel (except foreign travel) and
transportation for themselves, their subordinates, and others performing
services for, or in cooperation with, the Office of the Secretary. This
authority may be redelegated in accordance with regulations issued by
the Assistant Secretary for Administration.
(3) Communicate directly with chairmen of Field Coordination Groups
provided such communications are largely informational in character and
do not conflict with program responsibilities of the operating
administrations.
(4) Establish ad hoc committees for specific tasks within their
assigned staff area.
(5) Establish, modify, extend, or terminate standing committees
within their specific areas of responsibility when directed or
authorized to do so by the Secretary.
(6) Designate members of interagency committees when such committees
are specifically concerned with responsibilities of direct interest to
their office.
(7) Exercise the following authorities with respect to executive
level positions (GS-16, 17, or 18 or equivalent) within their respective
areas of responsibility:
(i) Determine how executive level positions will be filled; i.e., by
reassignment, promotion, appointment.
(ii) Establish selection criteria to be used in identifying eligible
candidates.
(iii) Confer with the Administrators on selection criteria and
candidates for an executive level position that is a counterpart of an
activity or position in the Office of the Secretary.
(iv) Recommend final selection for executive level positions, subject
to review by the Executive Committee of the Departmental Executive
Personnel Board and approval by the Secretary and the Civil Service
Commission.
(v) Serve as ad hoc member of the Departmental Executive Personnel
Board at the call of the Chairman and serve on the Board's Executive
Committee whenever matters involving their respective offices or a
functional counterpart thereof in an operating administration are
presented to the Executive Committee for its consideration.
(8) Enter into inter- and intra-departmental reimbursable agreements
other than with the head of another department or agency (31 U.S.C.
686). This authority may be redelegated only to office directors or
other comparable levels and to contracting officers.
(9) Administer and perform the functions described in their
respective functional statements.
(10) Exercise the authority of the Secretary to make certifications,
findings and determinations under the Regulatory Flexibility Act (Pub.
L. 96-354) with regard to any rulemaking document for which issuance
authority is delegated by other sections in this part. This authority
may be redelegated to those officials to whom document issuance
authority has been delegated.
(49 U.S.C. 1657(e)(1))
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-114, 41 FR 1288, Jan. 7, 1976; Amdt. 1-157, 45 FR 83408, Dec. 18,
1980; Amdt. 1-159, 46 FR 22593, Apr. 20, 1981)
49 CFR 1.55 Delegations to Deputy Secretary.
The Deputy Secretary may exercise the authority of the Secretary
except where specifically limited by law, order, regulations, or
instructions of the Secretary. In addition, the Deputy Secretary is
delegated authority to:
(a) Exercise executive control over the Departmental
Planning-Programming-Budgeting System.
(b) Serve as Chairman of the Departmental Executive Personnel Board
and its Executive Committee.
(c) Originate direct correspondence to chairmen of Field Coordination
Groups on overall Departmental matters.
(d) Approve the establishment, modification, extension, or
termination of:
(1) Department-wide (intra-department) committees affecting more than
one program.
(2) OST-sponsored interagency committees.
(3) All advisory committees (including industry advisory committees)
except those sponsored by field activities of the operating
administrations.
(e) Approve the designation of:
(1) Departmental representatives and the chairman for interagency
committees sponsored by the Office of the Secretary.
(2) Departmental representatives on all advisory committees except
those sponsored by a field component of one of the operating
administrations or the Materials Transportation Bureau.
(3) Departmental members for international committees.
(f) Authorize and approve official travel and transportation for
self, subordinates, and others performing services for or in cooperation
with the Office of the Secretary; and authorize and approve official
foreign travel of all Departmental personnel and others performing
travel for the Department.
(g) Serve as the representative of the Secretary on the board of
directors of the National Railroad Passenger Corporation and carry out
the functions vested in the Secretary as a member of the board by
section 303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).
(h) Serve as the representative of the Secretary as incorporator,
member of the acting board of directors, member of the board of
directors, and member of the executive committee of the board of
directors, of the United States Railway Association and when so serving
carry out the functions vested in the Secretary in each capacity by
title II of the Regional Rail Reorganization Act of 1973 (Pub. L.
93-236), as amended.
(i) Serve as the representative of the Secretary as incorporator,
member of the interim board of directors established by section 301(c)
of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-236), and
member of the board of directors, of the Consolidated Rail Corporation
and when so serving carry out the functions vested in the Secretary in
each capacity by title III of the Regional Rail Reorganization Act of
1973 (Pub. L. 93-236).
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-114, 41 FR 1288, Jan. 7, 1976; Amdt. 1-116, 41 FR 20680, May 20,
1976; Amdt. 1-126, 41 FR 56327, Dec. 28, 1976; Amdt. 1-157, 45 FR
83408, Dec. 18, 1980; Amdt. 1-165, 46 FR 55266, Nov. 9, 1981)
49 CFR 1.56 Delegations to Assistant Secretary for Policy and
International Affairs.
The Assistant Secretary for Policy and International Affairs is
delegated authority to:
(a) Establish policy and maintain oversight of implementation of the
National Environmental Policy Act of 1969, as amended (42 U.S.C.
4321-4327) within the Department of Transportation.
(b) Oversee the implementation of section 4(f) of the Department of
Transportation Act of 1969 (49 U.S.C. 1653) and concur in determinations
under section 4(f) for certain major project actions.
(c) Represent the Secretary of Transportation on various interagency
boards, committees, and commissions, to include: Architectural and
Transportation Barriers Compliance Board; Advisory Council on Historic
Preservation; Migratory Bird Conservation Commission; National Highway
Safety Advisory Committee; Interagency Committee on Emergency Medical
Services; the Federal Council on the Arts and the Humanities; and the
Trade Policy Review Group.
(d) Except with respect to proceedings under section 4(e) of the
Department of Transportation Act (80 Stat. 934) relating to safety
fitness of an applicant, decide on requests to intervene or appear
before administrative agencies to present the views of the Department
subject to concurrence by the General Counsel.
(e) Carry out the functions of the Secretary pertaining to aircraft
with respect to Transportation Orders T-1 and T-2 (32A CFR, chapter VII)
under the Act of September 8, 1950, as amended (64 Stat. 798, 50 U.S.C.
App. 2061 et seq.) and Executive Order 10480.
(f) Serve as Department of Transportation member of the Interagency
Group on International Aviation and, pursuant to Executive Order 11382,
serve as Chair of the Group.
(g) Serve as second alternate representing the Secretary of
Transportation to the Water Resources Council, as mandated under the
Department of Transportation Act of 1966, Pub. L. 89-670 and to the
Trade Policy Committee as mandated by Reorganization Plan 3 of 1979 and
Executive Order 12188.
(h) Carry out the functions vested in the Secretary by section 656 of
the Department of Energy Organization Act which pertains to planning and
implementing energy conservation matters with the Department of Energy.
Serves as the Department's principal conservation officer.
(i) As supplemented by 14 CFR part 385, as limited below, and except
as provided in 1.53(g), 1.57a, and 1.61(d) of this title, carry out
the functions transferred to the Department from the Civil Aeronautics
Board under the following statutes:
(1) 49 U.S.C. 1551(b); and
(2) Section 4(a) (1) through (4), (6), and (8) through (10) of the
Civil Aeronautics Board Sunset Act of 1984 (Pub. L. 98-443; October 4,
1984).
Insofar as this delegation authorizes review of decisions of the
Designated Senior Career Official in the Office of the Assistant
Secretary for Policy and International Affairs under 1.56a of this
title, the authority is limited to approving any such decision or
remanding it for reconsideration by the Designated Senior Career
Official, with a full written explanation of the basis for the remand.
(j) Carry out the functions vested in the Secretary by:
(1) The following subsections of section 1115 of the Federal Aviation
Act of 1958, as amended, which relates to the security of foreign
airports: Subsection 1115(e)(1), in coordination with the General
Counsel and the Federal Aviation Administrator; and paragraph
1115(e)(3), in coordination with the General Counsel, the Federal
Aviation Administrator, the Assistant Secretary for Governmental
Affairs, and the Assistant Secretary for Administration.
(2) Carry out the following statutory provisions relating to consumer
protection:
(i) Section 4(a)(5) of the Civil Aeronautics Board Sunset Act of 1984
(October 4, 1984; Pub. L. 98-443), relating to enforcement of the
Consumer Credit Protection Act;
(ii) Sections 101(3) (relating to relieving certain carriers from
provisions of the Federal Aviation Act), 204 (relating to taking such
actions and issuing such regulations as may be necessary to carry out
responsibilities under the Act), 404 (relating to enforcing the duty of
carriers to provide safe and adequate service), 407(a) (relating to
requiring the production of information, entering carrier property, and
inspecting records), 411 (relating to determining whether any carrier or
ticket agent is engaged in unfair or deceptive practices or unfair
methods of competition), and 416 (relating to establishing just and
reasonable classifications of carriers and rules to be followed by each)
of the Federal Aviation Act of 1958, as amended, (49 U.S.C. 1301(3),
1324, 1374, 1377 (a) and (e), 1381, and 1386) as appropriate to the
consumer protection functions in this paragraph.
(k) Carry out the functions vested in the Secretary of Transportation
by 49 U.S.C. 1607c (section 314 of the ''Surface Transportation and
Uniform Relocation Assistance Act of 1987'', Pub. L. 100-17, April 2,
1987), relating to the Transportation Centers Grant Program, with
concurrence of the Deputy Secretary.
(Amdt. 1-157, 45 FR 83408, Dec. 18, 1980, as amended by Amdt. 1-199,
49 FR 50996, Dec. 31, 1984; Amdt. 1-205, 50 FR 52468, Dec. 24, 1985;
Amdt. 1-208, 51 FR 20831, June 9, 1986; Amdt. 1-213, 51 FR 34219, Sept.
26, 1986; Amdt. 1-219, 52 FR 30688, Aug. 17, 1987)
49 CFR 1.56a Delegations to the Designated Senior Career Official,
Office of the Assistant Secretary for Policy and International Affairs.
The Designated Senior Career Official in the Office of the Assistant
Secretary for Policy and International Affairs is delegated exclusive
authority to make decisions in all hearing cases to select a carrier for
limited-designation international route authority, and in any other case
that the Secretary designates, under the authority transferred to the
Department from the Civil Aeronautics Board described in 1.56(i) and
1.61(d) of this title; this includes the authority to adopt, reject, or
modify recommended decisions of adminstrative law judges.
(Amdt. 1-199, 49 FR 50996, Dec. 31, 1984)
49 CFR 1.57 Delegations to General Counsel.
The General Counsel is delegated authority to:
(a) Conduct all rule-making proceedings, except the issuance of final
rules, under specific laws relating generally to standard time zones and
daylight saving (advanced standard) time.
(b) Determine the practicability of applying the standard time of any
standard time zone to the movements of any common carrier engaged in
interstate or foreign commerce and issue operating exceptions in any
case in which the General Counsel determines that it is impractical to
apply the standard time.
(c) Provide and coordinate the Department's counseling service to
employees on questions of conflict of interest and other matters of
legal import covered by Departmental regulations on employee
responsibility and conduct. Assure that counseling and interpretations
on these matters are available to designated Deputy Counselors of the
Department. Serve as the Department's designee to the Civil Service
Commission on these matters.
(d) Serve as the alternate representative of the Secretary on the
Board of Directors of the National Railroad Passenger Corporation when
so designated by the Secretary or Deputy Secretary and carry out the
functions vested in the Secretary as a member of the board by section
303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).
(e) Review and take final action on referrals of the findings of the
Board for Correction of Military Records of the Coast Guard (except with
respect to those matters on which the Secretary's authority to take
final action is exercised by the Board pursuant to 33 CFR 52.35-15) and
the Coast Guard Discharge Review Board.
(f) Approve vacation of suspension of dismissal of military personnel
(10 U.S.C. 872(b)).
(g) Grant permission, under specific circumstances, to deviate from a
policy or procedure prescribed by part 9 of the regulations of the
Office of the Secretary (part 9 of this subtitle) with respect to
testimony of OST employees as witnesses in legal proceedings, the
serving of legal process and pleadings in legal proceedings involving
the Secretary or his Office, and the production of records of that
Office pursuant to subpoena.
(h) Prepare proposed Executive orders and proclamations (including
transmittal documents), effect appropriate Departmental coordination,
and determine whether the transmittal to the Office of Management and
Budget should be submitted over the Secretary's signature or the General
Counsel's.
(i) Emboss and affix the official Departmental seal to appropriate
documents and other materials, for all purposes for which authentication
by seal is required.
(j) Except with respect to proceedings under section 4(e) of the
Department of Transportation Act (80 Stat. 934) relating to safety
fitness of an applicant, decide on requests to intervene or appear
before courts or agencies to present the views of the Department,
subject to the concurrence of other interested staff elements in the
Office of the Secretary.
(k) Exercise the authority delegated to the Department by the
Assistant Attorney General, Land and Natural Resources Division, in his
order of October 2, 1970, to approve the sufficiency of the title to
land being acquired by purchase or condemnation by the United States for
the use of the Department. Redelegation and successive redelegations of
this authority may only be made to attorneys within the Department.
(l) Issue regulations making editorial changes or corrections in the
Regulations of the Office of the Secretary.
(m) Review and take final action on applications for reconsideration
of initial decisions not to disclose unclassified records of the Office
of the Secretary requested under 5 U.S.C. 552(a)(3).
(n) Consider, ascertain, adjust, determine, compromise, and settle
for an amount not exceeding $25,000, any tort claim arising from the
activities of any employee of the Office of the Secretary. Request the
approval of the Attorney General for any such award, compromise, or
settlement in excess of $25,000 (28 U.S.C. 2672).
(o) Conduct coordination with foreign governments under section 118
of the Deep Seabed Hard Mineral Resources Act (June 21, 1980).
(p) Grant or deny petitions for extension of time to file a document
under part 202 of title 46.
(q) (Reserved)
(r) Exercise the review authority delegated to the Secretary by the
President in Executive Order 12597 of May 13, 1987.
(10 U.S.C. 1552; 49 U.S.C. 1655(b); 49 U.S.C. 322; 49 CFR 1.57(l))
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975)
Editorial Note: For Federal Register citations affecting 1.57, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
49 CFR 1.57a Delegations to the Deputy General Counsel.
The Deputy General Counsel is delegated authority to appear on behalf
of the Department on the record in hearing cases, and to initiate and
carry out enforcement actions on behalf of the Department, under the
authority transferred to the Department from the Civil Aeronautics Board
as described in 1.56(i) and 1.61(d) of this title. This includes the
authority to compromise penalties under 49 U.S.C. 1471(a)(1); to issue
appropriate orders, including cease and desist orders, under 49 U.S.C.
1482(c); to require the production of information and enter carrier
property and inspect records under 49 U.S.C. 1377 (a) and (e), and to
inquire into the management of the business of a carrier under 49 U.S.C.
1385, as appropriate to these responsibilities. In carrying out these
functions, the Deputy General Counsel is not subject to the supervision
of the General Counsel.
(Amdt. 1-212, 51 FR 32320, Sept. 11, 1986)
49 CFR 1.57b Delegations to the Associate General Counsel.
Administer 5 U.S.C. 552 and 49 CFR part 7 in connection with the
records of the Office of the Secretary (including the Office of the
Inspector General) and issue procedures to ensure uniform Departmental
implementation of statutes and regulations regarding public access to
records.
(Amdt. 1-228, 54 FR 10010, Mar. 9, 1989)
49 CFR 1.58 Delegations to Assistant Secretary for Budget and Programs.
The Assistant Secretary for Budget and Programs is delegated
authority to:
(a) Exercise day-to-day operating management responsibility over the
Office of Programs and Evaluation and the Office of Budget.
(b) Direct and manage the Departmental planning, evaluation, and
budget activities.
(c) Request apportionment or reapportionment of funds by the Office
of Management and Budget, provided that no request for apportionment or
reapportionment which anticipates the need for a supplemental
appropriation shall be submitted to the Office of Management and Budget
without appropriate certification by the Secretary.
(d) Issue allotments or allocations of funds to components of the
Department.
(e) Authorize and approve official traver and transportation for
staff members of the Immediate Office of the Secretary including
authority to sign and approve related travel orders and travel vouchers,
but not including requests for overseas travel.
(f) Issue monetary authorizations for use of reception and
representation funds.
(g) Act for the Secretary and Deputy Secretary with respect to
certain budgetary and administrative matters relating to the Immediate
Office of the Secretary.
(Amdt. 1-130, 42 FR 58754, Nov. 11, 1977. Redesignated by Amdt.
1-157, 45 FR 83409, Dec. 18, 1980)
49 CFR 1.59 Delegations to the Assistant Secretary for Administration.
The Assistant Secretary for Administration is delegated authority for
the following:
(a) Acquisition. (1) Exercise procurement authority with respect to
requirements of the Office of the Secretary.
(2) Make the required determinations with respect to mistakes in bids
relative to sales of personal property conducted by the Office of the
Secretary without power of redelegation.
(3) Carry out the functions vested in the Secretary by sections 3 and
4(b) (as appropriate) of Executive Order 11912.
(4) Carry out the functions delegated to the Secretary from time to
time by the Administrator of General Services to lease real property for
Department use.
(b) Personnel. (1) Conduct a personnel management program for the
Office of the Secretary with authority to take, direct others to take,
recommend or approve any personnel action with respect to such
authority.
(2) Develop and implement an affirmative action plan in the Office of
the Secretary to assure equal employment opportunity.
(3) Serve as Vice Chairman of the Departmental Executive Resources
Board and its Executive Resources Review Committee.
(4) Exercise emergency authority to hire without the prior approval
of the Deputy Secretary normally required by Departmental procedures
implementing general employment limitations when in the judgment of the
Assistant Secretary immediate action is necessary to effect the hire and
avoid the loss of a well-qualified job applicant, and for similar
reasons.
(5) Review proposals of the Office of the Secretary for each new
appointment or transfer to:
(i) Verify the essentiality of the position, and
(ii) Assure compliance with the Action Plan for Equal Opportunity of
the Office of the Secretary.
(6) Approve employment of experts and consultants in accordance with
5 U.S.C. 3109.
(7) Serve as Vice Chairman of the Departmental Executive Personnel
Board and its Executive Committee.
(8) Issue final interpretations for the Department and its
administrations on matters arising under section 7117 of title VII of
the Civil Service Reform Act of 1978.
(9) Develop, coordinate, and issue wage schedules for Department
employees under the Federal Wage System, except as delegated to the
Commandant of the Coast Guard at 1.46.
(c) Finance. (1) Administer the financial and fiscal affairs of the
Office of the Secretary (other than those for which the Assistant
Secretary for Budget and Programs is responsible), in accordance with 31
U.S.C. 3512.
(2) Designate to the Treasury Department certifying officers and
designated agents for the Office of the Secretary and imprest fund
cashiers for the Departmental headquarters. (Redelegation to the
Director of Financial Management is contained in subpart C, 1.59a.)
(3) In accordance with 31 U.S.C. 3527, grant or recommend relief from
accountability for losses or deficiencies of disbursing officers,
cashiers, or other accountable officers as follows:
(i) Grant relief for losses or deficiencies of less than $500 for
which charges or exceptions have not been raised by the General
Accounting Office.
(ii) Recommend relief by the Comptroller General for all other losses
or deficiencies.
(4) Settle and pay claims by employees of the Office of the
Secretary, except at the Transportation System Center, for personal
property losses, as provided by 31 U.S.C. 241(b).
(5) Waive claims and make refunds in connection with claims for
erroneous overpayment of pay and allowances to an employee of the Office
of the Secretary in the amounts aggregating not more than $500 without
regard to any repayments, and deny requests for waiver of such claims
regardless of the aggregate amount of the claim, as provided by 4 CFR
parts 91, 92, and 93. This authority may be redelegated only to the
Director of Financial Management.
(6) Compromise, suspend collection action on, or terminate claims of
the United States not exceeding $20,000 which are referred to, or arise
out of the activities of, the Office of the Secretary.
(7) Determine the existence and amount of indebtedness and the method
of collecting repayments from employees of the Office of the Secretary
and collect repayments accordingly, as provided by 5 U.S.C. 5514. This
authority may be redelegated only to the Director of Financial
Management.
(8) Sign Budget Execution reports required by OMB Circular A-34, for
the Office of the Secretary. (Redelegation to the Director of Financial
Management is contained in subpart C, 1.59a.)
(9) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer. (Redelegation to the Director of Financial
Management is contained in subpart C, 1.59a.)
(10) Approve cash purchases of emergency passenger transportation
services costing over $100 under FPMR G-72, as amended.
(11) Perform accounting and related functions in support of the
essential air service program.
(12) Carry out the functions and obligations assigned to the
Secretary with respect to the Prompt Payment Act, Pub. L. 97-177.
(13) Carry out the functions and duties assigned to the Secretary
with respect to the Debt Collection Act of 1982, Pub. L. 97-365.
(d) Special funds. Except as otherwise delegated, establish or
operate, or both, such special funds as may be required by statute or by
administrative determination. This includes such special funds as the
Working Capital Fund (49 U.S.C. 1657(j)).
(e) Security. (1) Represent the Secretary on the National
Communications Security Committee and Interdepartmental Committee on
Internal Security.
(2) Issue identification media ''by direction of the Secretary''.
(3) Classify information in the interests of national defense.
(4) Take certain classified actions on behalf of the Department in
connection with counter-audio programs.
(5) Authorize exceptions to investigative standards for National
Defense Executive Reservists.
(6) Determine when emergencies, other than attack on the United
States, justify activation of Personnel Security Regulations issued by
the Secretary.
(7) Approve exceptions to the Personnel Security regulations issued
by the Secretary.
(8) Request the Office of Personnel Management to modify
investigative requirements in other areas.
(f) Printing. (1) Request approval of the Joint Committee on
Printing, Congress of the United States, for any procurement or other
action requiring Committee approval.
(2) Certify the necessity for Departmental periodicals and request
approval of the Director of the Office of Management and Budget (OMB
Circular No. A-3 Revised as of Sept. 8, 1960).
(g) Document authentication. Emboss and affix the official
Departmental seal to appropriate documents and other materials, for all
purposes for which authentication by seal is required.
(h) Foreign travel. Review written requests for modification to the
Department's foreign travel plan approved by the Office of Management
and Budget.
(i) Gifts and bequests. Carry out the functions vested in the
Secretary by section 9(m) of the Department of Transportation Act (Pub.
L. 89-670).
(j) Equal employment opportunity. Exercise the authority of the
Secretary to accept or reject internal complaints of discrimination on
the basis of race, color, religion, sex, national origin, or age arising
within or relating to the Office of the Secretary.
(k) Building management. Carry out the functions vested in the
Secretary by sections 1(b) and 4(b) (as appropriate) of Executive Order
11912.
(l) Privacy. Issue notices of Department of Transportation systems
of records as required by the Privacy Act of 1974 (5 U.S.C. 552a(e)(4),
(11)).
(m) Hearings. Provide logistical and administrative support to the
Department's Office of Hearings.
(n) Paperwork reduction. Carry out the functions and
responsibilities assigned to the Secretary with respect to the Paperwork
Reduction Act of 1980, Pub. L. 96-511.
(o) Federal real property management. Carry out the functions
assigned to the Secretary with respect to Executive Order 12512 of April
28, 1985.
(p) The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894. Except as
provided in 1.45, 1.48 and 49 CFR 25.302. the functions, powers, and
duties of the Secretary of Transportation, with respect to the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of
1970, are delegated to the Assistant Secretary for Administration with
respect to programs administered by the Office of the Secretary. This
authority is subject to the requirements listed in 1.45 that govern all
Operating Administrations' authority with respect to the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of
1970.
(q) Regulations. Issue Department of Transportation procurement
regulations, subject to the following limitation:
(1) Coordination. The views of the General Counsel, the interested
administrations and other offices will be solicited in the development
of the procurement regulations. In commenting upon proposed provisions
for the procurement regulations, the administrations will indicate the
nature and purpose of any additional implementing or supplementing
policy guidances which they propose to issue at the administration
level.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975; as amended by Amdt.
1-216, 52 FR 9864, Mar. 27, 1987)
Editorial Note: For Federal Register citations affecting 1.59, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
49 CFR 1.59a Redelegations by the Assistant Secretary for
Administration.
(a) The Assistant Secretary for Administration has redelegated to the
Director of Acquisition and Grant Management authority to procure and
authorize payment for property and services for the Office of the
Secretary, with power to redelegate and authorize successive
redelegations.
(b) The Assistant Secretary for Administration has redelegated to the
Director of Personnel authority to:
(1) Conduct a personnel management program for the Office of the
Secretary with authority to take, direct others to take, recommend or
approve any personnel action with respect to such authority.
(2) Develop, coordinate, and issue wage schedules for Department
employees under the Federal Wage System, except as delegated to the
Commandant of the Coast Guard at 1.46 of this part.
(c) The Assistant Secretary for Administration has redelegated to the
Director of Financial Management authority to:
(1) Designate to the Treasury Department certifying officers and
designated agents for the Office of the Secretary and imprest fund
cashiers for the Departmental Headquarters.
(2) Certify to the validity of obligations as required by 31 U.S.C.
200 and to the adequacy of bond coverage for the designations under
section 160(c)(2).
(3) Sign reports on Budget Execution as required by OMB Circular A-34
(Revised).
(4) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer.
(5) Process essential air service payments.
(6) Approve claims of OST employees allowable under 31 U.S.C. 3721
for amounts of $500 or less.
(Amdt. 1-209, 51 FR 29233, Aug. 15, 1986, as amended by Amdt. 1-232,
54 FR 46616, Nov. 6, 1989)
49 CFR 1.60 Delegations to the Inspector General.
The Inspector General is delegated, and has agreed to carry out, the
following:
(a) Aviation economics. The conduct of audits under 49 U.S.C. 1389;
and 49 U.S.C. 1377(e).
(Amdt. 1-199, 49 FR 50997, Dec. 31, 1984)
49 CFR 1.61 Delegations to Assistant Secretary for Governmental
Affairs.
The Assistant Secretary for Governmental Affairs is delegated
authority to:
(a) Establish procedures for responding to Congressional
correspondence.
(b) Serve as the Department's point of contact in relationships with
public and private organizations and groups devoted to consumer and
community services or affairs.
(c) Serve as coordinator for intra-Departmental consumer affairs
programs.
(d) As supplemented by 14 CFR part 385, carry out the following
authority transferred to the Department from the Civil Aeronautics Board
--
(1) Assist consumers in dealings with the air transportation
industry;
(2) Assist State and local organizations in handling airline consumer
complaints;
(3) Investigate consumer complaints regarding the air transportation
industry and, as appropriate, recommend enforcement actions to be
brought by the Deputy General Counsel;
(4) (Reserved)
(5) Carry out the following statutory provisions:
(i) Section 4(a)(5) of the Civil Aeronautics Board Sunset Act of 1984
(October 4, 1984; Pub. L. 98-443), relating to enforcement of the
Consumer Credit Protection Act;
(ii) Sections 204 (a) and (b) (relating to taking such actions as may
be necessary to carry out responsibilities under the Federal Aviation
Act), 407 (a) and (e) (relating to requiring the production of
information, entering carrier property, and inspecting records), and 411
(relating to determining whether any carrier or ticket agent is engaged
in unfair or deceptive practices or unfair methods of competition), of
the Federal Aviation Act of 1958, as amended, (49 U.S.C. 1324 (a) and
(b), 1377 (a) and (e), and 1381) as appropriate to the consumer
information and assistance functions in this paragraph.
(Amdt. 1-157, 45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-199,
49 FR 50997, Dec. 31, 1984; Amdt. 1-205, 50 FR 52468, Dec. 24, 1985)
49 CFR 1.62 Delegations to the Director of Small and Disadvantaged
Business Utilization.
The Director of Small and Disadvantaged Business Utilization is
delegated authority to:
(a) Exercise Departmental responsibility for the implementation and
execution of functions and duties under sections 8 and 15 of the Small
Business Investment Act, as amended (15 U.S.C. 637 and 644).
(b) Carry out the functions vested in the Secretary by section 906 of
the Railroad Revitalization and Regulatory Reform Act of 1976 (Pub. L.
94-210), as amended.
(Amdt. 1-157, 45 FR 83409, Dec. 18, 1980)
49 CFR 1.63 Delegations to Assistant Secretary for Public Affairs.
The Assistant Secretary for Public Affairs is delegated authority to:
(a) (Reserved)
(b) Monitor the overall public information program and review and
approve Departmental informational materials having policy-making
ramifications before they are printed and disseminated.
(c) Carry out the functions vested in the Secretary by section 4(b)
(as appropriate) of Executive Order 11912.
(d) Carry out the functions to promote carpooling and vanpooling
which were vested in the Federal Energy Administration by section
381(b)(1)(B) of the Energy Policy and Conservation Act and transferred
to the Department of Transportation by section 310 of the Department of
Energy Organization Act of 1977.
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt.
1-118, 41 FR 35849, Aug. 25, 1976; Amdt. 1-157, 45 FR 83409, Dec. 18,
1980; Amdt. 1-184, 48 FR 44079, Sept. 27, 1983; Amdt. 1-228, 54 FR
10010, Mar. 9, 1989)
1.64 (Reserved)
49 CFR 1.65 Authority to classify information.
(a) E.O. 12356 confers upon the Secretary of Transportation authority
to originally classify information as Secret and Confidential with
further authorization to delegate this authority. (No official of the
Department of Transportation has authority to originally classify
information as Top Secret.)
(b) The following delegations of this authority, which may not be
redelegated, are hereby made:
(1) Office of the Secretary (OST). Chief, Security Staff.
(2) U.S. Coast Guard (USCG). The Commandant; Chief, Office of
Operations.
(3) Federal Aviation Adminstration (FAA). The Administrator;
Director of Civil Aviation Security.
(4) Maritime Administration (MARAD). The Administrator; Associate
Administrator for Policy and Administration (Confidential only);
Director, Office of International Activities (Confidential only);
Chief, Division of National Security Plans (Confidential only).
(c) Authority of originally classify information as Secret or
Confidential is delegated to the following officials to become effective
automatically upon declaration of civil readiness level Initial Alert or
the comparable military readiness level. If invoked, this authority is
automatically terminated when both civil and military levels return to
the level of Communications Watch or comparable readiness state.
(1) OST. Deputy Secretary; Assistant Secretary for Policy and
International Affairs; Assistant Secretary for Administration.
(2) USCG. Vice Commandant; Chief of Staff; Commander, Atlantic
Area; Commander, Pacific Area; Commanders, Coast Guard Districts;
Commander, Coast Guard Activities, Europe; Chief, Intelligence and
Security Division.
(3) FAA. Deputy Administrator; Directors, FAA Regions and Centers.
(4) MARAD. Deputy Administrator; Region Directors; Heads of ALFA,
BRAVO, and CHARLIE Emergency Teams when activated.
(d) Although the delegations of authority are expressed above in
terms of positions, the authority is personal and is vested only in the
individual occupying the position. The authority may not be exercised
''by direction of'' a designated official. The formal appointment or
assignment of an individual to one of the identified positions, a
designation in writing of an individual to act in the absence of one of
these officials, or the exercise by an individual of the powers of one
of these officials by operation of law, however, conveys the authority
to originally classify information.
(e) Previous delegations of authority to Department of Transportation
officials to originally classify information as Secret and Confidential
are hereby rescinded.
(Amdt. 1-195, 49 FR 26594, June 28, 1984)
49 CFR 1.66 Delegations to Maritime Administrator.
With the exception of those authorities delegated to the Maritime
Subsidy Board in 1.67 of this title, the Maritime Administrator is
delegated authority to:
(a) Carry out sections 9, 12, 14a, 21a, 37, 40, 41, and 42 of the
Shipping Act, 1916, as amended (46 U.S.C. 801 et seq.);
(b) Carry out the Merchant Marine Act, 1920, as amended (46 U.S.C.
861 et seq.), including the Ship Mortgage Act, 1920, as amended (46
U.S.C. 921 et seq.);
(c) Carry out the Merchant Marine Act, 1928, as amended (46 U.S.C.
891 et seq.);
(d) Carry out section 7 of the Intercoastal Shipping Act, 1933, as
amended (46 U.S.C. 843 et seq.);
(e) Carry out the Merchant Marine Act, 1936, as amended (46 U.S.C.
1101 et seq.); except the authority delegated to the Administrator of
the National Oceanic and Atmospheric Administration relating to the
establishment of capital construction fund agreements under section 607
thereof and the granting of financing guarantees under title XI thereof,
with respect to vessels in the fishing trade or industry;
(f) Carry out the Merchant Ship Sales Act of 1946, as amended (50
U.S.C. App. 1735 et seq.);
(g) Carry out the Suits in Admiralty Act (1920), as amended (46
U.S.C. 741 et seq.);
(h) Carry out the Civilian Nautical School Act, 1940 (46 U.S.C. 1331
et seq.);
(i) Carry out the Act of June 2, 1951 (46 U.S.C. 1241a) regarding the
''Vessel Operations Revolving Fund'';
(j) Carry out the Act of August 9, 1954 (50 U.S.C. 196 et seq.)
commonly called the Emergency Foreign Vessels Acquisition Act;
(k) Carry out the Act of July 24, 1956 (46 U.S.C. 249 et seq.)
commonly called the Merchant Marine Medals Act of 1956;
(l) Carry out the Maritime Academy Act of 1958, as amended (46 U.S.C.
1381 et seq.);
(m) Carry out the Act of May 16, 1972, as amended (86 Stat. 140)
authorizing sale or purchase of certain passenger vessels,
(n) Carry out the Act of August 22, 1972 (86 Stat. 618) authorizing
sale of Liberty ships for use as artificial reefs,
(o) Carry out section 717 of the Act of October 26, 1972 (86 Stat.
1184) commonly known as the Department of Defense Appropriations Act,
1973, and similar subsequent enactments, with respect to transferring or
otherwise making available vessels under the jurisdiction of the
Maritime Administration to another Federal agency or, similarly,
accepting vessels from another Federal agency,
(p) (Reserved)
(q) Exercise the authority delegated by the Administrator of the
General Services Administration, dated August 15, 1967, to appoint
uniformed guards as special police officers, with such powers as are
conferred in the Act of June 1, 1948 (62 Stat. 281), as amended, for
protection duties on those parcels of property at the United States
Merchant Marine Academy, Kings Point, New York, which are not protected
by General Services Administration guards, and over which the Federal
Government has exclusive or concurrent jurisdiction,
(r) Carry out the responsibilities of the National Shipping Authority
(initially established by the Secretary of Commerce effective March 13,
1951) in the capacity of Director, National Shipping Authority,
(s) Carry out the Maritime Education and Training Act of 1980 (46
U.S.C. 1295), as amended,
(t) Carry out all other activities previously vested in the Secretary
of Commerce and transferred pursuant to Pub. L. 97-31.
(u) Carry out the functions vested in the Secretary by section 3(d)
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it
relates to ships owned or operated by the Maritime Administration when
engaged in noncommercial service.
(w) Carry out the provisions of subtitle B of Public Law 101-624.
(x) Carry out the provisions of section 709 of Public Law 101-595,
104 Stat. 2996.
(Amdt. 1-164, 46 FR 47459, Sept. 28, 1981, as amended by Amdt.
1-167, 47 FR 11677, Mar. 18, 1982; Amdt. 1-192, 49 FR 12706, Mar. 30,
1984; Amdt. 1-238, 56 FR 6810, Feb. 20, 1991; Amdt. 1-243, 56 FR
22121, May 14, 1991)
49 CFR 1.67 Delegations to Maritime Subsidy Board.
(a) The Maritime Subsidy Board is delegated authority to:
(1) Carry out all functions previously vested in the Secretary of
Commerce pursuant to section 105(1) (except the last proviso thereto and
readjustments in determinations of operating cost differentials not
requiring a hearing and contractual changes reducing or realigning
service requirements not involving additional subsidy or requiring a
section 605(c) hearing under the Act (46 U.S.C. 1175(c)), section
105(2), and, insofar as applicable to these functions, section 105(3) of
Reorganization Plan No. 21 of 1950, and section 202(b)(1) of
Reorganization Plan No. 7 of 1961, except investigations, hearings and
determinations, including changes in determinations, with respect to
minimum manning scales, minimum wage scales, and minimum working
conditions referred to in section 301(a) of the Merchant Marine Act,
1936, as amended (46 U.S.C. 1101 et seq.).
(2) Carry out all functions previously vested in the Secretary of
Commerce pursuant to section 103(e) of Reorganization Plan No. 7 of
1961 and section 202(b)(2) (except requiring the filing of reports,
accounts, records, rates, charges, and memoranda under section 21 of the
Shipping Act, 1916, as amended, and making reports and recommendations
to Congress) and section 202(b)(3) of Reorganization Plan No. 7 of
1961, insofar as said functions relate to the functions described in
paragraph (a)(1) of this section.
(3) Execute and sign, by and through any member of the Board or the
Secretary or an Assistant Secretary of the Board, contracts and other
documents authorized or approved by the Board pursuant to paragraphs
(a)(1) and (a)(2) of this section. The execution of such contracts or
documents may be attested, under the seal of the Department of
Transportation, by the Secretary or an Assistant Secretary of the
Maritime Subsidy Board.
(b) The Maritime Subsidy Board may exercise other authorities of the
Secretary of Transportation as applicable to performing the functions
assigned to the Board in this part.
(c) The Board is composed of the Maritime Administrator, the Deputy
Maritime Administrator, and the Chief Counsel of the Administration, and
during a vacancy in any one of those offices, the person acting in such
capacity shall be a member of the Board, unless the Secretary of
Transportation designates another person. In case there still is a
vacancy in the Board or in the absence or disability of one of its
members, the Secretary of the Maritime Administration and Maritime
Subsidy Board, or any other persons designated by the Secretary of
Transportation, shall act as a member or members of the Board. Each
member of the Board, while serving in that capacity, shall act pursuant
to direct authority from the Secretary of Transportation and exercise
judgment independent of authority otherwise delegated to the Maritime
Administrator. The Maritime Administrator or the Acting Maritime
Administrator serves as Chairperson of the Board. The concurring votes
of two members shall be sufficient for the disposition of any matter
which may come before the Board.
(d) The Chairperson of the Maritime Subsidy Board may make use of
officers and employees of the Maritime Administration to perform
activities for the Board. Employees of the Maritime Administration may
be designated as the Secretary or Assistant Secretaries of the Board.
(Amdt. 1-164, 46 FR 47460, Sept. 28, 1981, as amended by Amdt.
1-211, 51 FR 29471, Aug. 18, 1986)
49 CFR 1.68 Delegations to Director of Commercial Space Transportation.
The Director of Commercial Space Transportation is delegated
authority to --
(a) Carry out the functions assigned to the Secretary by Executive
Order 12465 (February 24, 1984) relating to commercial expendable launch
vehicle activities.
(b) Carry out the functions vested in the Secretary by the Commercial
Space Launch Act (Pub. L. 98-575; October 30, 1984).
(Amdt. 1-202, 50 FR 9036, Mar. 6, 1985)
49 CFR 1.69 Delegations to the Director of Intelligence and Security.
The Director of Intelligence and Security is delegated authority to:
(a) Carry out the functions assigned to the Secretary by the Aviation
Security Improvement Act of 1990, section 101 (Pub. L. 101-508;
November 16, 1990) relating to intelligence and security matters for all
modes of transportation.
(b) (Reserved)
(Amdt. 1-237, 56 FR 5958, Feb 14, 1991)
49 CFR 1.69 Pt. 1, App. A
49 CFR 1.69 Appendix A to Part 1 -- Delegations and Redelegations by
Secretarial Officers
1. Director of Budget. The Assistant Secretary for Budget and
Programs has redelegated to the Director of Budget authority to:
(a) Request apportionment and reapportionment of funds by the Office
of Management and Budget, provided that no request for apportionment or
reapportionment which anticipates the need for a supplemental
appropriation shall be submitted to the Office of Management and Budget
without appropriate certification by the Secretary.
(b) Issue allotments or allocations of funds to components of the
Department.
2. Chief Counsel, U.S. Coast Guard. (a) The General Counsel, as
Judge Advocate General for the U.S. Coast Guard, has delegated to the
Chief Counsel, U.S. Coast Guard, pursuant to the Uniform Code of
Military Justice, chapter 47 of title 10, United States Code, authority
to exercise the following powers and duties:
(1) The authority to recommend assignment for duty of judge advocates
under Article 6(a), section 806(a) of title 10, United States Code.
(2) The authority to make field inspections in connection with the
administration of military justice under Article 6(a) section 806(a) of
Title 10, United States Code.
(3) The authority to designate military judges; to make assignments
of, and exercise direct responsibility for, military judges; and to
assign, or approve the performance of, other duties of a judicial or
nonjudicial nature by military judges under Article 26(c), section
826(c) of title 10, United States Code.
(4) The authority to forward to a Court of Military Review records
that must be referred to a Court of Military Review under Article 66(b),
section 866(b) of title 10, United States Code.
(5) The authority to instruct the convening authority to take action
in accordance with the decision of the Court of Military Review or
dismiss the charges under Article 66(e), section 866(e) of title 10,
United States Code.
(6) The authority to modify or vacate findings and sentences in cases
not reviewed by a Court of Military Review under Article 69, section 869
of title 10, United States Code.
(7) The authority to certify counsel as competent to perform the
duties of trial counsel and defense counsel of a general court-martial
under 10 U.S.C. 827(b), Art. 27(b) UCMJ.
(8) The authority to detail appellate Government counsel and
appellate defense counsel to perform duties in connection with the
review of court-martial cases by the Court of Military Review, the Court
of Military Appeals and the Supreme Court.
(9) The authority to perform any other duty and exercise any other
power which the General Counsel is authorized or required to perform
under the Uniform Code of Military Justice or the Manual for
Courts-Martial, with the exception of the following which are reserved
to the General Counsel or his or her delegatee within the Office of the
General Counsel:
(i) Authority to certify commissioned officers as qualified for duty
as military judges under Article 26(b), section 826(b) of title 10,
United States Code.
(ii) Authority to establish a Court of Military Review and designate
a chief judge of the court under Article 66(a), section 866(a) of title
10, United States Code.
(iii) Authority to order cases sent to the Court of Military Appeals
under Article 67(b)(2), section 867(b)(2) of title 10, United States
Code.
(iv) Authority to examine records of general courts-martial not
reviewed under Article 66, section 866 of title 10, United States Code,
and modify or set aside the findings or the sentence, or refer the
record to the Court of Military Review under Article 69(a), section
869(a) of title 10, United States Code.
(v) Authority to prescribe rules not inconsistent with the Manual for
Courts-Martial to govern the professional supervision and discipline of
military trial and appellate judges, judge advocates, and other lawyers
who practice in proceedings governed by the UCMJ and Manual for
Courts-Martial.
(vi) Authority to make the recommendation of the Judge Advocate
General in a court-martial case requiring approval by the Secretary or
the President.
(vii) Authority to approve a vacation of supension of dismissal of
military personnel.
(b) The authority delegated by paragraph (a)(3) of this section may
be redelegated only to the Deputy Chief Counsel.
(c) The Chief Counsel shall make an annual summary report of his
actions taken under paragraph (a)(6) of this section of this delegation
to the General Counsel of the Department of Transportation (including
the number of cases subject to that authority, the number of
applications for review filed, and the disposition thereof) for
inclusion, as appropriate, in the Judge Advocates General and Court of
Military Appeals report to Congress required by Article 67(g), section
867(g) of title 10, United States Code.
3. Chief Counsels. The General Counsel has delegated to the Chief
Counsels the authority delegated to the General Counsel by Amendment
1-41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17653,
November 17, 1970, as follows:
Section 855 of the Revised Statutes, as amended by Public Law 91-393,
84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to
delegate to other departments and agencies his authority to give written
approval of the sufficiency to the title to land being acquired by the
United States. The Attorney General has delegated to the Assistant
Attorney General in charge of the Land and Natural Resources Division
the authority to make delegations under that law to other Federal
departments and agencies (35 FR 16084; 28 CFR 0.66). The Assistant
Attorney General, Land and Natural Resources Division, has further
delegated certain responsibilities in connection with the approval of
the sufficiency of the title to land to the Department of Transportation
as follows:
Pursuant to the provision of Public Law 91-393, approved September 1,
1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting under
the provisions of Order No. 440-70 of the Attorney General, dated
October 2, 1970, the responsibility for the approval of the sufficiency
of the title to land for the purpose for which the property is being
acquired by purchase or condemnation by the United States for the use of
your Department is, subject to the general supervision of the Attorney
General and to the following conditions, hereby delegated to your
Department.
This delegation of authority is further subject to:
1. Compliance with the regulations issued by the Assistant Attorney
General on October 2, 1970, a copy of which is enclosed.
2. This delegation is limited to:
(a) The acquisition of land for which the title evidence, prepared in
compliance with these regulations, consists of a certificate of title,
title insurance policy, or an owner's duplicate Torrens certificate of
title.
(b) The acquisition of lands valued at $100,000 or less, for which
the title evidence consists of abstracts of title or other types of
title evidence prepared in compliance with said regulations.
As stated in the above-mentioned Act, any Federal department or
agency which has been delegated the responsibility to approve land
titles under the Act may request the Attorney General to render his
opinion as to the validity of the title to any real property or interest
therein, or may request the advice or assistance of the Attorney General
in connection with determinations as to the sufficiency of titles.
The Chief Counsels of the United States Coast Guard, Federal Aviation
Administration, Federal Highway Administration, Federal Railroad
Administration, National Highway Traffic Safety Administration, Urban
Mass Transportation Administration, the St. Lawrence Seaway Development
Corporation, Maritime Administration, and Research and Special Programs
Administration are hereby authorized to approve the sufficiency of the
title to land being acquired by purchase or condemnation by the United
States for the use of their respective organizations. This delegation
is subject to the limitations imposed by the Assistant Attorney General,
Land and Natural Resources Division, in his delegation to the Department
of Transportation. Redelegation of this authority may only be made by
the Chief Counsels to attorneys within their respective organizations.
If his organization does not have an attorney experienced and capable
in the examination of title evidence, a Chief Counsel may, with the
concurrence of the General Counsel, request the Attorney General to (1)
furnish an opinion as to the validity of a title to real property or
interest therein, or (2) provide advice or assistance in connection with
determining the sufficiency of the title.
(49 CFR 1.45(a) and 1.53(a); 49 U.S.C. 322)
(Amdt. 1-113, 40 FR 43901, Sept. 24, 1975)
Editorial Note: For Federal Register citations affecting the
Appendix to part 1, see the List of CFR Sections Affected in the Finding
Aids section of this volume.
49 CFR 1.69 PART 3 -- OFFICIAL SEAL
Sec.
3.1 Description.
3.3 Authority to affix seal.
3.5 Use of the Seal.
Authority: Sec. 9(k), 49 U.S.C. 1657(k).
Source: Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, unless otherwise
noted.
49 CFR 3.1 Description.
The official seal of the Department of Transportation is described as
follows: A white abstract triskelion figure signifying motion appears
within a circular blue field. The figure is symmetrical. The three
branches of the figure curve outward in a counter-clockwise direction,
each tapering almost to a point at the edge of the field. Surrounding
the blue circle is a circular ring of letters. The upper half of the
ring shows the words ''Department of Transportation''. The lower half
of the ring shows the words ''United States of America''. The letters
may be shown in either black or medium gray. The official seal of the
Department is modified when embossed. It appears below in black and
white.
Insert illustration 0264
49 CFR 3.3 Authority to affix seal.
(a) The following officials of the Department of Transportation are
authorized to affix the official seal of the Department of
Transportation to appropriate documents and other materials of the
Department, for all purposes, including those authorized by 28 U.S.C.
1733(b): The General Counsel, the Assistant Secretary for
Administration, the Commandant of the Coast Guard, the Federal Aviation
Administrator, the Federal Highway Administrator, the Federal Railroad
Administrator, the Urban Mass Transportation Administrator, the National
Highway Traffic Safety Administrator, the Maritime Administrator, the
Research and Special Programs Administrator, the Inspector General, and
the Chairman, Board of Contract Appeals.
(b) The officers named in paragraph (a) of this section may
redelegate, and authorize redelegations of, this authority.
(Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, as amended by Amdt. 3-4, 46
FR 42272, Aug. 20, 1981)
49 CFR 3.5 Use of the Seal.
(a) The Seal is the official emblem of the Department of
Transportation and its use is therefore permitted only as provided in
this part.
(b) Use by any person or organization outside of the Department may
be made only with the Department's prior written approval.
(c) Requests by any person or organization outside of the Department
for permission to use the Seal must be made in writing to the Assistant
Secretary for Administration, 400 Seventh St., SW., Washington, DC
20590, and must specify, in detail, the exact use to be made. Any
permission granted applies only to the specific use for which it was
granted and is not to be construed as permission for any other use.
(d) Use of the Seal shall be essentially for informational purposes.
The Seal may not be used on any article or in any manner which may
discredit the Seal or reflect unfavorably upon the Department or which
implies Departmental endorsement of commercial products or services, or
of the user's policies or activities. Specifically, permission may not
be granted under this section for use:
(1) On souvenir or novelty items of an expendable nature;
(2) On toys, gifts, or premiums;
(3) As a letterhead design;
(4) On menus, matchbook covers, covers, calendars, or similar items;
(5) To adorn civilian clothing; or
(6) On athletic clothing or equipment.
(e) Where necessary to avoid any prohibited implication or confusion
as to the Department's association with the user, an appropriate legend
will be prescribed by the Department for prominent display in connection
with the permitted use.
(f) Falsely making, forging, counterfeiting, mutilating, or altering
the Seal, or knowingly using or possessing with fraudulent intent any
altered Seal is punishable under section 506 of title 18, United States
Code.
49 CFR 3.5 PART 5 -- RULEMAKING PROCEDURES
49 CFR 3.5 Subpart A -- General
Sec.
5.1 Applicability.
5.3 Initiation of rulemaking.
5.5 Participation by interested persons.
5.7 Regulatory docket.
49 CFR 3.5 Subpart B -- Petitions for Rulemaking or Exemptions
5.11 Filing of petitions.
5.13 Processing of petitions.
49 CFR 3.5 Subpart C -- Procedures
5.21 General.
5.23 Contents of notices.
5.25 Petitions for extension of time to comment.
5.27 Consideration of comments received.
5.29 Additional rulemaking proceedings.
5.31 Hearings.
5.33 Adoption of final rules.
Appendix A to Part 5
Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657).
Source: 32 FR 10363, July 14, 1967, unless otherwise noted.
49 CFR 3.5 Subpart A -- General
49 CFR 5.1 Applicability.
(a) This part prescribes general rulemaking procedures that apply to
the issue, amendment, and repeal of rules of the Secretary of
Transportation. It does not apply to rules issued by the National
Transportation Safety Board, U.S. Coast Guard, Federal Aviation
Administration, Federal Highway Administration, Federal Railroad
Administration, Urban Mass Transportation Administration, National
Highway Traffic Safety Administration, or St. Lawrence Seaway
Development Corporation.
(b) For the purposes of this part, Secretary means the Secretary of
Transportation or the Under Secretary of Transportation, or any of the
following to whom the Secretary has delegated authority to conduct
rulemaking proceedings:
(1) Any Assistant Secretary.
(2) The General Counsel.
Any of these officers may redelegate that authority to the head of
any office who reports to him.
(c) Records relating to rule-making proceedings are available for
inspection as provided in part 7 of this subtitle.
(32 FR 10363, July 14, 1967, as amended by Amdt. 5-2, 35 FR 5331,
Mar. 31, 1970; Amdt. 5-3, 36 FR 430, Jan. 13, 1971)
49 CFR 5.3 Initiation of rulemaking.
The Secretary initiates rulemaking on his own motion. However, in
doing so, he may, in his discretion, consider the recommendations of
other agencies of the United States and of other interested persons.
49 CFR 5.5 Participation by interested persons.
Any person may participate in rulemaking proceedings by submitting
written information or views. The Secretary may also allow any person
to participate in additional rulemaking proceedings, such as informal
appearances or hearings, held with respect to any rule.
49 CFR 5.7 Regulatory docket.
(a) Records of the Office of the Secretary of Transportation
concerning rule-making actions, including notices of proposed rule
making, comments received in response to those notices, petitions for
rule making or exemption, petitions for rehearing or reconsideration,
grants and denials of exemptions, denials of petitions for rule making,
and final rules are maintained in current docket form in the Office of
the General Counsel.
(b) Any person may examine any docketed material at that office and
may obtain a copy of any docketed material upon payment of the
prescribed fee.
49 CFR 5.7 Subpart B -- Petitions for Rulemaking or Exemptions
49 CFR 5.11 Filing of petitions.
(a) Any person may petition the Secretary to issue, amend, or repeal
a rule, or for a permanent or temporary exemption from any rule.
(b) Each petition filed under this section must:
(1) Be submitted in duplicate to the Docket Clerk, Office of the
General Counsel, Department of Transportation, Washington, DC 20590;
(2) Set forth the text or substance of the rule or amendment
proposed, or of the rule from which the exemption is sought, or specify
the rule that the petitioner seeks to have repealed, as the case may be;
(3) Explain the interest of the petitioner in the action requested
including, in the case of a petition for an exemption, the nature and
extent of the relief sought and a description of the persons to be
covered by the exemption;
(4) Contain any information and arguments available to the petitioner
to support the action sought; and
(5) In the case of a petition for exemption, unless good cause is
shown in that petition, be submitted at least 60 days before the
proposed effective date of the exemption.
49 CFR 5.13 Processing of petitions.
(a) General. Each petition received under 5.11 of this part is
referred to the head of the office responsible for the subject matter of
that petition. No public hearing, argument, or other proceeding is held
directly on a petition before its disposition under this section.
(b) Grants. If the Secretary determines that the petition contains
adequate justification, he initiates rule-making action under subpart C
of this part or grants the exemption, as the case may be.
(c) Denials. If the Secretary determines that the petition does not
justify initiating rule-making action or granting the exemption, he
denies the petition.
(d) Notification. Whenever the Secretary determines that a petition
should be granted or denied, the office concerned and the Office of the
General Counsel prepare a notice of that grant or denial for issuance to
the petitioner, and the Secretary issues it to the petitioner.
49 CFR 5.13 Subpart C -- Procedures
49 CFR 5.21 General.
(a) Unless the Secretary finds, for good cause, that notice is
impractical, unnecessary, or contrary to the public interest, a notice
of proposed rule making is issued and interested persons are invited to
participate in the rulemaking proceedings with respect to each
substantive rule.
(b) Unless the Secretary determines that notice and public rulemaking
proceedings are necessary or desirable, interpretive rules, general
statements of policy, and rules relating to organization, procedure, or
practice are prescribed as final without notice or other public
rulemaking proceedings.
(c) In his discretion, the Secretary may invite interested persons to
participate in the rulemaking proceedings described in 5.29 of this
subpart.
49 CFR 5.23 Contents of notices.
(a) Each notice of proposed rulemaking is published in the Federal
Register, unless all persons subject to it are named and are personally
served with a copy of it.
(b) Each notice, whether published in the Federal Register or
personally served, includes:
(1) A statement of the time, place, and nature of the proposed
rule-making proceeding;
(2) A reference to the authority under which it is issued;
(3) A description of the subjects or issues involved or the substance
or terms of the proposed rule;
(4) A statement of the time within which written comments must be
submitted and the required number of copies; and
(5) A statement of how and to what extent interested persons may
participate in the proceeding.
49 CFR 5.25 Petitions for extension of time to comment.
(a) Any person may petition the Secretary for an extension of time to
submit comments in response to a notice of proposed rulemaking. The
petition must be submitted in duplicate not later than 3 days before
expiration of the time stated in the notice. The filing of the petition
does not automatically extend the time for petitioner's comments.
(b) The Secretary grants the petition only if the petitioner shows a
substantive interest in the proposed rule and good cause for the
extension, and if the extension is in the public interest. If an
extension is granted, it is granted as to all persons and is published
in the Federal Register.
49 CFR 5.27 Consideration of comments received.
All timely comments are considered before final action is taken on a
rule-making proposal. Late filed comments may be considered so far as
possible without incurring additional expense or delay.
49 CFR 5.29 Additional rulemaking proceedings.
The Secretary may initiate any further rulemaking proceedings that he
finds necessary or desirable. For example, he may invite interested
persons to present oral arguments, participate in conferences, appear at
informal hearings, or participate in any other proceeding.
49 CFR 5.31 Hearings.
(a) Sections 556 and 557 of title 5, United States Code, do not apply
to hearings held under this part. As a fact-finding proceeding, each
hearing is nonadversary and there are no formal pleadings or adverse
parties. Any rule issued in a case in which a hearing is held is not
necessarily based exclusively on the record of the hearing.
(b) The Secretary designates a representative to conduct any hearing
held under this part. The General Counsel designates a member of his
staff to serve as legal officer at the hearing.
49 CFR 5.33 Adoption of final rules.
Final rules are prepared by representatives of the office concerned
and the Office of the General Counsel. The rule is then submitted to
the Secretary for his consideration. If the Secretary adopts the rule,
it is published in the Federal Register, unless all persons subject to
it are named and are personally served with a copy of it.
49 CFR 5.33 Appendix A to Part 5
49 CFR 5.33 Pt. 5, App. A
Pursuant to 5.1(b), the following officials of the Office of the
Secretary of Transportation are authorized to conduct rule-making
proceedings under this part, as specified in this appendix:
(1) The General Counsel is authorized to conduct all rule-making
proceedings, except the issuance of final rules, under the Act of March
19, 1918, ch. 24, as amended (15 U.S.C. 261-264); the Uniform Time Act
of 1966 (80 Stat. 107, 15 U.S.C. 260-267); and section 6(e)(5) of the
Department of Transportation Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)).
(2) The General Counsel is authorized to determine the practicability
of applying the standard time of any standard time zone to the movements
of any common carrier engaged in interstate or foreign commerce, and,
under section 2 of the Act of March 19, 1918, ch. 24, as amended (15
U.S.C. 262), to issue operating exceptions in any case in which he
determines that it is impractical to apply the standard time.
(Amdt. 5-1, 32 FR 11473, Aug. 9, 1967)
49 CFR 5.33 PART 6 -- IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS
49 CFR 5.33 Subpart A -- General Provisions
Sec.
6.1 Purpose of these rules.
6.3 When the Act applies.
6.5 Proceedings covered.
6.7 Eligibility of applications.
6.9 Standards for awards.
6.11 Allowable fees and expenses.
6.13 Delegations of authority.
49 CFR 5.33 Subpart B -- Information Required from Applicants
6.17 Contents of application.
6.19 Net worth exhibit.
6.21 Documentation of fees and expenses.
49 CFR 5.33 Subpart C -- Procedures for Considering Applications
6.23 Filing and service of documents.
6.25 Answer to application.
6.27 Comments by other parties.
6.29 Settlement.
6.31 Further proceedings.
6.33 Decision.
6.35 Agency review.
6.37 Judicial review.
6.39 Payment of award.
Authority: Pub. L. 96-481, 94 Stat. 2325.
Source: 48 FR 1070, Jan. 10, 1983, unless otherwise noted.
49 CFR 5.33 Subpart A -- General Provisions
49 CFR 6.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ''the Act'' in
this part), provides for the award of attorney fees and other expenses
to eligible individuals and entities who are parties to certain
administrative proceedings (called ''adversary adjudications'':) before
government agencies, such as the Department of Transportation or any of
its operating administrations. An eligible party may receive an award
when it prevails over the Department of Transportation or any of its
operating administrations unless the agency's position in the proceeding
was substantially justified or special circumstances make an award
unjust. The rules in this part describe the parties eligible for awards
and the proceedings that are covered. They also explain how to apply
for awards, and the procedures and standards that this agency will use
to make them. The use of the term ''Department'', in this rule, will be
understood to mean the Department of Transportation or any of its
operating administrations, unless otherwise specified. The term
''agency counsel'' will be understood to mean counsel for the Department
of Transportation or any of its operating administrations.
49 CFR 6.3 When the Act applies.
The Act applies to any adversary adjudication pending before this
agency at any time between October 1, 1981, and September 30, 1984.
This includes proceedings begun before October 1, 1981, if final agency
action has not been taken before that date, and proceedings pending on
September 30, 1984.
49 CFR 6.5 Proceedings covered.
(a) The Act applies to adversary adjudications conducted by the
Department of Transportation. These are adjudications under 5 U.S.C.
554 in which the position of the Department is represented by an
attorney or other representative who enters an appearance and
participates in the proceeding. Coverage of the Act begins at
designation of a proceeding or issuance of a charge sheet. Any
proceeding in which the Department may prescribe or establish a lawful
present or future rate is not covered by the Act. Proceedings to grant
or renew licenses are also excluded, but proceedings to modify, suspend,
or revoke licenses are covered if they are otherwise ''adversary
adjudications.'' For the Department of Transportation, the types of
proceedings generally covered include: Coast Guard suspension or
revocation of licenses, certificates or documents under 46 U.S.C. 239;
46 CFR part 5; National Highway Traffic Safety Administration (NHTSA)
fuel economy enforcement under 15 U.S.C. 2001; (49 CFR part 511);
Federal Highway Administration (FHWA) driver qualification and
compliance order proceedings under 49 U.S.C. 655; (49 CFR part 386).
(b) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
49 CFR 6.7 Eligibility of applications.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to an adversary
adjudication for which it seeks an award. The term ''party'' is defined
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions
of eligibility set out in this subpart and in paragraph (b) of this
section.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $1 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $5 million, including both personal and business
interests, and not more than 500 employees.
(3) A charitable or other tax-exempt organization as described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3) with
not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with a net worth of not
more than $5 million and not more than 500 employees.
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $5 million and
not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was designated.
(d) An applicant who owns an unincorporated business will be
considered an ''individual'' rather than a ''sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(e) The number of employees of an applicant includes all persons who
regularly perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be
included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of
its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the administrative law judge determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
administrative law judge may determine that financial relationships of
the applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(h) An applicant who appears pro se in a proceeding is ineligible for
award of attorney fees. However, eligibility for other expenses is not
affected by pro se representation.
49 CFR 6.9 Standards for awards.
(a) An eligible applicant may receive an award for fees and expenses
incurred in connection with a proceeding, or in a significant and
discrete substantive portion of the proceeding, unless the position of
the agency over which the applicant has prevailed was substantially
justified or special circumstances make the award sought unjust. The
burden of proof that an award should not be made to an eligible
prevailing applicant is on the Department of Transportation, where it
has initiated the proceeding, or on the appropriate operating
administration, such as Coast Guard. No presumption arises that the
agency's position was not substantially justified simply because the
agency did not prevail.
(b) An award will be reduced or denied if the applicant has unduly or
unreasonably protracted the proceeding.
49 CFR 6.11 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents or expert
witnesses.
(b) No award for the fee of an attorney or agent under these rules
may exceed $75.00 per hour. This amount shall include all other
expenses incurred by the attorney or agent in connection with the case.
No award to compensate an expert witness may exceed the highest market
rate at which the Department pays expert witnesses, or $24.09 per hour,
whichever is less.
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the administrative law judge shall
consider the following:
(1) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(e) Fees may be awarded only for work performed after designation of
a proceeding.
49 CFR 6.13 Delegations of authority.
The Secretary of Transportation delegates to the head of each
operating administration of this Department the authority to take final
action, other than rulemaking, on matters pertaining to the Act in
actions that require section 554 proceedings. The head of each
operating administration may redelegate this authority.
49 CFR 6.13 Subpart B -- Information Required from Applicants
49 CFR 6.17 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of an agency or agencies in the proceeding that
the applicant alleges was not substantially justified. Unless the
applicant is an individual, the application shall also state that it did
not have more than 500 employees at the time the proceeding was
initiated, giving the number of employees of the applicant and
describing briefly the type and purpose of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $1 million (if an individual) or
$5 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes this agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized
officer or attorney of the applicant. It shall also contain or be
accompanied by a written verification under oath or under penalty of
perjury that the information provided in the application is true and
correct.
(f) If the applicant is a partnership, corporation, association, or
organization, or a sole owner of an unincorporated business, the
application shall state that it did not have more than 500 employees at
the time the proceeding was initiated, giving the number of its
employees and describing briefly the type and purpose of its
organization or business.
49 CFR 6.19 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in this part) when the proceeding was designated. If any
individual, corporation, or other entity directly or indirectly controls
or owns a majority of the voting shares or other interest of the
applicant, or if the applicant directly or indirectly owns or controls a
majority of the voting shares or other interest of any corporation or
other entity, the exhibit must include a showing of the net worth of all
such affiliates or of the applicant including the affiliates. The
exhibit may be in any form convenient to the applicant that provides
full disclosure of the applicant's and its affiliates' assets and
liabilities and is sufficient to determine whether the applicant
qualifies under the standards in this subpart. The administrative law
judge may require an applicant to file additional information to
determine its eligibility for an award.
(b) The net worth exhibit shall describe any transfers of assets
from, or obligations incurred by, the applicant or any affiliate,
occurring in the one-year period prior to the date on which the
proceeding was initiated, that reduced the net worth of the applicant
and its affiliates below the applicable net worth ceiling. If there
were no such transactions, the applicant shall so state.
(c) The net worth exhibit shall be included in the public record of
the proceeding.
49 CFR 6.21 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought.
(b) The documentation shall include an affidavit from any attorney,
agent, or expert witness representing or appearing in behalf of the
party, stating the actual time expended and the rate at which fees and
other expenses were computed and describing the specific services
performed.
(1) The affidavit shall state the services performed. In order to
establish the hourly rate, the affidavit shall state the hourly rate
which is billed and paid by the majority of clients during the relevant
time periods.
(2) If no hourly rate is paid by the majority of clients because, for
instance, the attorney or agent represents most clients on a contingency
basis, the attorney or agent shall provide information about two
attorneys or agents with similar experience, who perform similar work,
stating their hourly rate.
(c) The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of the
amounts paid and payable by the applicant or by any other person or
entity for the services provided.
(d) The administrative law judge may require the applicant to provide
vouchers, receipts, or other substantiation for any expenses claimed.
(e) The administrative law judge may, within his or her discretion,
make a determination as to whether a study, conducted by the applicant,
was necessary to the preparation of the applicant's case.
49 CFR 6.21 Subpart C -- Procedures for Considering Applications
49 CFR 6.23 Filing and service of documents.
Any application for an award or other pleading or document related to
an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding.
49 CFR 6.25 Answer to application.
(a) Within 30 calendar days after service of an application, the
agency counsel may file an answer to the application. Unless the agency
counsel requests an extension of time for filing or files a statement of
intent to negotiate under paragraph (b) of this section, failure to file
an answer within the 30-day period may be treated as a consent to the
award request.
(b) If agency counsel and applicant believe that they can reach a
settlement concerning the award, the agency counsel may file a statement
of intent to negotiate. The filing of such a statement shall extend the
time for filing an answer an additional 30 days.
(c) The answer shall explain in detail any objections to the award
requested an identify the facts relied on in support of the Department's
position. If the answer is based on any alleged facts not already in
the record of the proceeding, the Department shall include with the
answer either supporting affidavits or a request for further proceedings
under 6.3.
49 CFR 6.27 Comments by other parties.
Any party to a proceeding, other than the applicant and the
Department may file comments on an application within 30 days after it
is served or on an answer within 15 days after it is served. A
commenting party may not participate further in proceedings on the
application.
49 CFR 6.29 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded, in accordance with the
agency's standard settlement procedure. If a prevailing party and the
agency counsel agree on a proposed settlement of an award before an
application has been filed the application shall be filed with the
proposed settlement.
49 CFR 6.31 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the
applicant or agency counsel, or on his or her own initiative, the
administrative law judge may order further proceedings, such as an
informal conference, oral argument, additional written submissions or an
evidentiary hearing.
Such further proceedings shall be held only when necessary for full
and fair resolution of the issues arising from the application, and
shall be conducted as promptly as possible.
(b) A request that the administrative law judge order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
49 CFR 6.33 Decision.
The administrative law judge shall issue an initial decision on the
application as soon as possible after completion of proceedings on the
application. The decision shall also include, if at issue, findings on
whether the Department's position was substantially justified, whether
the applicant unduly protracted the proceedings, or whether special
circumstances make an award unjust. If the applicant has sought an
award against more than one agency, the decision shall allocate
responsibility for payment or any award made among the agencies, and
shall explain the reasons for the allocation made.
49 CFR 6.35 Agency review.
Where Department review of the underlying decision is permitted,
either the applicant or agency counsel, may seek review of the initial
decision on the fee application, or the Department may decide to review
the decision on its own initiative. If neither the applicant nor the
agency counsel seeks review within 30 days after the decision is issued,
it shall become final.
49 CFR 6.37 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
49 CFR 6.39 Payment of award.
An applicant seeking payment of an award from the Department of
Transportation or any of its operating administrations under this part
shall submit a copy of the Department of Transportation's or any of its
operating administration's final decisions granting the award,
accompanied by a statement that the applicant will not seek review of
the decision in the United States courts. The copy of the decision and
the statement should be submitted to the head of the affected operating
administration or the Secretary of Transportation, where the Department
of Transportation, Office of the Secretary, has initiated the
proceedings.
49 CFR 6.39 PART 7 -- PUBLIC AVAILABILITY OF INFORMATION
49 CFR 6.39 Subpart A -- Applicability and Policy
Sec.
7.1 Applicability.
7.3 Policy.
7.5 Definitions.
49 CFR 6.39 Subpart B -- General
7.11 Administration of part.
7.13 Records containing both available and unavailable information.
7.15 Protection of records.
49 CFR 6.39 Subpart C -- Time Limits
7.21 Initial determination.
7.23 Final determination.
7.25 Extension.
49 CFR 6.39 Subpart D -- Publication in the Federal Register
7.31 Applicability.
7.33 Publication required.
49 CFR 6.39 Subpart E -- Availability of Opinions, Orders, Staff
Manuals, Statements of Policy and Interpretations: Indices
7.41 Applicability.
7.43 Deletion of identifying detail.
7.45 Access to materials and indices.
7.47 Index of public materials.
7.49 Copies.
49 CFR 6.39 Subpart F -- Availability of Reasonably Described Records
7.51 Applicability.
7.53 Public availability of records.
7.55 Request for records of concern to more than one Government
organization.
7.57 Request for business information submitted by a private party.
49 CFR 6.39 Subpart G -- Exemptions
7.61 Applicability.
7.63 Records relating to matters that are required by Executive Order
to be kept secret.
7.65 Records related solely to internal personnel rules and
practices.
7.67 Records exempted from disclosure by statute.
7.69 Trade secrets and commercial or financial information obtained
from a person and privileged or confidential.
7.71 Intragovernmental exchanges.
7.73 Protection of personal privacy.
7.75 Records or information compiled for law enforcement purposes.
7.77 Reports of financial institutions.
7.79 Geological and geophysical information.
49 CFR 6.39 Subpart H -- Procedures for Appealing Decisions Not To
Disclose Records And/Or Waive Fees
7.81 General.
49 CFR 6.39 Subpart I -- Fees
7.91 General.
7.93 Payment of fees.
7.95 Fee schedule.
7.97 Services performed without charge or at a reduced charge.
7.99 Transcripts.
7.101 Copyrighted material.
7.103 Alternative sources of information.
Appendix A to Part 7 -- Office of The Secretary
Appendix B to Part 7 -- United States Coast Guard
Appendix C to Part 7 -- Federal Aviation Administration
Appendix D to Part 7 -- Federal Highway Administration
Appendix E to Part 7 -- Federal Railroad Administration
Appendix F to Part 7 -- National Highway Traffic Safety
Administration
Appendix G to Part 7 -- Urban Mass Transportation Administration
Appendix H to Part 7 -- Saint Lawrence Seaway Development Corporation
Appendix I to Part 7 -- Maritime Administration
Appendix J to Part 7 -- Research and Special Programs Administration
Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322.
Source: 53 FR 30268, Aug. 11, 1988, unless otherwise noted.
49 CFR 6.39 Subpart A -- Applicability and Policy
49 CFR 7.1 Applicability.
(a) This part implements section 552 of title 5, United States Code,
and prescribes rules governing the availability to the public of records
of the Department of Transportation.
(b) Subpart G of this part describes the records that are not
required to be disclosed under this part.
(c) Appendices A through J of this part:
(1) Describe the places and the times at which records will be
available for inspection and copying;
(2) Define the kinds of records located at each facility;
(3) Identify the location of the indices to such records; and
(4) Identify the officials having authority to deny requests for
disclosure of records under this part.
(d) The Office of the General Counsel may amend appendix A to this
part to reflect any changes in the items covered by that appendix. The
head of an operating element concerned may amend the appendix applicable
to that element to reflect any changes in the items covered by that
appendix.
(e) This part applies only to records that exist as of the date of
receipt of the request by the appropriate office, in accordance with
7.53 of this part. The Department is not required to create, compile or
procure a record solely for the purpose of making it available under
this part.
(f) Indices are maintained to reflect all records subject to subpart
E of this part, and are available for public inspection and copying as
provided in appendices A through J to this part.
(53 FR 30268, Aug. 11, 1988, as amended by Amdt. 7-1, 54 FR 10010,
Mar. 9, 1989)
49 CFR 7.3 Policy.
In implementing section 552 of title 5, United States Code, it is the
policy of the Department of Transportation to make information available
to the public to the greatest extent possible in keeping with the spirit
of that section. Therefore, all records of the Department, except those
that the Department specifically determines must not be disclosed in the
interest of national defense or foreign policy, for the protection of
private rights and commercial interests or for the efficient conduct of
public business to the extent permitted by the Freedom of Information
Act, are declared to be available for public inspection and copying as
provided in this part. Each officer and employee of the Department is
directed to cooperate to this end and to make records available to the
public promptly and to the fullest extent consistent with this policy.
A record may not be withheld from the public solely because its release
might suggest administrative error or embarrass an officer or employee
of the Department.
49 CFR 7.5 Definitions.
As used herein, unless the context requires otherwise:
Administrator means the head of each operating element of the
Department and includes the Commandant of the Coast Guard.
Department or DOT means the Department of Transportation, including
the Office of the Secretary and the following operating elements:
(a) The United States Coast Guard.
(b) The Federal Aviation Administration.
(c) The Federal Highway Administration.
(d) The Federal Railroad Administration.
(e) The National Highway Traffic Safety Administration.
(f) The Urban Mass Transportation Administration.
(g) The Saint Lawrence Seaway Development Corporation.
(h) The Maritime Administration.
(i) The Research and Special Programs Administration.
Record includes any writing, drawing, map, recording, tape, film,
photograph or other documentary material by which information is
preserved. The term also includes any such documentary material stored
by computer. However, the term does not include uncirculated personal
notes, papers and other documents created and retained solely for the
personal convenience of Departmental personnel and over which the agency
exercises no control. If a request is made for a personal record of a
DOT official or employee, that request is denied, since it is not within
the Department's authority to disclose such records and the Freedom of
Information Act does not apply to them. However, until the requester's
appeal and litigation rights expire, DOT retains a copy of such records
for the benefit of any reviewing court. This retention does not
constitute control as that term is used here.
Secretary means the Secretary of Transportation or any person to whom
the Secretary has delegated authority in the matter concerned.
49 CFR 7.5 Subpart B -- General
49 CFR 7.11 Administration of part.
Except as provided in subpart H of this part, authority to administer
this part in connection with the records of the Office of the Secretary
(including the Office of the Inspector General) and to issue
determinations with respect to initial requests for such records under
this part is delegated to the Assistant Secretary for Public Affairs.
Authority to administer this part in connection with records of each
operating element is delegated to each Administrator, who may redelegate
to officers of that element the authority to administer this part in
connection with defined groups of records. However, each Administrator
may redelegate the duties under subpart H of this part to consider
appeals of initial denials of requests for records only to his or her
deputy or to not more then one other officer who reports directly to the
Administrator and who is located at the headquarters of that operating
element.
49 CFR 7.13 Records containing both available and unavailable
information.
If a record contains information that the Department determines
cannot be disclosed, but also contains reasonably segregable information
that may not be withheld, the latter information shall be made
available.
49 CFR 7.15 Protection of records.
(a) No person may, without permission, remove any record made
available to him or her for inspection and copying under this part from
the place where it is made available. In addition, no person may steal,
alter, mutilate, obliterate or destroy, in whole or in part, such a
record.
(b) Section 641 of title 18 of the United States Code provides, in
pertinent part, for criminal penalties for embezzlement or theft of
government records.
(c) Section 2071 of title 18 of the United States Code provides, in
pertinent part, for criminal penalties for the willful and unlawful
concealment, mutilation or destruction of, or the attempt to conceal,
mutilate or destroy, government records.
49 CFR 7.15 Subpart C -- Time Limits
49 CFR 7.21 Initial determination.
An initial determination whether to release a record requested
pursuant to subpart F shall be made within ten working days after the
request is received by the appropriate office in accordance with section
7.53, except that this time limit may be extended by up to ten working
days in accordance with 7.25. The person making the request will be
notified immediately of such determination. If the determination is to
grant the request, the desired record shall be made available as
promptly as possible. If the determination is to deny the request the
person making the request shall be notified in writing, at the same time
he or she is notified of such determination, of the reason for the
determination; the right of such person to appeal the determination;
and the name and title of each person responsible for the initial
determination to deny the request.
49 CFR 7.23 Final determination.
A determination with respect to any appeal made pursuant to 7.81
shall be made within twenty working days after receipt of such appeal
except that this time limit may be extended by up to ten working days in
accordance with 7.25. The person making the request will be notified
immediately of such determination, pursuant to 7.81 of this part.
49 CFR 7.25 Extension.
In unusual circumstances as specified in this section, the time
limits prescribed in 7.21 and 7.23 may be extended by written notice
to the person making the request setting forth the reasons for such
extension and the date on which a determination is expected to be
dispatched. Such notice may not specify a date that would result in a
cumulative extension of more than ten working days. As used in this
subparagraph, ''unusual circumstances'' means, but only to the extent
reasonably necessary to the proper processing of the particular request:
(a) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(b) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(c) The need for consultation, which shall be conducted with all
practicable speed, with any other agency or DOT operating element having
a substantial interest in the determination of the request or among two
or more components of the agency having substantial subject-matter
interest therein.
49 CFR 7.25 Subpart D -- Publication in Federal Register
49 CFR 7.31 Applicability.
This subpart implements section 552(a)(1) of title 5, United States
Code, and prescribes rules governing the publication in the Federal
Register of the following:
(a) Descriptions of the organization of the Department, including its
operating elements and the established places at which, the officers
from whom, and the methods by which, the public may secure information
and make submittals or requests or obtain decisions;
(b) Statements of the general course and methods by which the
Department's functions are channeled and determined, including the
nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the places
at which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized
by law and statements of general policy or interpretations of general
applibability formulated and adopted by the Department; and
(e) Each amendment, revision, or repeal of any material listed in
paragraphs (a) through (d) of this section.
49 CFR 7.33 Publication required.
(a) General. The material described in 7.31 shall be published in
the Federal Register. For the purposes of this paragraph, material that
will reasonably be available to the class of persons affected by it will
be considered to be published in the Federal Register if it has been
incorporated by reference therein with the approval of the Director of
the Federal Register.
(b) Effect of nonpublication. Except to the extent that a person has
actual and timely notice of the terms thereof, no person may in any
manner be required to resort to, or be adversely affected by, any
procedure or matter required to be published in the Federal Register,
but not so published.
49 CFR 7.33 Subpart E -- Availability of Opinions, Orders, Staff Manuals, Statements of Policy and Interpretations: Indices
49 CFR 7.41 Applicability.
(a) This subpart implements section 552(a)(2) of title 5, United
States Code. It prescribes the rules governing the availability, for
public inspection and copying, of the following:
(1) Any final opinion (including a concurring or dissenting opinion)
or order made in the adjudication of a case.
(2) Any policy or interpretation that has been adopted under the
authority of the Department, including any policy or interpretation
concerning a particular factual situation, if that policy or
interpretation can reasonably be expected to have precedential value in
any case involving a member of the public in a similar situation.
(3) Any administrative staff manual or instruction to staff that
affects any member of the public, including the prescribing of any
standard, procedure, or policy that, when implemented, requires or
limits any action of any member of the public or prescribes the manner
of performance of any activity by any member of the public. However,
this does not include staff manuals or instructions to staff concerning
internal operating rules, practices, guidelines and procedures for
Departmental inspectors, investigators, law enforcement officers,
examiners, auditors, and negotiators and other information developed
predominantly for internal use, the release of which could significantly
risk circumvention of agency regulations or statutes. Indices of
materials listed in this paragraph shall be maintained as specified in
appendices A-J of this part.
(b) Any material listed in paragraph (a) of this section that is not
made available for public inspection and copying, or that is not indexed
as required by 7.45, may not be cited, relied on, or used as precedent
by the Department to adversely affect any member of the public unless
the person to whose detriment it is relied on, used, or cited has had
actual timely notice of that material.
(c) This subpart does not apply to material that is published in the
Federal Register or is covered by subpart G of this part.
49 CFR 7.43 Deletion of identifying detail.
Whenever it is determined to be necessary to prevent a clearly
unwarranted invasion of personal privacy, identifying details shall be
deleted from any record covered by subpart E of this part that is
published or made available for inspection. A full explanation of the
justification for the deletion shall accompany the record published or
made available for inspection.
49 CFR 7.45 Access to materials and indices.
(a) Except as provided in paragraph (b) of this section, material
listed in 7.41(a) shall be made available for inspection and copying by
any member of the public at document inspection facilities of the
Department. The index of materials available at each facility shall be
published in the Federal Register quarterly and shall also be located at
the facility. Information as to the kinds of materials available at
each facility may be obtained from the facility or the headquarters of
the operating element of which it is a part.
(b) The material listed in 7.41(a) that is published and offered for
sale shall be indexed, but is not required to be kept available for
public inspection. Whenever practicable, however, it will be made
available for public inspection at any document inspection facility
maintained by the Office of the Secretary or an operating element,
whichever is concerned.
49 CFR 7.47 Index of public materials.
The index of material subject to public inspection and copying under
this subpart shall cover all material issued, adopted, or promulgated
after July 4, 1967; however, earlier material may be included in the
index to the extent practicable. Each index shall contain instructions
on how to use it.
49 CFR 7.49 Copies.
Copies of any material covered by this subpart that is not published
and offered for sale may be ordered, upon payment of the appropriate
fee, from the office indicated in 7.53. Copies will be certified upon
request and payment of the fee prescribed in 7.95(f).
49 CFR 7.49 Subpart F -- Availability of Reasonably Described Records
49 CFR 7.51 Applicability.
This subpart implements section 552(a)(3) of title 5, United States
Code, and prescribes the regulations governing public inspection and
copying of reasonably described records.
49 CFR 7.53 Public availability of records.
(a) Each person desiring access to or a copy of a record covered by
this subpart shall comply with the following provisions:
(1) A written request must be made for the record.
(2) Such request should indicate that it is being made under the
Freedom of Information Act.
(3) The envelope in which the request is sent should be prominently
marked: ''FOIA.''
(4) The request should be addressed to the appropriate office as set
forth in paragraph (c) of this section.
(b) If the requirements of paragraph (a) of this section are not met,
treatment of the request will be at the discretion of the agency. The
ten-day time limit described in 7.21 shall not start to run until the
request has been identified, or would have been identified with the
exercise of due diligence, by an employee of the Department as a request
pursuant to the Freedom of Information Act and has been received by the
office to which it should have been originally sent.
(c) Each person desiring access to or a copy of a record covered by
this subpart that is located in the Office of the Secretary shall make a
written request to the Assistant Secretary for Public Affairs, U.S.
Department of Transportation, 400 Seventh Street SW., Washington, DC
20590. Each person desiring access to or a copy of a record covered by
this subpart that is located in an operating element shall make a
written request to that element at the address set forth in the
applicable appendix to this part. It the person making the request does
not know where in the Department the record is located, he or she may
make inquiry of the Assistant Secretary for Public Affairs as to its
location.
(d) Each request should describe the particular record to the fullest
extent possible. The request should describe the subject matter of the
record, and, if known, indicate the date when it was made, the place
where it was made, and the person or office that made it. If the
description does not enable the office handling the request to identify
or locate the record sought, that office shall notify the person making
the request and, to the extent possible, indicate the additional data
required.
(e) Each record made available under this subpart shall be made
available for inspection and copying during regular business hours at
the place where it is located, or photocopying may be arranged with the
copied materials being mailed to the requester upon payment of the
appropriate fee. Original records ordinarily will be copied except in
those instances where, in the Department's judgment, copying would
endanger the quality of the original or raise the reasonable possibility
of irreparable harm to the record. In these instances, copying of the
original would not be in the public interest. In any event, original
records will not be released from custody.
(f) If a requested record is known not to exist in the files of the
agency, or to have been destroyed or otherwise disposed of, the
requester shall be so notified.
(g) Fees will be determined in accordance with subpart I and the
applicable appendix or appendices to this part.
(h) Notwithstanding paragraphs (a) through (g) of this section,
informational material, such as news releases, pamphlets and other
materials of that nature that are ordinarily made available to the
public as a part of any information program of the Government will be
available upon oral or written request. There will be no fee for
individual copies of that material so long as they are in supply. In
addition, the Department will continue to respond, without charge, to
routine oral or written inquiries that do not involve the furnishing of
records.
49 CFR 7.55 Request for records of concern to more than one Government
organization.
(a) If the release of a record covered by this subpart would be of
concern to both this Department and another Federal agency, the
determination as to release will be made only after consultation with
the other interested agency.
(b) If the release of the record covered by this subpart would be of
concern to both this Department and a State or local government, a
territory or possession of the United States, or a foreign government,
the determination as to release will be made by the Department only
after consultation with the other interested State or local government
or foreign government.
(c) Whenever a request is made for: (1) A record containing
information that has been classified by another Federal agency or that
may be eligible for classification by such an agency; or (2) a record
containing information that relates to an investigation of a possible
violation of criminal law or to a law enforcement proceeding and that
was generated or originated by another Federal agency, the Office of the
Secretary or the responsible operating element, whichever the case be,
shall refer the request, or the portion thereof that pertains to the
record in question, to the originating agency for a releasability
determination. The requester shall be notified of the referral and
informed of the name and address of the agency to which the request, or
portion thereof, has been referred, unless such notification might
jeopardize a law enforcement proceeding or have an adverse effect on
national security matters.
49 CFR 7.57 Request for business information submitted by a private
party.
(a) If a request is received for information which has been
designated by the submitted as confidential commercial information, or
which the Department has some other reason to believe may contain trade
secrets or other commercial or finanical information of the type
described in 7.69 of subpart G, the submitter of such information
shall, except as is provided in paragraphs (c) and (d) of this section,
be notified expeditiously and asked to submit any written objections to
release. At the same time, the requester shall be notified that notice
and an opportunity to comment are being provided to the submitter. The
submitter shall, to the extent permitted by law, be afforded a
reasonable period of time within which to provide a detailed statement
of any such objections. The submitter's statement shall specify all
grounds for withholding any of the information. The burden shall be on
the submitter to identify all information for which exempt treatment is
sought and to persuade the agency that the information should not be
disclosed.
(b) The Office of the Secretary or the responsible operating element,
whichever the case may be, shall, to the extent permitted by law,
consider carefully a submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose business
information. Whenever a decision is made to disclose the business
information over the objection of a submitter, the office responsible
for the decision shall forward to the submitter a written notice which
shall include:
(1) A statement of the reasons for which the submitter's disclosure
objections were not substained;
(2) A description of the business information to be disclosed; and
(3) A specific disclosures date.
Such notice of intent to disclose shall, to the extent permitted by
law, be forwarded to the submitter a reasonable number of days prior to
the specified date upon which disclosure is intended. At the same time
the submitter is notified, the requester shall be notified of the
decision to disclose information.
(c) The notice requirements of this section shall not apply if:
(1) The office responsible for the decision determines that the
information should not be disclosed;
(2) The information lawfully has been published or otherwise made
available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552).
(d) The procedures established in this section shall not apply in the
case of:
(1) Business information submitted to the National Highway Traffic
Safety Administration.
(2) Information contained in a document to be filed or in oral
testimony that is sought to be withheld pursuant to Rule 39 of the Rules
of Practice (14 CFR 302.39), and in Aviation Economic Proceedings.
(e) Whenever a requester brings suit seeking to compel disclosure of
confidential commercial information, the Office of the Secretary or the
responsible operating element, whichever the case may be, shall promptly
notify the submitter.
49 CFR 7.57 Subpart G -- Exemptions
49 CFR 7.61 Applicability.
This subpart implements section 552(b) of title 5, United States
Code, which exempts certain records from the public disclosure
requirements of section 552(a). The Department will, however, release a
record authorized to be withheld under 7.65 through 7.79 unless it
determines that the release of that record would be inconsistent with a
purpose of the section concerned. Examples given in 7.63 through 7.79
of records included within a particular statutory exemption are only
illustrative and do not define all types of records covered by the
exemption.
49 CFR 7.63 Records relating to matters that are required by Executive
Order to be kept secret.
Records relating to matters that are specifically authorized to be
kept secret in the interest of national defense or foreign policy shall
be exempt from public disclosure. Records exempt under this provision
include but are not limited to those within the scope of the following,
and any further amendment of any of them, but only to the extent that
the records are in fact properly classified pursuant to such Executive
Order. These records shall not be made available for public inspection.
(a) Executive Order 12356 of April 2, 1982 (3 CFR, 1982 Comp., p.
166);
(b) Executive Order 12065 of June 28, 1978, as as amended, (3 CFR,
1978 Comp., p. 190);
(c) Executive Order 11652 of March 8, 1972 (3 CFR, 1971-1975 Comp.,
p. 678);
(d) Executive Order 10865 of February 20, 1960 (3 CFR, 1959-1963
Comp., p. 398);
(e) Executive Order 10501 of November 5, 1953 (3 CFR, 1949-1953
Comp., p. 979); and
(f) Executive Order 10104 of February 1, 1950 (3 CFR, 1949-1953
Comp., p. 298).
49 CFR 7.65 Records related solely to internal personnel rules and
practices.
(a) Records related solely to internal personnel rules and practices
that are within the statutory exemption include memoranda pertaining to
personnel matters such as staffing policies and policies and procedures
for the hiring, training, promotion, demotion, and discharge of
employees, and management plans, records, or proposals involving
labor-management relationships. Also included within the statutory
exemption are staff manuals or instructions concerning predominantly
internal operating rules, practices, guidelines, procedures, and
administrative data and handling instructions for Departmental personnel
such as inspectors, investigators, examiners, auditors, and negotiators.
(b) The purpose of this section is to authorize the protection of
those records in which there is slight public interest or which, if
released, would substantially impair the performance of duties of
Departmental employees or significantly risk circumvention of agency
regulations or statutes.
49 CFR 7.67 Records exempted from disclosure by statute.
(a) Records relating to matters that are specifically exempted from
disclosure by statute (other than section 552(b) of title 5, United
States Code) include, but are not limited to, those covered by the
following:
(1) Section 3771 of title 18, United States Code, in conjunction with
Rule 6(e) of the Federal Rules of Criminal Procedure, protecting grand
jury material.
(2) Section 106 of the Highway Safety Act of 1966 (Pub. L. 89-564, 80
Stat. 731), protecting information identifying individuals who are the
subject of highway traffic accident investigations.
(3) Section 206(c)(1) of the National Driver Register Act of 1982 (23
U.S.C. 401 (note)) and the National Driver Register Act, Pub. L.
86-660, as amended (23 U.S.C. 313 (note)), protecting information
concerning individuals included in reports of State driver licensing
officials to the Department.
(4) Section 3315(b) of title 46, United States Code, protecting the
source of reports of defects and imperfections of vessels.
(5) Section 7319 of title 46, United States Code, protecting the
names, addresses, and next of kin of merchant seamen and entries made in
records pertaining to merchant seamen.
(6) Section 10311(d) of title 46, United States Code, protecting
records of the discharge of merchant seamen.
(7) Section 1173(c)(1)(D)(3) of title 46, United States Code,
protecting wage and benefit cost data for employees covered by
collective-bargaining agreements for vessels receiving
operating-differential subsidy payments.
(8) Section 1173(d) of title 46, United States Code, protecting
certain foreign wage cost computations associated with the operation of
foreign vessels.
(9) Section 6102 of title 46, United States Code, protecting
information derived from boating safety accident reports compiled by a
State.
(10) Section 316(d)(2) of the Federal Aviation Act of 1958, as
amended (49 U.S.C. 1357(d)(2)), protecting information obtained or
generated in the conduct of research and development of systems and
procedures to protect persons and property aboard aircraft.
(11) Section 902(f) of the Federal Aviation Act of 1958, as amended
(49 U.S.C. 1472(f)), relating to information obtained by examining the
accounts, records, or memoranda of an air carrier.
(12) Section 1001 of the Federal Aviation Act of 1958, as amended (49
U.S.C. 1481), so far as it relates to the secrecy of acts and
proceedings when requested on grounds of national defense.
(13) Section 1104 of the Federal Aviation Act of 1958, as amended (49
U.S.C. 1504), protecting information, which, if disclosed, would
prejudice the formulation and presentation of positions of the United
States in international aviation negotiations or adversely affect the
competitive position of any United States air carrier in foreign air
transportation.
49 CFR 7.69 Trade secrets and commercial or financial information
obtained from a person and privileged or confidential.
(a) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential are within this statutory
exemption. This includes:
(1) Commercial or financial information which, if disclosed, is
likely to cause substantial harm to the competitive position of the
submitter of the requested information;
(2) Commercial or financial information which if disclosed, is likely
to impair the Government's ability to obtain necessary information in
the future through purely voluntary cooperation;
(3) Commercial or financial information customarily subjected to an
attorney-client or similar evidentiary privilege; or
(4) Information that constitutes a trade secret.
(5) Commercial or financial information which, if disclosed, would
impair any other identifiable government interest or hinder agency
officials in carrying out their mandate.
(b) The purpose of this section is to exempt from mandatory
disclosure trade secrets and commercial or financial information
obtained from a person and privileged or confidential. This section
assures the confidentiality of trade secrets and commercial or financial
information obtained by the Department through questionnaires and
required reports to the extent that the information would not
customarily be made public by the person from whom it was obtained. In
any case in which the Department has obligated itself not to disclose
trade secrets and commercial or financial information it receives, this
section indicates the Department's intention to honor that obligation to
the extent permitted by law. In addition, this section recognizes that
certain materials, such as research data and materials, formulae,
designs, and architectural drawings, have significance as items of
property acquired, in many cases, at public expense. Such material may
be treated as exempt from mandatory disclosure in any case in which
similar proprietary material in private hands would be held in
confidence. To the extent feasible, any person submitting information
to the Department which may qualify for this exemption should request
that the information not be disclosed.
49 CFR 7.71 Intragovernmental exchanges.
(a) Any record prepared by a Government officer or employee
(including those prepared by a consultant or advisory body) for internal
Government use is within the statutory exemption to the extent it
contains:
(1) Opinions, advice, deliberations, or recommendations made in the
course of developing official action by the Government, but not actually
made a part of that official action.
(2) Confidential communications between a Government attorney or an
attorney acting on behalf of the Government and his or her client
relating to a legal matter for which the client has sought professional
advice.
(3) Information prepared by a Government attorney or an attorney
acting on behalf of the Government in anticipation of litigation.
(4) Confidential commercial information generated by the Government
where disclosure of such information would prejudice the Government's
bargaining position in commercial transactions.
Examples of records covered by this section include staff memoranda
containing advice, opinions, recommendations, suggestions, or exchanges
of views, preliminary to final agency decision or action, with the
exception of factual information, unless such information is
inextricably intertwined with deliberative material; draft documents
such as draft versions of audit reports prepared by the Office of
Inspector General; appraisals of property to be condemned by the
Government; legal opinions and/or advice rendered by a Government
attorney or an attorney acting on behalf of the Government and based on
information communicated in confidence by the client; memoranda and
other documents prepared by a Government attorney or an attorney acting
on behalf of the Government setting forth strategy with regard to
pending or probable future litigation and not otherwise made a matter of
public record in a particular legal proceeding; and material intended
for public release at a specified future time, if premature disclosure
would be detrimental to orderly decisionmaking by the Department.
(b) The purpose of this section is to protect internal records that
are not routinely available by law to another party in litigation with
the Government.
49 CFR 7.73 Protection of personal privacy.
(a) Any of the following personnel, medical or similar records are
within the statutory exemption if disclosure would result in a clearly
unwarranted invasion of personal privacy:
(1) Personnel and background records personal to any officer or
employee of the Department, or other person, including his or her
residential address.
(2) Medical histories and medical records concerning individuals,
including applicants for licenses.
(3) Any other detailed record containing personal information
identifiable with a particular person.
(b) The purpose of this section is to provide a proper balance
between the protection of personal privacy and the preservation of the
public's right to Department information by authorizing the protection
of intimate details of a personal nature which, if released, might
unjustifiably invade an individual's privacy.
49 CFR 7.75 Records or information compiled for law enforcement
purposes.
(a) Files compiled for law enforcement purposes by the Department or
any other Federal, State, or local agency, including those files
compiled for the enforcement of regulations, are within the statutory
exemption to the extent that production of such records or information
could reasonably be expected to interfere with enforcement proceedings;
would deprive a person of a right to a fair trial or an impartial
adjudication; could reasonably be expected to constitute an unwarranted
invasion of personal privacy; could reasonably be expected to disclose
the identity of a confidential source and, in the case of a record
compiled for a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source; would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines
for law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law; or could
reasonably be expected to endanger the life or physical safety of any
individual.
(b) The purpose of this section is to protect law enforcement files
from premature disclosure, including files prepared in connection with
related judicial or administrative proceedings. It includes the
enforcement not only of criminal statutes but all kinds of laws and
regulations.
49 CFR 7.77 Reports of financial institutions.
Any material contained in or related to any examination, operating,
or condition report prepared by, or on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions is within the statutory exemption.
49 CFR 7.79 Geological and geophysical information.
Any geological or geophysical information and data (including maps)
concerning wells is within the statutory exemption.
49 CFR 7.79 Subpart H -- Procedures for Appealing Decisions Not To Disclose Records and/or Waive Fees
49 CFR 7.81 General.
(a) Each officer or employee of the Department who, upon a request by
a member of the public for a record under this part, makes a
determination that the record is not to be disclosed, shall give a
written statement of the reasons for that determination to the person
making the request; and indicate the names and titles or positions of
each person responsible for the initial determination not to comply with
such request, and the availability of an appeal within the Department.
(b) When a request for waiver of fees, pursuant to 7.97(c) of this
part, has been denied in whole or in part, the requester may appeal the
denial.
(c) Any person to whom a record has not been made available within
the time limits established by subpart C and any person who has been
given a determination pursuant to paragraph (a) of this section that a
record he or she requested will not be disclosed may appeal to the head
of the operating element concerned or, in the case of the Office of the
Secretary, to the General Counsel of the Department. Any person who has
not received an initial determination on his or her request within the
time limits established by subpart C can seek immediate judicial review.
Judicial review may be sought without the need to submit first an
administrative appeal. Judicial review may be sought in the United
States District Court for the judicial district in which the requester
resides or has his or her principal place of business, the judicial
district in which the records are located, or in the District of
Columbia. A determination that a record will not be disclosed and/or
that a request for a fee waiver or reduction will not be granted does
not constitute final agency action for the purpose of judicial review
unless:
(1) It was made by the head of the operating element concerned (or
his or her designee), or the General Counsel, as the case may be; or
(2) The applicable time limit has passed without a determination on
the initial request or the appeal, as the case may be, having been made.
(d) Each appeal must be made in writing within thirty days from the
date of receipt of the original denial and should include all
information and arguments relied upon by the person making the request.
Such letter should indicate that it is an appeal from a denial of a
request made under the Freedom of Information Act. The envelope in
which the appeal is sent should be prominently marked: ''FOIA Appeal.''
If these requirements are not met, the twenty-day limit described in
7.23 will not begin to run until the appeal has been identified, or
would have been identified with the exercise of due diligence, by an
employee of the Department as an appeal under the Freedom of Information
Act and has been received, or should have been received, by the
appropriate office.
(e) Whenever the head of the operating element concerned, or the
General Counsel, as the case may be, determines it to be necessary, he
or she may require the person making the request to furnish additional
information, or proof of factual allegations, and may order other
proceedings appropriate in the circumstances. The decision of the head
of the operating element concerned, or the General Counsel, as the case
may be, as to the availability of the record or the appropriateness of a
fee waiver or reduction constitutes final agency action for the purpose
of judicial review.
(f) The decision of the head of the operating element concerned, or
the General Counsel, as the case may be, not to disclose a record under
this part or not to grant a request for a fee waiver or reduction is
considered to be a denial by the Secretary for the purpose of section
552(a)(4)(B) of title 5, United States Code.
(g) Any final determination by the head of an operating element or
his or her delegee identified in appendices B through J of this part,
not to disclose a record under this part, or not to grant a request for
a fee waiver or reduction, is subject to concurrence by the General
Counsel or his or her designee.
(h) Upon a determination that an appeal will be denied, the requester
shall be informed in writing of the reasons for the denial of the
request, and the names and titles or positions of each person
responsible for the determination, and that judicial review of the
determination is available in the United States District Court for the
judicial district in which the requester resides or has his or her
principal place of business, the judicial district in which the
requested records are located, or the District of Columbia.
49 CFR 7.81 Subpart I -- Fees
49 CFR 7.91 General.
(a) This subpart prescribes fees for services performed for the
public under subparts E and F of this part by the Department.
(b) All terms defined by the Freedom of Information Act apply to this
subpart, and the term ''hourly rate'' means the actual hourly base pay
for a civilian employee or, for members of the Coast Guard, the
equivalent hourly pay rate computed using a 40 hour week and the
member's normal basic pay and allowances.
(c) This subpart applies to all employees of the Department,
including those of non-appropriated fund activities of the United States
Coast Guard and the Maritime Administration.
(d) This subpart does not apply to any special study, special
statistical compilation, table, or other record requested under 49
U.S.C. 329(c). The fee for the performance of such a service is the
actual cost of the work involved in compiling the record. All such fees
received by the Department in payment of the cost of such work are
deposited in a separate account administered under the direction of the
Secretary, and may be used for the ordinary expenses incidental to
providing the information.
(e) This subpart does not apply to requests from record subjects for
records about themselves filed in Departmental systems of records. Fees
for such requests are to be determined in accordance with the Privacy
Act of 1974, as implemented by Department of Transportation regulations
(49 CFR part 10).
49 CFR 7.93 Payment of fees.
(a) The fees prescribed in this subpart may be paid by check, draft,
or money order, payable to the Treasury of the United States. However,
in the case of the Saint Lawrence Seaway Development Corporation, all
fees resulting from a request to that operating element shall be made
payable to the Saint Lawrence Seaway Development Corporation.
(b) Charges may be assessed by the Department for time spent
searching for requested records even if the search fails to locate the
records or the records located are determined to be exempt from
disclosure. In addition, if records are requested for commercial use,
the Department may assess a fee for time spent reviewing any responsive
records located to determine whether they are exempt from disclosure.
(c) When it is estimated that the search charges, review charges,
duplication fees or any combination of fees that could be charged to the
requester will likely exceed $25, the requester shall be notified of the
estimated amount of the fees, unless the requester has indicated in
advance his or her willingness to pay fees as high as those anticipated.
The notice shall also inform the requester how to consult with
appropriate Departmental officials with the object of reformulating the
request to meet his or her needs at a lower cost.
(d) Payment of fees may be required by the Department prior to actual
duplication of delivery of any releasable records to a requester.
However, advance payment of fees, i.e., payment before work is commenced
or continued on a request, may not be required unless:
(1) Allowable charges that a requester may be required to pay are
likely to exceed $250; or
(2) The requester has failed to pay within 30 days of the billing
date fees charged for a previous FOIA request.
(e) When paragraph (d)(1) of this section applies, the requester
shall be notified of the likely cost and, where he or she has a history
of prompt payment of FOIA fees, requested to furnish satisfactory
assurance of full payment. Where no history of payment exists, the
requester may be required to make advance payment of any amount up to
the full estimated charges.
(f) When paragraph (d)(2) of this section applies, the requester
shall be required to demonstrate that the fee has, in fact, been paid or
to pay the full amount owed, including any applicable interest, late
handling charges and penalty charges as discussed below. The requester
shall also be required to make an advance payment of the full amount of
the estimated fee before processing of a new request or continuation of
a pending request is begun.
(g) The Department will assess interest on an unpaid bill starting on
the 31st day following the day on which the notice of the amount due is
first mailed to the requester. Interest will accrue from the date of
the notice of amount due and will be at the rate prescribed in section
3717 of title 31, U.S.C. Receipt by the Department of a payment for the
full amount of the fees owed within 30 calendar days after the date of
the initial billing will stay the accrual of interest, even if the
payment has not been processed.
(h) If payment of fees charged is not received within 30 calendar
days after the date the initial notice of the amount due is first mailed
to the requester, an administrative charge will be assessed by the
Department to cover the cost of processing and handling the delinquent
claim. In addition, a penalty charge will be applied with respect to
any principal amount of a debt that is more than 90 days past due.
Where appropriate, other steps permitted by federal debt collection
statutes, including disclosure to consumer reporting agencies and use of
collection agencies, will be utilized by the Department to encourage
payment of amounts overdue.
(i) In any instance where the Department reasonably believes that a
requester or a group of requesters acting in concert is attempting to
break down a single FOIA request into a series of requests for the sole
purpose of evading the payment of otherwise applicable fees, the
Department will aggregate the requests and determine the applicable fees
on the basis of the aggregation.
(j) Notwithstanding any other provision of this subpart, when the
total amount of fees that could be charged for a particular request (or
aggregation of requests) under subpart F, after taking into account all
services which must be provided at no charge or at a reduced charge, is
less than $10.00 the Department will not make any charge for fees.
49 CFR 7.95 Fee schedule.
(a) The standard fee for a manual search to locate a record requested
under subpart F of this part, including making it available for
inspection, will be determined by multiplying each searcher's hourly
rate plus 16 percent by the time spent conducting the search.
(b) The standard fee for a computer search for a record requested
under subpart F of this part is the actual cost. This includes the cost
of operating the central processing unit (CPU) for the time directly
attributable to searching for records responsive to a FOIA request and
the operator/programmer salary (hourly rate plus 16 percent) costs
apportionable to the search.
(c) The standard fee for review of records requested under subpart F
of this part is the reviewer's hourly rate plus 16 percent multiplied by
the time he or she spent determining whether the requested records are
exempt from mandatory disclosure.
(d) The standard fee for duplication of a record requested under
subpart F of this part is determined as follows:
(1) Per copy of each page (not larger than 8 1/2 14 inches)
reproduced by photocopy or similar methods (includes costs of personnel
and equipment), $0.10.
(2) Per copy prepared by computer, such as tapes or printout, Actual
costs, including operator time.
(3) Per copy prepared by any other method of duplication, Actual
direct cost of production.
(e) Depending upon the category of requester, and the use for which
the records are requested, in some cases the fees computed in accordance
with the above standard fee schedule must either be reduced or not
charged, as prescribed by other provisions of this subpart.
(f) The following special services not required by the FOIA may be
made available upon request, at the stated fees:
Certified copies of documents, with Department of Transportation or
operating element seal (where authorized), $4.00, or true copy, without
seal, $2.00.
49 CFR 7.97 Services performed without charge or at a reduced charge.
(a) No fee is to be charged to any requester making a request under
subpart F for the first two hours of search time unless the records are
requested for commercial use. For purposes of this subpart, when a
computer search is required two hours of search time will be considered
spent when the hourly costs of operating the central processing unit
used to perform the search added to the computer operator's salary cost
(hourly rate plus 16 per cent) equals two hours of the computer
operator's salary costs (hourly rate plus 16 percent).
(b) No fee is to be charged for any time spent searching for a record
requested under subpart F if the records are not for commercial use and
the requester is a representative of the news media, an educational
institution whose purpose is scholarly research, or a non-commercial
scientific institution whose purpose is scientific research.
(c) No fee is to be charged for duplication of the first 100 pages
(standard paper, not larger than 8 1/2 14 inches) of records provided to
any requester in response to a request under subpart F unless the
records are requested for commercial use.
(d) No fee is to be charged to any requester for review of a record
requested under subpart F to determine whether it is exempt from
disclosure unless the records are requested for commercial use. A
review charge may not be charged except with respect to an initial
review to determine the applicability of a particular exemption to a
particular record or portion of a record. A review charge may not be
assessed for review at the administrative appeal level. When records or
portions of records withheld in full under an exemption which is
subsequently determined not to apply are reviewed again to determine the
applicability of other exemptions not previously considered, this is
considered an initial review for purposes of assessing a review charge.
(e) Documents will be furnished without charge or at a reduced charge
if the Assistant Secretary for Public Affairs, or his or her designee,
or official(s) having initial denial authority, as the case may be,
determine that disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester.
(f) Factors to be considered by officials of the Department
authorized to determined whether a waiver or reduction of fees will be
granted include:
(1) Whether the subject matter of the requested records concerns the
operations or activities of the Federal government;
(2) Whether the disclosure is likely to contribute to an
understanding of Federal government operations or activities;
(3) Whether disclosure of the requested information will contribute
to the understanding of the public at large, as opposed to the
individual understanding of the requester or a narrow segment of
interested persons;
(4) Whether the contribution to public understanding of Federal
government operations or activities will be significant;
(5) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and
(6) Whether the magnitude of any identified commercial interest of
the requester is sufficiently large in comparison with the public
interest in disclosure that disclosure is primarily in the commercial
interest of the requester.
49 CFR 7.99 Transcripts.
Transcripts of hearings or oral arguments are available for
inspection. Where transcripts are prepared by a nongovernmental
contractor, and the contract permits the Department to handle the
reproduction of further copies, subpart I applies. Where the contract
for transcription services reserves the sales privilege to the reporting
service, any duplicate copies must be purchased directly from the
reporting service.
49 CFR 7.101 Copyrighted material.
Unless approval is secured from the copyright holder, the Department
will not reproduce or otherwise disseminate a copy of a copyrighted work
to a requester under the FOIA. However, the Department will make
arrangements to enable a requester to review the copyrighted work at a
Departmental facility.
49 CFR 7.103 Alternative sources of information.
In the interest of making documents of general interest publicly
available at as low a cost as possible, alternative sources shall be
arranged whenever possible. In appropriate instances, material that is
published and offered for sale may be obtained from the Superintendent
of Documents, U.S. Government Printing Office, Washington, DC 20402;
the U.S. Department of Commerce's National Technical Information Service
(NTIS), Springfield, Virginia 22151; or the National Audio-Visual
Center, National Archives and Records Administration, Capital Heights,
MD 20743-3701.
49 CFR 7.103 Pt. 7, App. A
49 CFR 7.103 Appendix A to Part 7 -- Office of The Secretary
1. General. This appendix describes the location and hours of
operation of the document inspection facility of the Office of the
Secretary (OST); the kinds of records that are available for public
inspection and copying at the facility; and the procedures by which
members of the public may make requests for records.
2. Document Inspection Facilities. The document inspection facility
for records of the Office of the Secretary other than those required to
be filed in connection with docketed aviation economic matters is
maintained by the Office of the General Counsel, Suite 9421 of the
Headquarters Building, located at 400 Seventh Street, SW., Washington,
DC 20590. This facility is open to the public from 9:00 a.m. to 5:00
p.m. ET, Monday through Friday, except legal public holidays and other
special closings. The document inspection facility for documents
required to be filed in connection with docketed aviation economic
matters is maintained by the Documentary Services Division, Office of
the General Counsel, Suite 4107 of the Headquarters Building. This
facility is open to the public from 9:00 a.m. to 5:00 p.m. ET, Monday
through Friday, except legal public holidays and other special closings.
3. Records available through the document inspection facilities. The
following records are available through the document inspection
facilities:
(a) Any material issued by the Office of the Secretary and published
in the Federal Register, including regulations.
(b) Final opinions (including concurring or dissenting opinions) and
orders made in the adjudication of cases and issued by the Office of the
Secretary.
(c) Any policy or interpretation issued by the Office of the
Secretary, including any policy or interpretation concerning a
particular factual situation, if that policy or interpretation can
reasonably be expected to have precedential value in any case involving
a member of the public in a similar situation.
(d) Any administrative staff manual or instruction to staff, issued
by the Office of the Secretary, that affects any member of the public,
including the prescribing of any standard, procedure, or policy that,
when implemented, requires or limits any action of any member of the
public or prescribes the manner of performance of any activity by any
member of the public.
(e) Formal pleadings filed in connection with docketed aviation
economic proceedings, including applications, complaints, motions,
petitions, answers, comments and replies.
(f) DOT Orders. DOT orders that are issued by the Department and
used primarily to promulgate internal DOT policy, instructions, and
general guidance.
(g) DOT Notices. DOT notices that are issued by the Department and
contain short-term instructions or information that is scheduled to
remain in effect for fewer than 90 days or for a predetermined period of
time normally not to exceed one year.
(h) OST Orders. OST orders that are issued by the Office of the
Secretary (OST) and used primarily to promulgate internal OST policy,
instructions, and general guidance.
(i) OST Notices. OST notices that are issued by the Office of the
Secretary and contain short-term instructions or information which is
expected to remain in effect for fewer than 90 days or for a
predetermined period of time normally not to excees one year.
4. Requests for records under subpart F of this part. Each person
desiring to inspect an OST record, or to obtain a copy thereof, should
submit a written request to the Associate General Counsel, U.S.
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590. If it is unknown where in DOT the record(s) sought may be found,
the request may be submitted to the Associate General Counsel, who will
ensure the appropriate processing.
5. The official having authority to make determinations on requests,
pursuant to the Freedom of Information Act, is limited to the Associate
General Counsel or his or her designee.
6. Reconsideration of determinations not to disclose records and to
deny fee waivers. Any person who has been notified that a record or
part of a record that has been requested will not be disclosed or that a
request for a fee waiver or reduction will not be granted, either in
whole or in part, may appeal, in writing, to the General Counsel, U.S.
Department of Transportation, for reconsideration of that determination.
The decision of the General Counsel is administratively final.
(53 FR 30268, Aug. 11, 1988, as amended by Amdt. 7-1, 54 FR 10010,
Mar. 9, 1989)
49 CFR 7.103 Pt. 7, App. B
49 CFR 7.103 Appendix B to Part 7 -- United States Coast Guard
49 CFR 7.103 1. General.
This appendix describes the document inspection facilities of the
U.S. Coast Guard, the kinds of records that are available for public
inspection and copying at those facilities, and the procedures by which
members of the public may make requests for identifiable records.
49 CFR 7.103 2. Document Inspection Facilities
The document inspection facilities are located at the offices of the
Commandant and District Commanders. The address for each of these
facilities is set forth below. They are open to the public Monday
through Friday during the hours specified, except for legal public
holidays and other special closings. The States or regions within the
jurisdiction of each District are also provided.
Commandant (G-TIS), U.S. Coast Guard, Washington, DC 20593. The
facility is located at Coast Guard Headquarters, Management Analysis
Division, 2100 Second Street SW., Washington, DC 20593. 7:00 a.m.-3:30
p.m. ET.
Commander, First Coast Guard District, Coast Guard Building, 408
Atlantic Building, Boston, MA 02210. 8:00 a.m.-4:30 p.m. ET. (Maine,
Massachusetts, Connecticut, New Hampshire, Rhode Island, Vermont, New
Jersey (northeastern), and New York (eastern).
Commander, Second Coast Guard District, 1430 Olive Street, St.
Louis, MO 63103. 8:45 a.m.-5:15 p.m. CT. (Alabama (northern), Arkansas,
Colorado, Illinois (parts), Indiana (parts), Iowa, Kansas, Kentucky,
Minnesota (parts), Mississippi (northern), Missouri, Nebraska, North
Dakota, Ohio (parts), Oklahoma, Pennsylvania (western), South Dakota,
Tennessee, West Virginia, Wisconsin (western), and Wyoming)
Commander, Fifth Coast Guard District, Federal Office Building, 431
Crawford Street, Portsmouth, Virginia 23705. 8:00 a.m.-4:30 p.m. ET.
(Maryland, North Carolina, Virginia, New Jersey (southwestern),
Delaware, Pennsylvania (eastern), and the District of Columbia.
Commander, Seventh Coast Guard District, Federal Building, Room 1018,
51 SW. First Avenue, Miami, FL 33130. 8:00 a.m.-4:30 p.m. ET.
(Florida (parts), Georgia (parts), South Carolina, and Puerto Rico)
Commander, Eighth Coast Guard District, 500 Camp Street, New Orleans,
LA 70130. 7:45 a.m.-4:15 p.m. CT. (Alabama (parts), Florida
(northeastern), Georgia (southeastern), Louisiana, Mississippi (parts),
New Mexico, and Texas)
Commander, Ninth Coast Guard District, 1240 East Ninth Street,
Cleveland, OH 44199. 7:30 a.m.-4:00 p.m. ET. (Illinois (northeastern),
Indiana (northern), Michigan, Minnesota (northern), New York
(northwestern), Ohio (northern), Pennsylvania (northeastern), Wisconsin
(eastern))
Commander, Eleventh Coast Guard District, 400 Oceangate Boulevard,
Long Beach, CA 90882. 8:00 a.m.-4:30 p.m. PT. (Arizona, California,
Nevada, and Utah)
Commander, Thirteenth Coast Guard District, Federal Building, Room
3590. 915 Second Avenue, Seattle, WA 98174. 7:45 a.m.-4:15 p.m. PT.
(Idaho, Montana, Oregon, and Washington)
Commander, Fourteenth Coast Guard District, 300 Ala Moana Boulevard,
Honolulu, HI 96850. 6:30 a.m.-3:00 p.m. Hawaii -- Aleutian Standard
Time. (Hawaii)
Commander, Seventeenth Coast Guard District, Federal Building, 709
West 9th Street, Post Office Box 3-5000, Juneau, AK 99802. 8:00
a.m.-4:00 p.m. Alaska Time. (Alaska)
49 CFR 7.103 3. Records Available at Document Inspection Facilities
(a) The following records are available at any U.S. Coast Guard
document inspection facility:
(1) Final opinions and orders made in the adjudication of cases by
the Commandant, U.S. Coast Guard.
(2) U.S. Coast Guard numbered publications that affect any member of
the public, including the prescribing of any standard, procedure, or
policy that, when implemented, requires or limits any action of any
member of the public or prescribes the manner of performance of any
activity by any member of the public.
(b) Opinions and orders of administrative law judges are available at
the document inspection facility of the Office of the Commandant and the
district in which the administrative law judge is located.
(c) Policies and interpretations issued within the U.S. Coast Guard
(including any policy or interpretation concerning a particular factual
situation, if that policy or interpretation can reasonably be expected
to have precedential value in any case involving a member of the public
in a similar situation) are available at the document inspection
facility of the Office of the Commandant.
(d) An index of the records located at each facility is maintained at
that facility.
(e) The records and the index may be inspected at the facility,
without charge. Copies of records may be obtained upon payment of the
fee prescribed in Subpart I of this part.
49 CFR 7.103 4. Requests for Records Under subpart F of this part
Each person desiring to inspect a record, or obtain a copy thereof,
should submit the request in writing to the U.S. Coast Guard office at
which such record is located. The addresses of the Commandant and
District Commanders are listed in section 2 of this appendix. If the
office at which the record is located is unknown, the request may be
submitted to the Office of the Commandant at the address listed in
section 2 of this appendix. The following gives illustrations of types
of records and specifies where requests for such records are
appropriately addressed:
(a) Examples of records for which requests may properly be made to
either the Office of the Commandant, U.S. Coast Guard or office of the
appropriate District Commander include the following:
(1) Marine Casualty investigative records.
(2) Records of certificates and licenses issued.
(3) Merchant vessel inspection records.
(4) Records of merchant vessel documentation and recording of sales
and other dispositions.
(5) Records of U.S. Coast Guard property and contracts.
(b) Examples of records for which requests may properly be made only
to the Office of the Commandant, U.S. Coast Guard, include the
following:
(1) Central files of merchant seamen.
(2) Merchant vessel shipping articles.
(3) Merchant vessel equipment approvals.
(4) Merchant Marine Council proceedings.
(5) Great Lakes pilotage records.
(6) Central files of U.S. Coast Guard personnel.
(7) U.S. Coast Guard courts-martial records.
(8) U.S. Coast Guard vessel and shore station log books more than one
year old on January 1 of the year in which the request is made.
(c) Examples of records for which requests may properly be made only
to the appropriate District Commander include the following:
(1) Navigation and vessel inspection penalty action records.
(2) Search and rescue reports.
(3) Coast Guard vessel and shore station log books for the current
calendar year and the calendar year immediately preceding the current
year.
(4) Port safety and waterfront facility records.
(5) Aids to navigation records.
(6) Merchant vessel logbooks.
(7) Shipyard and factory inspection records.
49 CFR 7.103 5. Officials Having Initial Authority to Deny Requests.
The following officials have authority to make initial determinations
to deny requests for records:
(a) Field commanders.
(1) Commander, Atlantic Area.
(2) Commander, Pacific Area.
(3) Commander, First Coast Guard District.
(4) Commander, Second Coast Guard District.
(5) Commander, Fifth Coast Guard District.
(6) Commander, Seventh Coast Guard District.
(7) Commander, Eighth Coast Guard District.
(8) Commander, Ninth Coast Guard District.
(9) Commander, Eleventh Coast Guard District.
(10) Commander, Thirteenth Coast Guard District.
(11) Commander, Fourteenth Coast Guard District.
(12) Commander, Seventeenth Coast Guard District.
(13) Commander, Maintenance and Logistics Command Atlantic.
(14) Commander, Maintenance and Logistics Command Pacific.
(15) Superintendent, U.S. Coast Guard Academy.
(16) Commanding Officer, Coast Guard Yard.
(17) Commanding Officer, Coast Guard Training Center Cape May.
(18) Commanding Officer, Coast Guard Reserve Training Center.
(19) Commanding Officer, Coast Guard Pay and Personnel Center.
(b) Headquarters officials concerning records within their office.
(1) Chief, Plans and Evaluation Division (for records located within
the office of the Commandant, Chief of Staff, special staff divisions or
when a request involves records located in two or more offices).
(2) Chief, Office of Acquisition.
(3) Chief, Office of Boating, Public and Consumer Affairs.
(4) Chief, Office of Comptroller.
(5) Chief, Office of Civil Rights.
(6) Chief, Office of Health Services.
(7) Chief, General Law Division (for records in the office of the
Chief Counsel).
(8) Chief, Office of Marine Safety, Security and Environmental
Protection.
(9) Chief, Office of Navigation.
(10) Chief, Office of Operations.
(11) Chief, Office of Personnel.
(12) Chief, Office of Readiness and Reserve.
(13) Chief, Office of Command, Control and Communications.
49 CFR 7.103 6. Reconsideration of Determinations Not to Disclose
Records and to Deny Fee Waivers.
Any person who has been notified that a record or part of a record
that has been requested will not be disclosed, or that a request for the
waiver or reduction of a processing fee has been denied, may apply, in
writing, to the Commandant (G-TIS), U.S. Coast Guard, for
reconsideration of that determination. The decision of the Commandant
or his or her designee is administratively final.
49 CFR 7.103 Pt. 7, App. C
49 CFR 7.103 Appendix C to Part 7 -- Federal Aviation Administration
49 CFR 7.103 1. General
This appendix describes the document inspection facilities of the
Federal Aviation Administration (FAA), the kinds of records that are
available for public inspection and copying at those facilities, and the
procedures by which members of the public may make requests for
identifiable records.
49 CFR 7.103 2. Document Inspection Facilities
Document inspection facilities are maintained at FAA Headquarters,
each FAA regional office, the Aeronautical Center, and the FAA Technical
Center. The document inspection facility for the European Office is
located at FAA Headquarters. Except for legal public holidays and other
special closings, these facilities are open to the public, Monday
through Friday, during local times specified in the following listings.
The States within the jurisdictional area of each FAA Regional Office
are also listed in parentheses.
FAA Headquarters, 800 Independence Avenue, SW., Washington, DC 20591.
8:30 a.m.-5:00 p.m. ET.
Alaska Region, 701 C Street, Box 14, Anchorage, AK 99513. 7:30
a.m.-4:00 p.m. Alaska Time (Alaska)
Central Region, 601 East 12th Street, Kansas City, Missouri 64106.
7:30 a.m.-4:00 p.m. CT. (Iowa, Kansas, Missouri, and Nebraska)
Eastern Region, Fitzgerald Federal Bldg., JFK International Airport,
Jamaica, NY 11430. 8:00 a.m-4:30 p.m. ET. (District of Columbia,
Delaware, Maryland, New Jersey, New York, Pennsylvania, Virginia, and
West Virginia)
Great Lakes Region, O'Hare Lake Office Center, 2300 East Devon
Street, Des Plaines, Ill. 60018. 7:30-4:00 p.m. CT. (Illinois, Indiana,
Michigan, Minnesota, North Dakota, Ohio, South Dakota, and Wisconsin)
New England Region, 12 New England Executive Park, Burlington, MA
(Mailing Address: Post Office Box 510, Burlington, MA 01803). 8:00
a.m.-4:00 p.m. ET. (Connecticut, Maine, Massachusetts, New Hampshire,
Rhode Island, and Vermont)
Northwest Mountain Region, 17900 Pacific Highway South, C-68966,
Seattle WA 96168. 7:30 a.m.-4:00 p.m. PT. (Colorado, Idaho, Montana,
Oregon, Utah, Washington, and Wyoming)
Southern Region, 3400 Norman Berry Drive, East Point, GA (Mailing
Address: Post Office Box 20636, Atlanta, GA 30320). 8:00 a.m.-4:30
p.m. ET. (Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, Tennessee, Puerto Rico, and Virgin Islands.
Southwest Region, 4400 Blue Mound Road, Fort Worth, TX (Mailing
Address: Fort Worth, TX 76193-0041). 8:00 a.m.-4:30 p.m. CT.
(Arkansas, Louisiana, New Mexico, Oklahoma, and Texas)
Western Pacific Region, 15000 Aviation Boulevard, Hawthorne, CA
(Mailing Address: Post Office Box 92007, World-Way Postal Center, Los
Angeles, CA 90009). 7:30 a.m.-4:00 p.m. PT. (Arizona, California,
Hawaii, and Nevada)
Mike Monroney Aeronautical Center, 6500 South MacArthur Boulevard
(Mailing Address: Post Office Box 25082), Oklahoma City, OK 73125.
8:00 a.m.-4:30 p.m. CT.
FAA Technical Center, Atlantic City Airport, Atlantic City, NJ 08405.
8:00 a.m.-4:30 p.m. ET.
49 CFR 7.103 3. Records Available at Document Inspection Facilities
(a) The following records under subpart E of this part are available
at FAA document inspection facilities:
(1) Final opinions and orders made in the adjudication of cases by
the Administrator, FAA, or his/her designee.
(2) Policies and interpretations, including any policy or
interpretation concerning a particular factual situation, if that policy
or interpretation can reasonably be expected to have precedential value
in any case involving a member of the public in a similar situation.
All such policies and interpretations made by the Administrator, Deputy
Administrator, Associate Administrators, directors, and heads of offices
are available at the FAA Headquarters document inspection facility;
only those policies and interpretations made by the Administrator,
Deputy Administrator, and the regional or center director concerned are
available at regional and center document inspection facilities.
(3) Any administrative staff manual or instruction to staff that
affects any member of the public, including the prescribing of any
standard, procedure, or policy that, when implemented, requires or
limits any action of any member of the public or prescribes the manner
of performance of any activity by any member of the public. Such
documents are available at the inspection facility of the organizational
unit which has issued them.
(b) An index of the records located at each document inspection
facility is maintained at that facility.
(c) The records and the index may be inspected, without charge, at
the facility. Copies of records may be obtained upon payment of the fee
prescribed in subpart I of this part.
49 CFR 7.103 4. Requests for Reasonably Described Records Under
Subpart F of this part
Each person desiring to inspect a record, or to obtain a copy
thereof, should submit a request in writing to the Assistant
Administrator for Public Affairs, FAA Headquarters, or the director of
the region or center in which it is located. The addresses of FAA
Headquarters and the Regions and Centers are listed in paragraph 2 of
this Appendix. If the location of the record is not known, the request
may be submitted to the Assistant Administrator for Public Affairs, FAA
Headquarters. The following list gives illustrations of types of
records and where they might be located:
(a) Records pertaining to the issue, amendment, suspension or
revocation of certificates, permits, authorizations, and approvals, such
as:
(1) Airman certificates and ratings for pilots, flight instructors,
flight navigators, flight engineers, aircraft dispatchers, mechanics,
repairmen, air traffic control operators, and parachute riggers and
ground instructor certificates are maintained at the Mike Monroney
Aeronautical Center.
(2) Aircraft registration certificates and airworthiness certificates
are maintained at the Aeronautical Center.
(3) Aircraft type certificates and production certificates are
maintained at the regional office within which the issuance was made.
(4) Ferry permits and special flight authorizations are maintained at
the district office of the region within which the issuance was made.
(5) Air carrier operating certificates, commercial operator
certificates, agricultural aircraft operator certificates, repair
station certificates, parachute loft certificates, pilot school
certificates, and mechanic school certificates are maintained at the
district office of the region within which the certification was taken.
(b) Records of designations of representatives of the Administrator
are located at FAA Headquarters.
(c) Records relating to Federal-aid airport grants are located at the
regional office within which the grant was made.
(d) Records of approvals of navigational facilities under Federal
Aviation Regulations (FAR) part 171 are located at the regional office
within which the approval was issued.
(e) Records relating to civil penalty actions and seizure of aircraft
are located at the regional office within which the action was taken.
49 CFR 7.103 5. Reconsideration of Determinations Not to Disclose
Records and to Deny Fee Waivers
Any person who has been notified that a record or part of a record
that has been requested will not be disclosed or that a request for a
fee waiver or reduction will not be granted, either in whole or in part,
may appeal, in writing to the Assistant Administrator for Public
Affairs, FAA, for reconsideration of that determination. The decision
of the Assistant Administrator for Public Affairs is administratively
final.
49 CFR 7.103 Pt. 7, App. D
49 CFR 7.103 Appendix D to Part 7 -- Federal Highway Administration
49 CFR 7.103 1. General
This appendix describes the location and hours of operation of the
document inspection facilities of the Federal Highway Administration
(FHWA); the kinds of records that are available for public inspection
and copying at these facilities; and the procedures by which members of
the public may make requests for records.
49 CFR 7.103 2. Document Inspection Facilities
Document inspection facilities are maintained at the Federal Highway
Administration Headquarters, each regional office, and each division
office. Except for legal public holidays and other special closings,
these facilities are open to the public, Monday through Friday, during
regular working hours, which are included parenthetically after each
address below. Written requests for information should be sent to the
appropriate office and the envelope in which the request is sent should
be prominently marked with the letters ''FOIA.''
FOIA Program Officer (HMS-10), Federal Highway Administration, 400
Seventh Street, SW., Room 4428, Washington, DC 20590. 7:45 a.m.-4:15
p.m. ET.
Regional Federal Highway Administrator, Region 1, Federal Highway
Administration, Clinton Avenue and North Pearl Street, Room 719, Albany,
NY 12207. 7:30 a.m.-4:00 p.m. ET. (New York, New Jersey, Connecticut,
Massachusetts, Rhode Island, Vermont, New Hampshire, Maine, Puerto Rico,
Virgin Islands)
Regional Federal Highway Administrator, Region 3, Federal Highway
Administration, 31 Hopkins Plaza, Room 1633, Baltimore, MD 21201. 7:45
a.m.-4:15 p.m. ET. (Maryland, Virginia, Delaware, District of Columbia,
Pennsylvania, West Virginia)
Regional Federal Highway Administrator, Region 4, Federal Highway
Administration, 1720 Peachtree Road, NW., Suite 200, Atlanta, GA 30367.
7:45 a.m.-4:15 p.m. ET. (Georgia, Florida, Alabama, Mississippi,
Tennessee, Kentucky, North Carolina, South Carolina)
Regional Federal Highway Administrator, Region 5, Federal Highway
Administration, 18209 Dixie Highway, Homewood, IL 60430-2294. 7:30
a.m.-4:15 p.m. CT. (Illinois, Indiana, Ohio, Michigan Wisconsin,
Minnesota)
Regional Federal Highway Administrator, Region 6, Federal Highway
Administration, 819 Taylor Street, Fort Worth, TX 76102. 8:00 a.m.-4:30
p.m. CT. (Texas, Louisiana, Arkansas, Oklahoma, New Mexico)
Regional Federal Highway Administrator, Region 7, Federal Highway
Administration, 6301 Rockhill Road, P.O. Box 419715, Kansas City, MO
64141. 7:45 a.m.-4:15 p.m. CT. (Missouri, Iowa, Kansas, Nebraska)
Regional Federal Highway Administrator, Region 8, Federal Highway
Administration, 555 Zang Street, Room 400, Lakewood, CO 80228. 7:45
a.m.-4:15 p.m. MT. (Colorado, Utah, Wyoming, Montana, North Dakota,
South Dakota)
Regional Federal Highway Administrator, Region 9, Federal Highway
Administration, 211 Main Street, Room 1100, San Francisco, CA 94105.
7:45 a.m.-4:15 p.m. PT. (California, Arizona, Nevada, Hawaii, American
Samoa, Guam)
Regional Federal Highway Administrator, Region 10, Federal Highway
Administration, Mohawk Building, Room 312, 708 SW Third Avenue,
Portland, OR 97204. 7:00 a.m.-5:00 p.m. PT. (Oregon, Idaho, Washington,
Alaska)
Alabama, 441 High Street, Montgomery, AL 36104-4684. 7:45 a.m.-4:30
p.m. CT.
Alaska, Federal Building, 709 West Ninth Street, Room 851, P.O. Box
21648, Juneau, AK 99802-1648. 7:30 a.m.-5:00 p.m. Alaska Time.
Arizona, 234 North Central Avenue, Suite 330, Phoenix, AZ 85004.
7:30 a.m.-4:15 p.m. MT.
Arkansas, Room 3128, Federal Office Building, 700 West Capitol
Avenue, Little Rock, AR 72201-3298. 7:45 a.m.-4:15 p.m. CT.
California, Federal Building, Second Floor, 801 I Street, Sacramento,
CA 95814. 7:45 a.m.-4:30 p.m. PT.
Colorado, 555 Zang Street, Room 250, Lakewood, CO 80228. 7:45
a.m.-4:15 p.m. MT.
Connecticut, Abraham A. Ribicoff Federal Building, 450 Main Street,
Room 635, Hartford, CT 06103. 7:30 a.m.-4:00 p.m. ET.
Delaware, Federal Office Building, Room 2101, 300 South New Street,
Dover, DE 19901-6726. 7:45 a.m.-4:15 p.m. ET.
District of Columbia, Nassif Building, Room 6320, 400 Seventh Street,
SW., Washington, DC 20590. 7:30 a.m.-4:00 p.m. ET.
Florida, 227 North Bronough Street, Room 2015, Tallahassee, FL 32301.
7:30 a.m.-4:00 p.m. ET.
Georgia, Suite 300, 1720 Peachtree Road, NW., Atlanta, GA 30367.
7:00 a.m.-4:00 p.m. ET.
Hawaii, Prince Jonah Kuhio Kalanianaole Federal Building, 300 Ala
Moana Boulevard, Room 3202, Honolulu, HI 96850. (Duty Hours) 7:30
a.m.-4:00 p.m. HST.
Idaho, 3010 W. State Street, Boise, ID 83703. 7:30 a.m.-4:30 p.m.
MT.
Illinois, 320 West Washington Street, Room 700, Springfield, IL
62701. 7:30 a.m.-4:15 p.m. CT.
Indiana, 575 N. Pennsylvania Street, Room 254, Indianapolis, IN
46204. 7:30 a.m.-4:00 p.m. Eastern Standard Time.
Iowa, 105 Sixth Street, Ames, IA 50010. 7:45 a.m.-4:30 p.m. CT.
Mailing address: P.O. Box 627.
Kansas, 444 SE Quincy Street, Room 240, Topeka, KA 66683. 7:45
a.m.-4:15 p.m. CT.
Kentucky, John C. Watts Federal Building and U.S. Courthouse, 330
West Broadway, Frankfort, KY 40602. 8:00 a.m.-4:45 p.m. ET. Mailing
address: P.O. Box 536.
Louisiana, Federal Building, Room 239, 750 Florida Street, Baton
Rouge, LA 70801. 7:30 a.m.-4:00 p.m. CT. Mailing address: P.O. Box
3929, Baton Rouge, LA 70821.
Maine, Edmund S. Muskie Federal Building, U.S. Post Office, Room
614, 40 Western Avenue, Augusta, ME 04330. 7:30 a.m.-4:00 p.m. ET.
Maryland, The Rotunda, Suite 220, 711 West 40th Street, Baltimore, MD
21211. 7:45 a.m.-4:15 p.m. ET.
Massachusetts, Transportation Systems Center, 55 Broadway, 10th
Floor, Cambridge, MA 02142. 7:45 a.m.-4:15 p.m. ET.
Michigan, Federal Building, 315 West Allegan Street, P.O. Box 10147,
Room 211, Lansing, MI 48901. 8:00 a.m.-4:45 p.m. ET.
Minnesota, Metro Square Building, Suite 490, Seventh & Robert
Streets, St. Paul, MN 55101. 7:30 a.m.-4:00 p.m. CT.
Mississippi, 666 North Street, Suite 105, Jackson, MS 39202-3199.
7:45 a.m.-4:15 p.m. CT.
Missouri, 209 Adams Street, Jefferson City, MO 65102. 7:45 a.m.-4:15
p.m. CT. Mailing address: P.O. Box 1787.
Montana, Federal Office Building, 301 South Park, Drawer 10056,
Helena, MT 59626-0056. 7:30 a.m.-4:00 p.m. MT.
Nebraska, Federal Building, Room 487, 100 Centennial Mall North,
Lincoln, NE 68508-3851. 7:45 a.m.-4:15 p.m. CT.
Nevada, 1535 Hot Springs Road, Suite 100, Carson City, NV 89701-0602.
7:45 a.m.-4:30 p.m. PT.
New Hampshire, Federal Building, 55 Pleasant Street, Room 219,
Concord, NH 03301. 7:30 a.m.-4:00 p.m. EST.
New Jersey, Suburban Square Building, 25 Scotch Road, Second Floor,
Trenton, NJ 08628-2595. 8:00 a.m.-4:30 p.m. ET.
New Mexico, 117 U.S. Court House, Post Office Box 1088, Santa Fe, NM
87504. 7:30 a.m.-4:00 p.m. MT.
New York, Leo W. O'Brien Federal Building, Ninth Floor, Clinton
Avenue and North Pearl Street, Albany, NY 12207. 7:30 a.m.-4:00 p.m.
ET.
North Carolina, 310 New Bern Avenue, P.O. Box 26806, Raleigh, NC
27611. 7:45 a.m.-4:15 p.m. ET.
North Dakota, Federal Building, P.O. Box 1755, Bismarck, ND 58502.
7:45 a.m.-4:30 p.m. CT.
Ohio, 200 North High Street, Room 328, Columbus, OH 43215 7:30
a.m.-4:15 p.m. ET.
Oklahoma, Federal Office Building, Room 454, 200 N.W. Fifth Street,
Oklahoma City, OK 73102. 8:00 a.m.-4:30 p.m. CT.
Oregon, The Equitable Center, Suite 100, 530 Center Street, NE.,
Salem, OR 97301. 7:45 a.m.-4:30 p.m. PT.
Pennsylvania, 228 Walnut Street, Harrisburg, PA 17108. 8:00
a.m.-4:30 p.m. ET. Mailing address: P.O. Box 1086.
Puerto Rico, Office Number 150, U.S. Courthouse and Federal Building,
Carlos Chardon Street, Hato Rey, PR 00918. 7:30 a.m.-4:00 p.m. Atlantic
Standard Time.
Rhode Island, 380 Westminster Mall, Fifth Floor, Providence, RI
02903. 7:45 a.m.-4:15 p.m. ET.
South Carolina, Strom Thurmond Federal Building, 1835 Assembly
Street, Suite 758, Columbia, SC 29201. 7:45 a.m.-4:15 p.m. ET.
South Dakota, P.O. Box 700, Federal Office Building, Pierre, SD
57501. 8:00 a.m.-4:30 p.m. CT.
Tennessee, Federal Building, U.S. Courthouse, 801 Broadway, Room
A-926, Nashville, TN 37203. 8:00 a.m.-4:30 p.m. CT.
Texas, Room 826, Federal Office Building, 300 East Eighth Street,
Austin, TX 78701. 7:30 a.m.-4:15 p.m. CT.
Utah, Federal Building, 125 South State Street, Salt Lake City, UT
84111. 7:45 a.m.-4:30 p.m. MT.
Vermont, Federal Building, Montpelier, VT 05602. 7:30 a.m.-4:30 p.m.
ET. Mailing address: P.O. Box 568.
Virginia, Federal Building, Tenth Floor, 400 North Eighth Street,
Richmond, VA 23240. 7:45 a.m.-4:15 p.m. ET.
Virgin Islands, U.S. Federal Building and Courthouse, Room 281,
Charlotte Amalie, St. Thomas, Virgin Islands 00801. Time: 8:30-12:30
AST.
Washington, Evergreen Plaza, 711 South Capitol Way, Suite 501,
Olympia, WA 98501. 7:30 a.m.-4:30 p.m. PT.
West Virginia, 550 Eagan Street, Suite 300 Charleston, WV 25301.
8:00 a.m.-4:30 p.m. ET.
Wisconsin, 4502 Vernon Boulevard, Madison, WI 53705-4905. 7:30
a.m.-4:15 p.m. CT.
Wyoming, 916 Evans Avenue, P.O. Box 1127, Cheyenne, WY 82003. 7:45
a.m.-4:30 p.m. MT.
Division Engineer, Eastern Direct Federal Division, 1000 North Glebe
Road, Arlington, VA 22201. 7:45 a.m. -- 4:15 p.m. ET.
Division Engineer, Central Federal Division, P.O. Box 25246, Denver,
CO 80225. 7:45 a.m. -- 4:15 p.m. MT.
Division Engineer, Western Direct Federal Division, 610 East Fifth
Street, Vancouver, WA 98661. 8:00 a.m. -- 4:30 p.m. PT.
49 CFR 7.103 3. Records Available Through Document Inspection
Facilities
(a) The following records are available through the FHWA Headquarters
document inspection facility:
(1) Final opinions (including concurring and dissenting opinions, if
any) and orders made in the adjudication of cases and issued by the
Federal Highway Administration;
(2) Any policy or interpretation issued by the Federal Highway
Administration, including any policy or interpretation concerning a
particular factual situation, if that policy or interpretation can
reasonably be expected to have precedential value in any case involving
a member of the public in a similar situation.
(b) The following records are available through all Federal Highway
Administration document inspection facilities:
(1) FHWA Orders. These orders are isssued by the Federal Highway
Administration and used primarily to promulgate internal policy,
instructions, and general guidance.
(2) FHWA Notices. These notices aare issued by the Federal Highway
Administration and contain short term instructions or information which
is expected to remain in effect for a predetermined period of time
normally not to exceed one year.
(3) FHWA Bulletins. These bulletins are issued by the Federal
Highway Administration and are used to promulgate one time announcements
or transmit reports, publications, and other similar material.
(4) FHWA/NHTSA Orders. These are orders issued jointly by the
Federal Highway Administration and the National Highway Traffic Safety
Administration and contain policies, procedures, and information
pertaining to the joint administration of the State and Community
Highway Safety Programs.
(5) Technical Advisories. These contain permanent or long-lasting
detailed techniques or technical material that is advisory in nature.
(6) FHWA Manuals. These manuals are issued by the Federal Highway
Administration and contain detailed procedures relating to policies and
program responsibilities. They include the following:
(i) Federal-Aid Highway Program Manual. This Manual contains
policies, procedures, standards, and guides relating to the
administration of the Federal Aid Highway Program and the Direct Federal
Construction Program.
(ii) Labor Compliance Manual.
(iii) Civil Rights-Equal Opportunity Manual.
(iv) Highway Planning Program Manual.
(v) Motor Carrier Safety Manual.
(vi) Highway Safety Program Manual.
(vii) Manual on Uniform Traffic Control Devices.
(viii) Standard Specifications for Construction of Roads and Bridges
on Federal Highway Projects FP-85, 1985.
(ix) FP-79 Construction Manual.
(x) Emergency Relief Disaster Assistance Manual.
These Manuals contain details of compliance programs, accident
investigations, enforcement programs, and interpretations.
(7) Highway Safety Standards. These highway related standards,
issued by the Federal Highway Administration, apply to the aspect of
State highway safety programs for which responsibility resides in the
Federal Highway Administration under the Highway Safety Act of 1966 and
delegations of authority by the Secretary of Transportation.
(8) Motor Carrier Safety Administrative Rulings.
(9) Motor Carrier Safety Waivers From Regulations (including
Handicapped Driver Waiver Program).
(10) Indices for the above records.
49 CFR 7.103 4. Requests for Records Under Subpart F of this Part
Each person desiring to inspect a record, or to obtain a copy
thereof, should submit a request, in writing to the appropriate Federal
Highway Administration official at the address listed in paragraph 2
above. If it is unknown where in FHWA the record(s) sought may be
found, the request may be submitted to the FOIA Program Officer, at the
address given in paragraph 2 above. Each request is subject to the
appropriate fee prescribed in subpart I of this part.
49 CFR 7.103 5. Determinations Not To Disclose Records
The FOIA Program Officer in Washington Headquarters is the only
official authorized to deny requests for the disclosure of records for
any Federal Highway Administration element, both headquarters and field.
49 CFR 7.103 6. Reconsideration of Determinations Not To Disclose
Records and To Deny Fee Waivers
Any person who has been notified that a record or part of a record
that has been requested will not be disclosed, or that a request for a
fee waiver or reduction will not be granted, may appeal, in writing, to
the Associate Administrator for Administration, Federal Highway
Administration, 400 Seventh Street SW., Washington, DC. 20590, for
reconsideration of the determination. The decision of the Associate
Administrator for Administration is administratively final.
49 CFR 7.103 Pt. 7, App. E
49 CFR 7.103 Appendix E to Part 7 -- Federal Railroad Administration
49 CFR 7.103 1. General.
This appendix describes the document inspection facility of the
Federal Railroad Administration, the kinds of records that are available
for public inspection and copying at that facility, and the procedures
by which members of the public may make requests for identifiable
records.
49 CFR 7.103 2. Document Inspection Facility
The document inspection facility is maintained by the Executive
Director of the Federal Railroad Administration, Room 8212, 400 Seventh
Street, SW., Washington, DC 20590. This facility is open to the public
8:30 a.m. to 5:00 p.m., ET, Monday through Friday, except for legal
public holidays and other special closings.
49 CFR 7.103 3. Records Available at the Document Inspection Facility
The following records are maintained at the document inpsection
facility:
(a) Any material issued by the Federal Railroad Administration and
published in the Federal Register, including regulations.
(b) Final opinions (including concurring and dissenting opinions, if
any) and orders made in the adjudication of cases and issued by the
Federal Railroad Administration. Included are opinions and orders
issued under the Safety Appliance Act, Hours of Service Act, Locomotive
Inspection Act, Accident Reports Act, and the Federal Railroad Safety
Act of 1970.
(c) Any policy or interpretation issued within the Federal Railroad
Administration, including any policy or interpretation concerning a
particular factual situation, if that policy or interpretation can
reasonably be expected to have precedential value in any case involving
a member of the public in a similar situation.
(d) Subject to 7.41(a)(3) of this part, any administrative staff
manual or instruction to staff, issued by the Federal Railroad
Administration, that affects any member of the public, including the
prescribing of any standard, procedure, or policy that, when
implemented, requires or limits any action of any member of the public
or prescribes the manner of performance of any activity by any member of
the public.
(e) Public notice of pending administrative actions.
(f) Office of Safety Annual Report.
(g) Accident/Incident Bulletin.
(h) Rail-Highway Grade-Crossing Bulletin.
(i) Summary of accidents investigated by the Federal Railroad
Administration.
(j) Certain railroad employee fatalities investigated by the Federal
Railroad Administration.
(k) Subject to 7.69 of this part, documents related to loans, loan
guarantees, or grant programs conducted by the Federal Railroad
Administration.
(l) An index to the material described in (a) through (d). The
records and the index may be inspected at the facility without charge.
Copies of records may be obtained upon payment of fees prescribed in
subpart I of this part.
49 CFR 7.103 4. Requests for Identifiable Records Under Subpart F of
this Part
Each person desiring to inspect a record, or to obtain a copy
thereof, should submit a request in writing to the Executive Director,
Federal Railroad Administration, Room 8212, 400 Seventh Street, SW.,
Washington, DC 20590. Each request should be accompanied by a signed
authorization to conduct the search and agreement to pay any costs
incurred. Requester will be notified when it is estimated that the fee
will likely exceed $25. Prepayment may be required before delivery is
made.
49 CFR 7.103 5. Reconsideration of Department Not To Disclose Records
and To Deny Fee Waivers.
Any person who has been notified that a record or part of a record
that has been requested will not be disclosed or that a request for a
fee waiver or reduction will not be granted, either in whole or in part,
may appeal, in writing, to the Federal Railroad Administrator, 400
Seventh Street, SW., Washington, DC 20590 for reconsideration of that
determination. The decision of the Federal Railroad Administrator is
administratively final.
49 CFR 7.103 Pt. 7, App. F
49 CFR 7.103 Appendix F to Part 7 -- National Highway Traffic Safety
Administration
1. General. This appendix describes the document inspection
facilities of the National Highway Traffic Safety Administration
(NHTSA), the kinds of records that are available for inspection and
copying at these facilities, and the procedures by which members of the
public may make requests for identifiable records.
2. Document inspection facilities. Document inspection facilities
are maintained for NHTSA Headquarters and each NHTSA regional office.
Unless otherwise noted, these facilities, which are located at the
following addresses, are open to the public from 7:45 a.m. to 4:15 p.m.
local time, Monday through Friday, except legal public holidays and
other special closings.
National Highway Traffic Safety Administration, Technical Reference
Division, Room 5108, 400 Seventh Street, SW., Washington, DC 20590.
Hours of operation are 8:00 a.m. to 4:00 p.m. ET.
National Highway Traffic Safety Administration, Technical Reference
Division, Docket Section Room 5109, 400 Seventh Street, SW., Washington,
DC 20590. (Material covered by paragraph 3(a)(8) of this Appendix
only). Hours of operation are 8:00 a.m. to 4:00 p.m. ET.
National Highway Traffic Safety Administration, Office of Management
and Data Systems (OMDS), Room 5238, 400 Seventh Street, SW., Washington,
DC 20590. (Material covered by paragraphs 3(a) (9) and (10) of this
Appendix only). Hours of operation are 8:00 a.m. to 4:00 p.m. ET.
Region I -- Regional Administrator, NHTSA, Transportation Systems
Center, Kendall Square, Code 903, Cambridge, MA 02142. (Connecticut,
Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont)
Region II -- Regional Administrator, NHTSA, 222 Mamaroneck Avenue,
Suite 204, White Plains, New York 10605. (New York, New Jersey, Puerto
Rico, and Virgin Islands)
Region III -- Regional Administrator, NHTSA, Airport Plaza Building,
793 Elkridge Landing Road, Room D-203, Linthicum, MD 21090. Hours of
operation are 8:00 a.m. to 4:30 p.m. ET. (Delaware, District of
Columbia, Maryland, Pennsylvania, Virginia, and West Virginia)
Region IV -- Regional Administrator, NHTSA, Suite 501, 1720 Peachtree
Road, NW., Atlanta, GA 30309. (Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee)
Region V -- Regional Administrator, NHTSA, 18209 Dixie Highway,
Homewood, IL 60430. Hours of operation are 8:00 a.m. to 4:30 p.m. CT.
(Illinois, Indiana, Michigan, Ohio, Minnesota, and Wisconsin)
Region VI -- Regional Administrator, NHTSA, Room 8A38, 819 Taylor
Street, Fort Worth, TX 76102. Hours of operation are 8:00 a.m. to 4:30
p.m. CT. (Arkansas, Louisiana, New Mexico, Oklahoma, and Texas)
Region VII -- Regional Administrator, NHTSA, P.O. Box 412515, Kansas
City, MO 64141. (Iowa, Kansas, Missouri, and Nebraska)
Region VIII -- Regional Administrator, NHTSA, 555 Zang Street, Fourth
Floor, Denver, CO 80228. (Colorado, Montana, North Dakota, South
Dakota, Utah, and Wyoming)
Region IX -- Regional Administrator, NHTSA, 211 Main Street, Suite
1000, San Francisco, CA 94105. (American Samoa, Arizona, California,
Guam, Hawaii, and Nevada)
Region X -- Regional Administrator, NHTSA, 3140 Jackson Federal
Building, Seattle, Washington 98174. Hours of operation are 8:00 a.m.
to 4:30 p.m. PT. (Alaska, Idaho, Oregon, and Washington)
49 CFR 7.103 3. Records Available at Document Inspection Facilities
(a) Certain documents not in the custody of the document inspection
facility (for example, current defect investigations) may be reviewed
there, but only if they are requested in advance. The following records
are available at the NHTSA Headquarters document inspection facility:
(1) Final opinions and orders made in the adjudication of cases and
issued by the National Highway Traffic Safety Administration.
(2) NHTSA test reports that assess manufacturer's compliance with
Federal Motor Vehicle Safety Standards.
(3) Investigative reports concerning compliance with standards and
possible safety-related defects.
(4) Summaries and detailed reports of motor vehicle recall campaigns.
(5) Consumers' complaint letters regarding motor vehicles.
(6) Contractors' technical reports documenting the results of
research performed for NHTSA pursuant to contract.
(7) Multidisciplinary case studies on the causes of selected motor
vehicle accidents.
(8) Rulemaking actions including comments and informal
interpretations and opinions concerning provisions of the National
Traffic and Motor Vehicle Safety Act of 1966, the Motor Vehicle
Information and Cost Savings Act and the Highway Safety Act and
regulations and standards issued thereunder which have been given to
members of the public by National Highway Traffic Safety Administration
officials.
(9) NHTSA Orders. These orders are issued by the National Highway
Traffic Safety Administration and contain policy, instructions, and
general procedures.
(10) NHTSA Notices. These notices are issued by the National Highway
Traffic Safety Administration and transmit one-time or short-term
announcements or temporary directives (1 year or less).
(b) The following records are available at all NHTSA document
inspection facilities:
(1) Motor Vehicle Safety Standards. These standards, issued by the
National Highway Traffic Safety Administration, apply to new motor
vehicles and equipment thereon.
(2) Highway Safety Standards. These standards, issued by the
National Highway Traffic Safety Administration, apply to State highway
safety programs.
(3) State Highway Programs. Reports on State highway programs
presenting the proposed implementation of Federal Highway Standards on
an annual and long-range basis. These reports are available at the
NHTSA Headquarters document inspection facility and the appropriate
Regional Administrator's Office.
4. Requests for records under subpart F of this part. Persons
wishing to inspect a record, or to obtain a copy thereof, should submit
a request in writing to the NHTSA facility in which such record is
located. If the records are located at Washington Headquarters,
requests should be sent to Director, Executive Secretariat, NHTSA, Room
5221, 400 Seventh Street, SW., Washington, DC 20590. If the records are
located in a regional office, requests should be sent to the appropriate
inspection facility.
5. Reconsideration of determinations not to disclose records and to
deny fee waivers. Any person who has been notified that a record or
part of a record that has been requested will not be disclosed or that a
request for a fee waiver or reduction will not be granted, either in
whole or in part, may appeal in writing, to the Associate Administrator
for Administration, National Highway Traffic Safety Administration, 400
Seventh Street, SW., Washington, DC 20590.
6. The fee for a search for a record or records identified by class
or subject is pursuant to 7.95 of this part.
49 CFR 7.103 Pt. 7, App. G
49 CFR 7.103 Appendix G to Part 7 -- Urban Mass Transportation Administration
49 CFR 7.103 1. General
This appendix describes the document inspection facilities of the
Urban Mass Transportation Administration (UMTA), the kind of records
that are available for public inspection and copying at these
facilities, and the procedures by which members of the public may make
requests for identifiable records.
49 CFR 7.103 2. Document Inspection Facilities
Document inspection facilities are maintained at the Urban Mass
Transportation Administration Headquarters and each UMTA regional
office. Except for legal public holidays and other special closings,
these facilities are open to the public, Monday through Friday, at the
prescribed times and locations:
Urban Mass Transportation Administration, Office of Public Affairs,
Room 9314, 400 Seventh Street, SW., Washington, DC 20590. (Working
hours -- 8:30 a.m.-5:00 p.m. ET).
Region I -- Regional Administrator, UMTA, Transportation Systems
Center, Kendall Square, 55 Broadway, Suite 920, Cambridge, MA 02142.
8:30 a.m.-5:00 p.m. ET. (Connecticut, Maine, Massachusetts, New
Hampshire, Rhode Island, and Vermont)
Region II -- Regional Administrator, UMTA, 26 Federal Plaza, Suite
14-110, New York, NY 10278. 8:30 a.m.-5:00 p.m. ET. (New Jersey and New
York)
Region III -- Regional Administrator, UMTA, 841 Chestnut Street,
Suite 714, Philadelphia, PA 19107. 8:00 a.m.-5:00 p.m. ET. (Delaware,
District of Columbia, Maryland, Pennsylvania, Virginia, and West
Virginia)
Region IV -- Regional Administrator, UMTA, 1720 Peachtree Road, NW.,
Suite 400, Atlanta, GA 30309. 8:30 a.m.-5:00 p.m. ET. (Alabama,
Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina,
Tennessee, and Puerto Rico)
Region V -- Regional Administrator, UMTA, 300 S. Wacker Drive, Suite
1720, Chicago, IL 60606. 8:30 a.m.-5:00 p.m. CT. (Illinois, Indiana,
Michigan, Ohio, and Wisconsin)
Region VI -- Regional Administrator, UMTA, 819 Taylor Street, Suite
9A32, Ft. Worth, TX 76102. 8:00 a.m.-5:00 p.m. CT. (Arkansas,
Louisiana, New Mexico, Oklahoma, and Texas)
Region VII -- Regional Administrator, UMTA, 6301 Rockhill Road, Suite
100, Kansas City, MO 64131. 8:30 a.m.-5:00 p.m. CT. (Iowa, Kansas,
Missouri, and Nebraska)
Region VIII -- Regional Administrator, UMTA, 1050 17th Street, Suite
1822 Prudential Plaza, Denver, CO 80265. 8:30 a.m.-5:00 p.m. MT.
(Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming)
Region IX -- Regional Administrator, UMTA, 211 Main Street, Room
1160, San Francisco, CA 94105. 8:30 a.m.-5:00 p.m. PT. (Nevada,
California, Arizona, Hawaii, and Guam)
Region X -- Regional Administrator, UMTA, 915 Second Avenue, Suite
3142, Seattle, WA 98174. 8:00 a.m.-4:30 p.m. PT. (Alaska, Idaho,
Oregon, and Washington)
49 CFR 7.103 3. Records Available at the Document Inspection
Facilities
The following records are located at the document inspection
facilities:
(a) Final opinions (including concurring or dissenting opinions) and
orders made in the adjudication of cases and issued by the Office of the
Secretary.
(b) Any policy or interpretation issued by the Urban Mass
Transportation Administration, including any policy or interpretation
concerning a particular factual situation, if that policy or
interpretation can reasonably be expected to have precedential value in
any case involving a member of the public in a similar situation.
(c) Any administrative staff manual or instruction to staff, issued
by the Urban Mass Transportation Administration that affects any member
of the public, including the prescribing of any standard, procedure, or
policy that, when implemented, requires or limits any action of any
member of the public or prescribes the manner of performance of any
activity by any member of the public.
(d) An index to, and copies of, the internal and external directives
of the Urban Mass Transportation Administration. The records and the
index may be inspected without charge. Copies of records may be
obtained upon payment of the fee prescribed in subpart I of this part.
(e) Any proposed or final regulation issued by the Urban Mass
Transportation Administration and any docket materials regarding these
regulations. Public dockets for rulemakings are kept by the Docket
Clerk, Room 9223, and are available for public inspection and copying.
49 CFR 7.103 4. Requests for Identifiable Records Under Subpart F of
This Part
Each person desiring to inspect a record or to obtain a copy thereof,
should submit the request in writing to the Director of Public Affairs,
Urban Mass Transportation Administration, Room 9314, Department of
Transportation Building (Nassif Building), 400 Seventh Street, SW.,
Washington, DC 20590. Each request should be accompanied by a signed
authorization to conduct the search and agreement to pay any costs
incurred, as provided in 49 CFR part 7. The requester may stipulate a
maximum fee which he or she will pay. Prepayment may be required if
authorized by 49 CFR part 7.
49 CFR 7.103 5. Reconsideration of Determinations Not To Disclose
Records and To Deny Fee Waivers
Any person who has been notified that a record or part of a record
will not be disclosed or that a request or a fee waiver or reduction
will not be granted, either in whole or in part, may appeal, in writing,
to the Deputy Administrator, Urban Mass Transportation Administration,
Room 9328, 400 Seventh Street, SW., Washington, DC 20590, for
reconsideration of that determination. The decision of the Deputy
Administrator is administratively final.
49 CFR 7.103 Pt. 7, App. H
49 CFR 7.103 Appendix H to Part 7 -- Saint Lawrence Seaway Development
Corporation
1. General. This appendix describes the document inspection facility
of the Saint Lawrence Seaway Development Corporation, the kinds of
records that are available for public inspection and copying at that
facility, and the procedures by which members of the public may make
requests for identifiable records.
2. Document inspection facility. The document inspection facility of
the Saint Lawrence Seaway Development Corporation is maintained at its
operations headquarters building in Massena, New York. This facility is
open to the public during regular working hours (8:00 a.m. to 4:30 p.m.
ET).
3. Records available at the document inspection facility. The
following records are maintained at the document inspection facility:
(a) Final opinions (including concurring and dissenting opinions, if
any) and orders made in the adjudication of cases and issued by the
Saint Lawrence Seaway Development Corporation.
(b) Any policy or interpretation issued by the Saint Lawrence Seaway
Development Corporation, including any policy or interpretation
concerning a particular factual situation, if that policy or
interpretation can reasonably be expected to have precedential value in
any case involving a member of the public in a similar situation.
(c) Any Administrative staff manual or instruction to staff, issued
by the Saint Lawrence Seaway Development Corporation, that affects any
member of the public, including the prescribing of any standard,
procedure or policy that, when implemented, requires or limits any
action of any member of the public or prescribes the manner of
performance of any activity by any member of the public.
(d) An index to the material described in (a) through (c). The
records and the index may be inspected at the facility without charge.
Copies of records may be obtained upon payment of fee prescribed in
subpart I of this part.
4. Requests for identifiable records under subpart F of this part.
Each person desiring to inspect a record, or to obtain a copy thereof
should submit a request in writing to the Comptroller, Office of
Finance/Administration, Saint Lawrence Seaway Development Corporation,
180 Andrews Street, Massena, New York 13662.
5. Any person who has been notified that a record will not be
disclosed; and any person who has been notified that his or her request
for a fee waiver, in whole or in part, cannot be granted, may apply, in
writing, to the Administrator, Saint Lawrence Seaway Development
Corporation, Post Office Box 44090, Washington, DC 20026-4090, for
reconsideration of the request. The decision of the Administrator is
administratively final.
49 CFR 7.103 Pt. 7, App. I
49 CFR 7.103 Appendix I to Part 7 -- Maritime Administration
1. General. This appendix describes the location and hours of
operation of the document inspection facility of the Maritime
Administration (MARAD), the kinds of records that are available for
public inspection and copying at that facility, and the procedures by
which members of the public may make requests for reasonably described
records.
2. Document inspection facility. The document inspection facility
for MARAD is maintained in Room 7300 of the Department of Transportation
Building, 400 Seventh Street SW., Washington, DC 20590. The facility is
open to the public between 9:30 a.m. and 4:30 p.m. eastern time, Monday
through Friday, except legal public holidays and other special closings.
3. Records available at the document inspection facility. The
following records are maintained at the document inspection facility:
(a) Any material issued by MARAD and published in the Federal
Register, including regulations, for the most recent five years.
(b) Opinions, decisions, and orders of the Maritime
Administrator/MARAD and of the Maritime Subsidy Board (including
concurrences and dissents, if any).
(c) Any policy or interpretation issued by MARAD, including any
policy or interpretation concerning a particular factual situation, if
that policy or interpretation can reasonably be expected to have
precedential value in any case involving a member of the public in a
similar situation.
(d) Any administrative staff manual or instruction to staff, issued
by MARAD, that affects any member of the public, including the
prescribing of any standard, procedure, or policy that, when
implemented, requires or limits any action of any member of the public
or prescribes the manner of performance of any activity by any member of
the public as described in subpart E of this part.
(e) An index of the records described in (b) through (d).
4. Requests for reasonably described records under subpart F of this
part. Each person desiring to inspect a record, or to obtain a copy
thereof, should submit a request in writing to the Freedom of
Information Officer, Maritime Administration, Room 7300, 400 Seventh
Street, NW., Washington, DC 20590. Each request should be accompanied
by a signed authorization to conduct the search and agreement to pay any
costs incurred. Prepayment may be required before delivery is made.
The requester may stipulate a maximum fee which he or she will pay.
5. The official having authority to make determinations on requests,
pursuant to the Freedom of Information Act, is the Freedom of
Information Officer or an appropriate designee.
6. Appeal of determination not to disclose records and/or waive fees.
Any person who has been notified that a record or part of a record that
has been requested will not be disclosed, or that a request for a fee
waiver or reduction will not be granted, either in whole or in part, may
appeal in writing to the Maritime Administrator, Maritime
Administration, Room 7206, 400 Seventh Street, SW., Washington, DC
20590. The decision of the Maritime Administrator is administratively
final.
49 CFR 7.103 Pt. 7, App. J
49 CFR 7.103 Appendix J to Part 7 -- Research and Special Programs Administration
49 CFR 7.103 1. General
This appendix describes the document inspection facilities of the
Research and Special Programs Administration (RSPA), the kinds of
records that are available for inspection and copying at these
facilities, and the procedures by which members of the public may make
requests for reasonably described records.
49 CFR 7.103 2. Document Inspection Facilities
Document inspection facilities are maintained at the RSPA
Headquarters Office, the Office of Hazardous Materials Transportation
(OHMT), the Office of Pipeline Safety (OPS), the Office of Aviation
Information Management (OAIM), and the Transportation Systems Center
(TSC) in Cambridge, Massachusetts. These facilities are open to the
public from 9:00 a.m. to 4:30 p.m. ET, Monday through Friday, except
legal public holidays and other special closings, at the following
locations:
Freedom of Information Officer, Research and Special Programs
Administration, Room 8406, 400 Seventh Street, SW., Washington, DC
20590.
Office of Hazardous Materials Transportation, DHM-50, Room 8424, 400
Seventh Street, SW., Washington, DC 20590.
Office of Pipeline Safety, DPS-1, Room 8417, 400 Seventh Street, SW.,
Washington, DC 20590.
Chief of Data Services Branch, Data Requirements and Public Reports
Division, Room 4201, 400 Seventh Street, SW., Washington, DC 20590.
Public Information Officer, Transportation Systems Center, 55
Broadway, Kendall Square, Cambridge, MA 02142.
49 CFR 7.103 3. Records Available Through Document Inspection
Facilities
(a) The following records are available through the RSPA Headquarters
document inspection facility:
(1) Final opinions (including concurring and dissenting opinions, if
any) and orders made in the adjudication of cases and issued by the
Research and Special Programs Administration.
(2) Any policy or interpretation issued by the Research and Special
Programs Administration, including any policy or interpretation
concerning a particular factual situation, if that policy or
interpretation can reasonably be expected to have precedential value in
any case involving a member of the public in a similar situation.
(3) Any administrative staff manual or instruction to staff, issued
by the Research and Special Programs Administration, that affects any
member of the public, including the prescribing of any standard,
procedure, or policy that, when implemented, requires or limits any
action of any member of the public or prescribes the manner of
performance of any activity by any member of the public.
(4) RSPA Orders. RSPA orders are issued by the Research and Special
Programs Administration and are used primarily to promulgate internal
RSPA policy, instructions, and general guidance.
(5) RSPA Notices. RSPA notices are issued by the Research and
Special Programs Administration and contain short-term instructions or
information which is expected to remain in effect for less than 90 days
or for a predetermined period of time normally not to exceed one year.
(6) Indices to the material described in (1) through (5).
(b) The following records are available through the Materials
Transportation Bureau document inspection facility:
(1) Final opinions (including concurring and dissenting opinions, if
any) and orders made in the adjudication of cases and issued by the
Materials Transportation Bureau.
(2) Any policy or interpretation issued by the Research and Special
Programs Administration, including any policy or interpretation
concerning a particular factual situation, if that policy or
interpretation can reasonably be expected to have precedential value in
any case involving a member of the public in a similar situation.
(3) Any administrative staff manual or instruction to staff, issued
by the Materials Transportation Bureau, that affects any member of the
public including the prescribing of any standard, procedure, or policy
that, when implemented, requires or limits any action of any member of
the public or prescribes the manner of performance of any activity by
any member of the public.
(4) Indices to the material described in (1) through (3).
(c) The following records are available through the Data Services
Branch of the Office of Aviation Information Management's inspection
facility:
(1) Air Carrier Forms 41, 183, 217, 251, 291, 296-R, 298C, ICAO
Supplemental Reports and ER-586 and Origination and Destination outputs
which are maintained as a data base and reference source.
(d) The following records are available through the Transportation
Systems Center document inspection facility:
(1) RSPA Orders. (Described in paragraph (a)(4) above).
(2) RSPA Notices. (Described in paragraph (a)(5) above).
(3) TSC Orders. TSC orders are issued by the Transportation Systems
Center and are used primarily to promulgate internal TSC policy,
instructions, and general guidance.
(4) TSC Notices. TSC notices are issued by the Transportation
Systems Center and contain short-term instructions or information which
is expected to remain in effect for less than 90 days or for a
predetermined period of time normally not to exceed one year.
(5) Indices to the material described in (1) through (4).
(d) The records and the indexes may be inspected at each facility
without charge. A prepayment of fees may be required before copies of
records may be obtained, as described in subpart I this part.
49 CFR 7.103 4. Requests for Records Under Subpart F of this Part
Each person desiring to inspect a record, or to obtain a copy
thereof, should submit a request in writing to the appropriate RSPA
document inspection facility as identified in paragraph 2 of this
Appendix. Should that facility not have custody of the record, it will
forward the request to the appropriate office. If the location of the
record is not known, the request should be submitted to the Freedom of
Information Officer, RSPA Headquarters, and that official will forward
the request to the appropriate office. Each request should be
accompanied by a signed authorization to conduct the search and
agreement to pay any costs incurred. Prepayment may be required before
delivery is made. The requester may stipulate a maximum fee which he or
she will pay.
49 CFR 7.103 5. Reconsideration of Determination not to Disclose
Records and to Deny Fee Waivers
Any person who has been notified that a record or part of a record
that has been requested will not be disclosed or that a request for a
fee waiver or reduction will not be granted, either in whole or in part,
may appeal, in writing, to the Research and Special Programs
Administrator, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590, for a reconsideration of the determination.
The decision of the Administrator is administratively final.
49 CFR 7.103 PART 8 -- CLASSIFICATION AND DECLASSIFICATION OF NATIONAL
SECURITY INFORMATION AND MATERIAL
Sec.
8.1 Scope.
8.3 Applicability.
8.5 Definitions.
8.7 Spheres of responsibility.
8.9 Security Review Committee.
8.11 Authority to classify information.
8.13 Authority to downgrade or declassify.
8.15 Review of exempted and excluded material.
8.17 Procedures for submitting and handling requests for
classification reviews.
8.19 Declassification of classified material after 30 years.
8.21 Burden of proof.
8.23 Classified material transferred to the Department of
Transportation.
8.25 Public availability of declassified information.
8.27 Access to historical researchers, former Presidential appointees
and contractors.
8.29 Industrial security.
Authority: E.O. 11652 (37 FR 5209), National Security Council
Directive of May 17, 1972 (37 FR 10053), and secs. 3 and 9 of the
Department of Transportation Act (49 U.S.C. 1652 and 1657).
Source: 37 FR 28297, Dec. 22, 1972, unless otherwise noted.
49 CFR 8.1 Scope.
This part sets forth procedures affecting the public, for the
classification, declassification and availability of information, in
implementation of Executive Order 11652, ''Classification and
Declassification of National Security Information and Material.''
49 CFR 8.3 Applicability.
The provisions of this part apply to all elements of the Department
of Transportation including the National Transportation Safety Board.
49 CFR 8.5 Definitions.
As used in this part:
Classified information means official information which requires
protection against unauthorized disclosure in the interest of the
national security of the United States and which has been so designated.
The specific degree of protection required is designated by the
following classification categories:
(a) Top secret. That information or material which requires the
highest degree of protection and the unauthorized disclosure of which
could reasonably be expected to cause exceptionally grave damage to the
national security.
(b) Secret. That information or material which requires a
substantial degree of protection and the unauthorized disclosure of
which could reasonably be expected to cause serious damage to the
national security.
(c) Confidential. That national security information or material
which requires protection and the unauthorized disclosure of which could
reasonably be expected to cause damage to the national security.
Classify means to determine that official information requires, in
the interest of national security, a specific degree of protection
against unauthorized disclosure, coupled with a designation signifying
that such a determination has been made.
Declassify means to determine that information no longer requires
protection against unauthorized disclosure in the interest of national
security. Material will be re-marked to reflect this determination.
Downgrade means to determine that classified information requires a
lesser degree of protection against unauthorized disclosure in the
interests of national security than that currently assigned. Material
will be re-marked to reflect this determination.
49 CFR 8.7 Spheres of responsibility.
(a) Pursuant to the provisions of section 7(B)(2) of Executive Order
11652, the Assistant Secretary for Administration is hereby designated
as the senior staff officer of the Secretary of Transportation with
assigned responsibilities to assure effective compliance with and
implementation of the order, National Security Council Directives, and
this part.
(b) In the discharge of these responsibilities, the Assistant
Secretary for Administration shall be assisted by the Director of
Investigations and Security who, in addition to other actions directed
by this part, shall evaluate the overall application of and adherence to
the security policies and requirements prescribed herein and who shall
report his findings and recommendations to the Assistant Secretary for
Administration, heads of administrations, Chairman, National
Transportation Safety Board, and, as appropriate, to the Secretary.
(c) Secretarial Officers, heads of administrations, and the Chairman,
National Transportation Safety Board, shall assure the effective
administration of the provisions prescribed herein, that adequate
personnel and funding are provided for this purpose, and that corrective
actions which may be warranted are taken promptly.
49 CFR 8.9 Security Review Committee.
(a) There is hereby established a Department of Transportation
Security Review Committee which shall have authority to:
(1) Act on all suggestions and complaints not otherwise resolved with
respect to the Department's administration of the Executive Order and
implementing directives, including those regarding overclassification,
failure to declassify, or delay in declassifying;
(2) Act on appeals of requests for classification reviews, and
appeals of requests for records under section 552 of Title 5, United
States Code, (Freedom of Information Act), when the initial denial is
based on continued classification of the record; and
(3) Recommend to the Secretary, when necessary, appropriate
administrative action to correct abuse or violation of any provision of
the Executive order and implementing directives.
(b) The Security Review Committee shall be composed of the Assistant
Secretary for Administration who shall serve as Chairman, the General
Counsel, and the Director of Investigations and Security. When matters
affecting a particular administration or the National Transportation
Safety Board are at issue, the Associate Administrator for
Administration for that administration, the Chief of Staff for the U.S.
Coast Guard, or the General Manager for the National Transportation
Safety Board, as the case may be, shall participate as an ad hoc member,
together with the Chief Counsel for the particular element.
(c) The Chairman shall submit to the Interagency Classification
Review Committee quarterly reports of Departmental Committee actions on
classification review requests, classification abuses, and unauthorized
disclosure of classified information.
49 CFR 8.11 Authority to classify information.
(a) Executive Order 11652 confers upon the Secretary of
Transportation the authority to originally classify information as
SECRET or CONFIDENTIAL with further authorization to delegate this
authority.
(b) The following delegations of authority to originally classify
information as ''SECRET'' or ''CONFIDENTIAL'', which may not be
redelegated, are hereby made:
(1) Office of the Secretary of Transportation. The Under Secretary;
Assistant Secretary for Policy and International Affairs; Assistant
Secretary for Administration; Director of Investigations and Security;
Director, Transportation Systems Center.
(2) United States Coast Guard. The Commandant; Assistant
Commandant; Chief of Staff; Chief, Office of Marine Environment and
Systems; Chief, Office of Operations; Chief, Intelligence Staff;
Commander, Eastern Area; Commander, Western Area; Commanders, Coast
Guard Districts; Commander, Coast Guard Activities Europe.
(3) Federal Aviation Administration. The Administrator; Deputy
Administrator; Associate Administrator for Administration; Assistant
Administrator for International Aviation Affairs; Director of Air
Transportation Security; Regional Directors; Director, Aeronautical
Center; Director, National Aviation Facilities Experimental Center.
(4) National Transportation Safety Board. Chairman of the Board;
General Manager.
(c) Although the delegations of authority set out in paragraph (b) of
this section are expressed in terms of positions, the authority is
personal and is invested only in the individual occupying the position.
The authority may not be exercised ''by direction of'' a designated
official. The formal appointment or assignment of an individual to one
of the identified positions or a designation in writing to act in the
absence of one of these officials, however, conveys the authority to
originally classify information as ''Secret'' or ''Confidential.''
(d) Previous delegations and redelegations of authority within the
Department of Transportation to originally classify information ''Top
Secret,'' ''Secret,'' or ''Confidential'' are hereby rescinded.
49 CFR 8.13 Authority to downgrade or declassify.
Information originally classified by the Department may be
specifically downgraded or declassified by the official authorizing the
original classification or by his successor; by a supervisory official
of either, or by higher authority; or by the Departmental Security
Review Committee.
49 CFR 8.15 Review of exempted and excluded material.
(a) Background -- (1) Classified material produced after June 1,
1972. Executive Order 11652 establishes a General Declassification
Schedule under which classified material produced after June 1, 1972,
becomes automatically downgraded and declassified at prescribed
intervals. Exceptions to the General Declassification Schedule with
respect to material produced after June 1, 1972, are:
(i) Material which is downgraded or declassified earlier than
provided by the Schedule, based upon a predictable event or other
development; and
(ii) Material which is exempt from automatic declassification because
it may warrant protection for a period exceeding that provided by the
Schedule.
Decisions to exempt material from the General Declassification
Schedule may be made only by an official authorized to originally
classify information as Top Secret, and only if the information falls
within one of four categories established by the Executive order.
Material which has been exempted from the General Declassification
Schedule is subject to a mandatory classification review as specified in
paragraph (b) of this section.
(2) Classified material produced prior to June 1, 1972. Classified
material produced prior to June 1, 1972, and which was marked group 1,
group 2, or group 3 in accordance with the provisions of Executive Order
10501, as amended (26 FR 8932, Sept. 22, 1961), or which is not group
marked, is excluded from automatic declassification, but is subject to a
mandatory classification review as specified in paragraph (b) of this
section.
(b) Requirement for classification review. Classified material which
is exempt from the General Declassification Schedule, and classified
material which is excluded from automatic declassification shall be
subject to a mandatory classification review for declassification
purposes at any time after the expiration of 10 years from the date it
was produced, provided that:
(1) A department or agency or a member of the public requests a
review;
(2) The request describes the record with sufficient particularity to
permit the record to be identified; and
(3) The record can be obtained with only a reasonable amount of
effort.
(c) Remarking. Material which no longer warrants classification as
determined by the review shall be declassified, and so marked. Material
which continues to warrant classification shall be marked to indicate
that a review was conducted. Whenever possible, a date for automatic
declassification shall be established and the material so marked.
49 CFR 8.17 Procedures for submitting and handling requests for
classification reviews.
(a) The Director of Investigations and Security, Office of the
Secretary of Transportation, 400 Seventh Street SW, Washington, DC
20590, is hereby designated as the office to whom a member of the public
or another department or agency should submit a request for a
classification review of classified material produced by or under the
primary cognizance of the Department. Elements of the Department which
may receive a request directly shall immediately notify the Director.
(b) If the request for classification review involves material
produced by or under the cognizance of the U.S. Coast Guard, the Federal
Aviation Administration, or the National Transportation Safety Board,
the Director shall forward the request to the headquarters security
staff of the element concerned for action. If the request involves
material produced by other Departmental elements, the Director shall
serve as the office acting on the request.
(c) The office acting on the request shall:
(1) Immediately acknowledge receipt of the request and provide a copy
of the correspondence to the Director. If a fee for search of records
is involved pursuant to part 7, subpart H of the regulations of the
Office of the Secretary (part 7, subpart H, of this subtitle), or, in
the case of material of the National Transportation Safety Board,
pursuant to the regulations of the National Transportation Safety Board
(14 CFR part 401, subpart C) (part 401 was redesignated as 49 CFR part
801, at 40 FR 30235, July 17, 1975), the requester shall be so notified;
(2) Conduct a security review which shall include consultation with
the office which produced the material and with source authorities when
the classification, or exemption of material from automatic
declassification, was based upon determinations by an original
classifying authority; and
(3) Assure that the requester is notified of the determination within
30 days or given an explanation as to why further time is necessary, and
provide a copy of the notification to the Director of Investigations and
Security.
(d) Whenever a request is insufficient in the description of the
record sought, the requester shall be asked to limit his request to
records that are reasonably obtainable. If, in spite of these steps,
the requester does not describe the records with sufficient
particularity, or the record requested cannot be obtained with a
reasonable amount of effort, the requester shall be notified of the
reasons why the request is denied and of his right to appeal the
determination. Denial of a request to review based on the provisions of
this paragraph shall be taken only under the most extreme circumstances.
(e) If the determination reached is that continued classification is
required, the notification to the requester shall include, whenever
possible, a brief statement as to why the requested material cannot be
declassified. The notification shall also advise the requester of his
right to appeal the determination. A requester who wishes to appeal a
classification review decision, or who has not been notified of a
decision after 60 days, may submit his appeal to the Chairman, Security
Review Committee, Department of Transportation, 400 Seventh Street SW.,
Washington, DC 20590.
(f) If the determination reached is that continued classification is
not required, the information shall be declassified and the material
remarked. The office acting on the request shall then refer the request
to the office originating the material or higher authority to determine
if it is otherwise available for public release under the Freedom of
Information Act (5 U.S.C. 552) and part 7 of the regulations of the
Office of the Secretary (part 7 of this subtitle, ''Public Availability
of Information'').
(1) If the material is available under the Freedom of Information
Act, the requester shall be advised that the material has been
declassified and is available. If the request involves the furnishing
of copies and a fee is to be collected, the requester shall be so
advised pursuant to part 7, subpart H of the regulations of the Office
of the Secretary (part 7, subpart H, of this subtitle), or in the case
of National Transportation Safety Board material, pursuant to the
regulations of the National Transportation Safety Board (14 CFR part
401, subpart C) (part 401 was redesignated as 49 CFR part 801, at 40 FR
30235, July 17, 1975).
(2) If the material is not available under the Freedom of Information
Act, the requester shall be advised that the material has been
declassified but that the record is unavailable pursuant to the Freedom
of Information Act, and that the provisions concerning procedures for
reconsidering decisions not to disclose records, contained in subpart G
of part 7 of the regulations of the Office of the Secretary (part 7,
subpart G, of this subtitle), or in the case of National Transportation
Safety Board material, in 14 CFR part 401, subpart E (part 401 was
redesignated as 49 CFR part 801, at 40 FR 30235, July 17, 1975), apply.
(g) Upon receipt of an appeal from a classification review
determination based upon continued classification, the Departmental
Security Review Committee shall immediately acknowledge receipt and act
on the matter within 30 days. With respect to information originally
classified by or under the primary cognizance of the Department, the
Committee, acting for the Secretary, has authority to overrule previous
determinations in whole or in part when, in its judgment, continued
protection in the interest of national security is no longer required.
When the classification of the material produced in the Department is
based upon a classification determination made by another department or
agency, the Security Review Committee shall immediately consult with its
counterpart committee for that department.
(1) If it is determined that the material produced in the Department
requires continued classification, the requester will be so notified and
advised of his right to appeal the decision to the Interagency
Classification Review Committee.
(2) If it is determined that the material no longer requires
classification, it shall be declassified and remarked. The committee
shall refer the request to the general counsel, or to the head of the
operating administration concerned, or to the Chairman, National
Transportation Safety Board, as the case may be, to determine if the
material is otherwise available for public release under the Freedom of
Information Act (5 U.S.C. 552) and the relevant regulations, and the
provisions set forth in paragraphs (f)(1) and (2) of this section shall
be followed. A copy of the response to the requester shall be provided
to the committee.
(h) Requests for a classification review of material more than 30
years old shall be referred directly to the Archivist of the United
States and the requester shall be notified of the referral. In this
event, the provisions of 8.19 apply.
49 CFR 8.19 Declassification of classified material after 30 years.
(a) Classified material produced in the Department after June 1,
1972, which remains in a protected status, will become automatically
declassified at the end of 30 full calendar years after the date of its
original classification. If it appears, however, that continued
protection is essential to the national security or that disclosure
would place a person in immediate jeopardy, the matter shall be referred
to the Secretary, through the Director of Investigations and Security.
A determination that continued classification is warranted may be made
only by the Secretary.
(b) Classified material produced before June 1, 1972, and which is
more than 30 years old will be reviewed systematically for
declassification by the Archivist of the United States by the end of the
30th full calendar year following the year in which it was originated.
In his review, the Archivist will separate and keep protected only such
material produced by the Department as is specifically identified by the
Secretary as requiring protection. The Director of Investigations and
Security is designated as the liaison officer for the Department with
the Archivist for this purpose. Each administration shall advise the
Director of Investigations and Security of classified material under its
cognizance which is or becomes 30 years old. This notification shall
also include recommendations for protection of the material considered
to warrant continued classification in order that a determination by the
Secretary may be obtained.
49 CFR 8.21 Burden of proof.
For the purpose of determinations to be made under 8.13, 8.15, and
8.17, the burden of proof is on the originating element to show that
continued classification is warranted.
49 CFR 8.23 Classified material transferred to the Department of
Transportation.
(a) Classified material officially transferred to the Department
pursuant to statute or Executive order in conjunction with a transfer of
function, and not merely for storage purposes, shall be considered to
have been originated by the Department for the purpose of downgrading
and declassification.
(b) Classified material in the custody of the Department originated
by a department or agency which has ceased to exist and whose functions
and records were not officially transferred to another department shall
be downgraded and declassified by the Department in accordance with the
provisions of this part. If it appears that another department or
agency may have an interest in the subject matter of the material from a
classification standpoint, that department shall be advised of the
nature of the material and the intention to downgrade or declassify.
The notified department shall be allowed 30 days in which to express an
objection, if it so desires, before action is taken. A difference of
opinion which cannot be resolved shall be referred to the Departmental
Security Review Committee which will consult with its counterpart
committee for the respective department.
49 CFR 8.25 Public availability of declassified information.
(a) It is a fundamental policy of the Department to make information
available to the public to the maximum extent permitted by law.
Information which is declassified for any reason loses its status as
material protected in the interest of national security. Accordingly,
declassified information shall be handled in every respect on the same
basis as all other unclassified information. Declassified information
is subject to the Departmental public information policies and
procedures, with particular reference to regulations of the Office of
the Secretary on public availability of information (Part 7 of this
subtitle) and the Freedom of Information Act (5 U.S.C. 552).
(b) In furtherance of this policy, all classified material produced
after June 1, 1972, which is of sufficient historical or other value to
warrant preservation as permanent records in accordance with appropriate
records administrative standards, and which becomes declassified, shall
be systematically reviewed prior to the end of each calendar year for
the purpose of making the material publicly available. To the maximum
extent possible without destroying the integrity of the Department's
files, all such material shall be segregated or set aside for public
release upon request.
49 CFR 8.27 Access to historical researchers, former Presidential
appointees and contractors.
(a) Historical researchers. (1) Persons outside the executive branch
who are engaged in historical research projects may have access to
classified information provided that:
(i) Access to the information will be clearly consistent with the
interests of national security; and
(ii) The person to be granted access is trustworthy.
(2) The provisions of this paragraph apply only to persons who are
conducting historical research as private individuals or under private
sponsorship and do not apply to research conducted under Government
contract or sponsorship. The provisions are applicable only to
situations where the classified information concerned, or any part of
it, was originated by the Department or Department contractors, or where
the information, if originated elsewhere, is in the sole custody of the
Department. If any person requests access to material originated in
another agency or to information under the exclusive jurisdiction of the
National Archives and Records Service, General Services Administration,
he will be referred to the other agency or to the National Archives and
Records Service.
(3) When a request for access to classified information for
historical research is received, it will be referred to the appropriate
local security office. The security office shall obtain from the
applicant completed Standard Form 86 in triplicate, investigation data
for sensitive position, and Standard Form 87, fingerprint chart; a
statement in detail to justify access, including identification of the
kind of information desired and the organization or organizations, if
any, sponsoring the research; and a written statement (signed, dated,
and witnessed) with respect to the following:
(i) That he will abide by regulations issued by the Department:
(a) To safeguard classified information; and
(b) To protect information which has been determined to be
proprietary or privileged and is therefore not eligible for public
dissemination.
(ii) That he understands that any classified information which he
receives affects the security of the United States.
(iii) That he acknowledges an obligation to safeguard classified
information or privileged information of which he gains possession or
knowledge as a result of his access to files of the Department.
(iv) That he agrees not to reveal to any person or agency any
classified information or privileged information obtained as a result of
his access except as specifically authorized in writing by the
Department and further agrees that he shall not use the information for
purposes other than those set forth in his application.
(v) That he agrees to authorize a review of his notes and manuscript
for the sole purpose of determining that no classified information or
material is contained therein.
(vi) That he understands that failure to abide by conditions of this
statement will constitute sufficient cause for canceling his access to
classified information and for denying him any future access, and may
subject him to criminal provisions of Federal law as referred to in this
statement.
(vii) That he is aware and fully understands that the provisions of
Title 18, United States Code, Crimes and Criminal Procedures, and of the
Internal Security Act of 1950, as amended, Title 50, United States Code,
prescribe, under certain circumstances, criminal penalties for the
unauthorized disclosure of information respecting the national security
and for loss, destruction, or compromise of such information.
(viii) That this statement is made to the U.S. Government to enable
it to exercise its responsibilities for the protection of information
affecting the national security. That he understands that any material
false statement which he makes knowingly and willfully will subject him
to the penalties of Title 18, United States Code, section 1001.
(4) The security office shall process the forms in the same manner as
specified for a preappointment national agency check for a
critical-sensitive position. Upon receipt of the completed national
agency check, the security office, if warranted, may determine that
access by the applicant to the information will be clearly consistent
with the interests of national security and the person to be granted
access is trustworthy. If deemed necessary, before making its
determination, the office may conduct or request further investigation.
Before access is denied in any case, the matter will be referred through
channels to the Director of Investigations and Security for review and
submission to the Secretary for final denial.
(5) If access to Top Secret, intelligence, or communications security
information is involved a full field investigation is required.
However, this investigation shall not be requested until the matter has
been referred through channels to the Director of Investigations and
Security for determination as to adequacy of the justification and the
consent of other agencies as required.
(6) When it is indicated that an applicant's research may extend to
material originating in the records of another agency, approval must be
obtained from the other agency prior to the grant of access.
(7) Approvals for access shall be valid for the duration of the
current research project but no longer than 2 years from the date of
issuance, unless renewed. If a subsequent request for similar access is
made by the individual within 1 year from the date of completion of the
current project, access may again be granted without obtaining a new
National Agency Check. If more than 1 year has elapsed, a new National
Agency Check must be obtained. The local security office shall promptly
advise its security staff, headquarters, of all approvals of access
granted under these provisions.
(8) An applicant may be given access only to that classified
information which is directly pertinent to his approved project. He may
review files or records containing classified information only in
offices under the control of the Department. Procedures must be
established to identify classified material to which he is given access.
He must be briefed on local procedures established to prevent
unauthorized access to the classified material while in his custody, for
the return of the material for secure storage at the end of the daily
working period, and for the control of his notes until they have been
reviewed. In addition to the security review of the applicant's
manuscript, the manuscript must be reviewed by appropriate offices to
assure that it is technically accurate insofar as material obtained from
the Department is concerned and is consistent with the Department's
public release policies.
(b) Former Presidential appointees. Persons who previously occupied
policymaking positions to which they were appointed by the President may
be granted access to classified information or material which they
originated, reviewed, signed, or received, while in public office,
provided that:
(1) It is determined that such access is clearly consistent with the
interests of national security; and
(2) The person agrees to safeguard the information, to authorize a
review of his notes to assure that classified information is not
contained therein, and that the classified information will not be
further disseminated or published.
(c) Contractors. Classified information may be disclosed to DOT
contractors, subcontractors, bidders, and grantees, and to contractors
of other Government agencies, provided access to the information is
necessary to the performance of the contract and required security
clearances have been issued.
49 CFR 8.29 Industrial security.
(a) Background. Executive Order 10865, as amended, Safeguarding
Classified Information Within Industry (25 FR 1583, February 24, 1960)
states,
The Secretary of State, the Secretary of Defense, the Secretary of
Transportation, the Commissioners of the Atomic Energy Commission, the
Administrator of the National Aeronautics and Space Administration,
respectively, shall, by regulation, prescribe such specific
requirements, restrictions, and other safeguards as they consider
necessary to protect:
(1) Releases of classified information to or within U.S. industry
that relate to bidding on, or the negotiation, award, performance, or
termination of, contracts with their respective agencies; and
(2) Other releases of classified information to or within industry
that such agencies have responsibility for safeguarding. So far as
possible, regulations prescribed by them under this order shall be
uniform and provide for full cooperation among the agencies concerned.
Executive Order 10865 also prescribes criteria for the issuance of
security clearances to industry personnel and requirements for the
adjudication of controverted cases.
(b) Implementing regulations. Under an agreement between the
Department of Defense and the Department of Transportation, regulations
prescribed by the Secretary of Defense to fulfill the provisions of
Executive Order 10865, as amended, have been extended to protect
releases of classified information for which the Secretary of
Transportation is responsible. Specifically, these regulations are:
(1) DOD 5220.22-R, Industrial Security Regulation;
(2) DOD 5220.22-M, Industrial Security Manual for Safeguarding
Classified Information, together with supplements; and
(3) DOD 5220.6, Industrial Personnel Security Clearance Program.
These regulations are effective within the Department, which
functions as a User Agency as prescribed in the regulations.
Appropriate security staffs, project personnel, and contracting officers
assure that actions required by the regulations are taken.
(c) Liaison and coordination with Department of Defense. The
Director of Investigations and Security shall maintain liaison and
coordination with the Department of Defense on behalf of the Department
on overall industrial security matters. The Director shall develop such
material as may be necessary to permit the Secretary to reach those
determinations specifically reserved to him by Executive Order 10865, as
amended, and the agreement between the Department of Defense and the
Department of Transportation.
49 CFR 8.29 PART 9 -- TESTIMONY OF EMPLOYEES OF THE DEPARTMENT AND
PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS
Sec.
9.1 Purpose.
9.3 Definitions.
9.5 Testimony by employees in proceedings involving the United
States.
9.7 Legal proceedings between private litigants; general rule.
9.9 Legal proceedings between private litigants; subpoenas.
9.11 Legal proceedings between private litigants; factual testimony.
9.13 Legal proceedings between private litigants; expert or opinion
testimony.
9.15 Legal proceedings between private litigants; disclosure of
records.
9.17 Acceptance of service on behalf of Secretary.
Authority: Sec. 9, 80 Stat. 944, 49 U.S.C. 1657.
Source: Amdt. 9-1, 34 FR 11972, July 16, 1969, unless otherwise
noted.
49 CFR 9.1 Purpose.
(a) This part prescribes the policies and procedures of the
Department with respect to testimony of its employees as witnesses in
legal proceedings, the acceptance of service of legal process and
pleadings in legal proceedings involving the Department, and the
production of records of the Department pursuant to subpoena.
(b) The General Counsel or the appropriate counsel of the operating
administration concerned may grant permission to deviate from a policy
or procedure prescribed by this part. He may grant that permission only
when the deviation will not interfere with matters of operational or
military necessity, and when:
(1) It is necessary to prevent a miscarriage of justice;
(2) The Department has an interest in the decision that may be
rendered in the legal proceeding; or
(3) The deviation is in the best interests of transportation
activities fostered by the Department or the United States.
(c) This part does not apply to any legal proceeding in which an
employee is to testify, while in leave status, as to facts or events
that are in no way related to the duties he performs or to the functions
of the Department.
49 CFR 9.3 Definitions.
For purposes of this part:
Appropriate counsel of the operating administration concerned
includes the General Counsel or Chief Counsel of the operating
administration concerned and any person to whom he has delegated his
authority under this part.
Department means the Department of Transportation, including the
Office of the Secretary and the following operating administrations:
(a) The U.S. Coast Guard.
(b) The Federal Aviation Administration.
(c) The Federal Highway Administration.
(d) The Federal Railroad Administration.
(e) The Urban Mass Transportation Administration.
(f) The St. Lawrence Seaway Development Corporation.
Legal proceeding includes any proceeding before a court of law,
administrative board or commission, hearing officer, or other body
conducting a legal or administrative proceeding.
Legal proceeding between private litigants means any legal proceeding
in which neither the United States nor the Department of Transportation
is directly or indirectly involved.
Employee of the Department means an officer or employee of the
Department and an active duty officer or enlisted member of the Coast
Guard.
(g) The National Highway Traffic Safety Administration.
(Amdt. 9-1, 34 FR 11972, July 16, 1969, as amended by Amdt. 9-2, 35
FR 5331, Mar. 31, 1970; Amdt. 9-3, 36 FR 431, Jan. 13, 1971; Amdt.
9-4, 36 FR 4291, Mar. 4, 1971)
49 CFR 9.5 Testimony by employees in proceedings involving the United
States.
(a) Except as provided in paragraph (c) of this section, an employee
of the Department may not testify as an expert or opinion witness for
any party other than the United States in any legal proceeding in which
the United States is involved, but may testify as to facts.
(b) Whenever, in any legal proceeding involving the United States,
the attorney in charge of presenting the case for the United States
requests it, the General Counsel or appropriate counsel of the operating
administration concerned shall arrange for an employee of the Department
to testify as a witness for the United States.
(c) An employee of the Department may appear and testify as an expert
or opinion witness on behalf of an active duty officer or enlisted
member of the Coast Guard in any legal proceeding conducted by the Coast
Guard.
(Amdt. 9-1, 34 FR 11972, July 16, 1969, as amended by Amdt. 9-4, 36
FR 4290, Mar. 4, 1971)
49 CFR 9.7 Legal proceedings between private litigants; general rule.
Subject to 9.9 and 9.13, an employee of the Department may not
testify as an expert or opinion witness, as to any matter related to his
duties or the functions of the Department, in any legal proceeding
between private litigants, for the following reasons:
(a) To conserve the time of employees for conducting official
business.
(b) To minimize the possibility of involving the Department in
controversial issues that are not related to its mission.
(c) To prevent the possibility that the public will misconstrue
variances between the personal opinions of employees and departmental
policy.
(d) To avoid spending the time and money of the United States for
private purposes.
49 CFR 9.9 Legal proceedings between private litigants; subpoenas.
(a) Whenever, in a legal proceeding between private litigants, an
employee of the Department is served with a subpoena or is requested to
testify, he shall immediately report the service or request to the
General Counsel or appropriate counsel of the operating administration
concerned, who shall determine whether the employee is required to
comply and shall, in appropriate cases, arrange for legal representation
for the employee.
(b) Whenever an employee's compliance with a subpoena would adversely
affect the performance of official duties or require producing records
that are not available for public disclosure, the General Counsel or
appropriate counsel of the operating administration concerned shall
attempt to have the subpoena withdrawn or modified.
49 CFR 9.11 Legal proceedings between private litigants; factual
testimony.
(a) An employee of the Department who has been subpoenaed in a legal
proceeding between private litigants, and who is required to comply with
the subpoena, shall testify only as to facts within his personal
knowledge, even if the facts are contained in a report that he is not
allowed to produce. However, he must obtain the permission of the
General Counsel or appropriate counsel of the operating administration
concerned before disclosing any information that is restricted by
statute or regulation.
(b) An employee who gives factual testimony shall avoid any
statements of opinion.
49 CFR 9.13 Legal proceedings between private litigants; expert or
opinion testimony.
If, while testifying in a legal proceeding between private litigants,
an employee of the Department is asked for expert or opinion testimony,
he shall decline to answer on the grounds that he is forbidden to do so
by this part. If he is then ordered by the body conducting the
proceeding to testify, he shall do so.
49 CFR 9.15 Legal proceedings between private litigants; disclosure of
records.
(a) Copies of any records available for public inspection under part
7 of this subtitle, ''Public Availability of Information'', are
available, as provided in that part, to litigants upon request.
(b) If an employee of the Department receives a subpoena or request
to produce records in court or before any other body, he shall refer it
to the General Counsel or appropriate counsel of the operating
administration concerned. If the subpoena or request calls for
producing records the release of which is authorized, counsel shall
advise that the subpoena or request be honored.
(c) An employee of the Department may not produce a record except
upon a clearance from the General Counsel or appropriate counsel of the
operating administration concerned. If copies of records that are
available for public inspection under part 7 of this subtitle are
subpoenaed, the person subpoenaing them is liable for the fee
established under that part for the production of those records,
including any search for them.
(d) If an employee is served with a subpoena calling for records that
the General Counsel or appropriate counsel of the operating
administration concerned determines should not be released, the General
Counsel or appropriate counsel of the operating administration concerned
shall attempt to have the subpoena withdrawn or modified. If this
cannot be done, the employee shall appear at the time and place
specified in the subpoena, accompanied by an attorney from the Office of
the General Counsel, appropriate counsel of the operating administration
concerned, or the Department of Justice, as appropriate, and explain to
the authority conducting the proceeding that a statute or regulation
prohibits him from producing the records.
(e) If an employee who follows the procedure in paragraph (d) of this
section is ordered to show cause why he should not be cited for contempt
of court, the General Counsel or appropriate counsel of the operating
administration concerned shall request the Department of Justice to
represent the employee.
49 CFR 9.17 Acceptance of service on behalf of Secretary.
Process or pleadings in any legal proceeding may be served, at the
option of the server, on the General Counsel or appropriate counsel of
the operating administration concerned, with the same effect as if
served upon the Secretary or the head of the operating administration
concerned, as the case may be. The official accepting the service under
this section shall acknowledge the service and take further action as
appropriate.
49 CFR 9.17 PART 10 -- MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO INDIVIDUALS
49 CFR 9.17 Subpart A -- Applicability and Policy
Sec.
10.1 Applicability.
10.3 Policy.
10.5 Definitions.
49 CFR 9.17 Subpart B -- General
10.11 Administration of part.
10.13 Privacy Act Officer.
10.15 Protection of records.
49 CFR 9.17 Subpart C -- Maintenance of Records
10.21 General.
10.23 Accounting of disclosures.
10.25 Mailing lists.
10.27 Government contractors.
10.29 Social Security numbers.
49 CFR 9.17 Subpart D -- Availability of Records
10.31 Requests for records.
10.33 Acknowledgment and access.
10.35 Conditions of disclosure.
10.37 Identification of individual making request.
10.39 Location of records.
49 CFR 9.17 Subpart E -- Correction of Records
10.41 Requests for correction of records.
10.43 Time limits.
10.45 Statement of disagreement.
49 CFR 9.17 Subpart F -- Procedures for Reconsidering Decisions not to
Grant Access to or Amend Records
10.51 General.
49 CFR 9.17 Subpart G -- Exemptions
10.61 General exemptions.
10.63 Specific exemptions.
49 CFR 9.17 Subpart H -- Fees
10.71 General.
10.73 Payment of fees.
10.75 Fee schedule.
10.77 Services performed without charge.
49 CFR 9.17 Subpart I -- Criminal Penalties
10.81 Improper disclosure.
10.83 Improper maintenance of records.
10.85 Wrongfully obtaining records.
Appendix A to Part 10 -- Exemptions
Appendix B to Part 10 -- Office of the Secretary
Appendix C to Part 10 -- U.S. Coast Guard
Appendix D to Part 10 -- Federal Aviation Administration
Appendix E to Part 10 -- Federal Highway Administration
Appendix F to Part 10 -- Federal Railroad Administration
Appendix G to Part 10 -- National Highway Traffic Safety
Administration
Appendix H to Part 10 -- Urban Mass Transportation Administration
Appendix I to Part 10 -- Saint Lawrence Seaway Development
Corporation
Appendix J to Part 10 -- Research and Special Programs Administration
Authority: Pub. L. 93-579, sec. 9, Department of Transportation
Act, Pub. L. 89-670; 49 U.S.C. 1657.
Source: 45 FR 8993, Feb. 11, 1980, unless otherwise noted.
49 CFR 9.17 Subpart A -- Applicability and Policy
49 CFR 10.1 Applicability.
(a) This part implements section 552a of title 5, United States Code,
as well as other provisions of the Privacy Act of 1974, and prescribes
rules governing the availability of those records of the Department of
Transportation which relate to citizens of the United States and aliens
lawfully admitted for permanent residence.
(b) Appendices B through J to this part:
(1) Describe the places and times at which records are available for
inspection and copying;
(2) Indicate the systems of records located at each facility;
(3) Identify the officials having authority to deny requests for
disclosure of records under this part;
(4) Describe the procedures to be followed in requesting correction
of a record in accordance with 10.41 of this part; and
(5) List additional personal identification requirements in
accordance with 10.37 of this part.
(c) The Assistant Secretary for Administration may amend appendix B
to this part to reflect any changes in the items covered by that
appendix, relating to the Office of the Secretary of Transportation.
The Administrator concerned may amend the appendix applicable to that
administration to reflect any changes in the terms covered by that
appendix.
(d) Appendix A to this part identifies systems of records which are
exempt from some of the requirements of this part, in accordance with
subpart G and 5 U.S.C. 552a (j) and (k). Appendix A may be amended by
the General Counsel upon the request of the Assistant Secretary for
Administration in the case of a system of records maintained by the
Office of the Secretary or the Administrator concerned in the case of a
system of records maintained by an operating administration.
49 CFR 10.3 Policy.
It is the policy of the Department of Transportation to comply with
the letter and the spirit of the Privacy Act (the Act). Therefore,
personal data contained in each system of records is afforded adequate
protection against unauthorized access, is as accurate as is feasible,
and is limited to that necessary to accomplish the stated use or uses of
the system. Further, no system of records is exempted from the
requirements of the Act unless it is determined that to do so is in the
best interest of the government with due concern for individual rights.
49 CFR 10.5 Definitions.
Unless the context requires otherwise, the following definitions
apply in this part:
Administrator means the head of an operating administration and
includes the Commandant of the Coast Guard.
Department means the Department of Transportation, including the
Office of the Secretary and the following operating administrations:
(a) The United States Coast Guard.
(b) The Federal Aviation Administration.
(c) The Federal Highway Administration.
(d) The Federal Railroad Administration.
(e) The National Highway Traffic Safety Administration.
(f) The Urban Mass Transportation Administration.
(g) The St. Lawrence Seaway Development Corporation.
(h) The Research and Special Programs Administration.
General Counsel means the General Counsel of the Department.
Includes means ''includes but is not limited to;''
Individual means a citizen of the United States or an alien lawfully
admitted;
Maintain includes maintain, collect, use, or disseminate;
May is used in a permissive sense to state authority or permission to
do the act prescribed;
Record means any item, collection, or grouping of information about
an individual that is maintained by the Department including, but not
limited to, education, financial transactions, medical history, and
criminal or employment history and that contains the name of, or an
identifying number, symbol, or other identifying particular assigned to,
the individual, such as a finger or voice print or a photograph;
Secretary means the Secretary of Transportation or any person to whom
has been delegated authority in the matter concerned;
System of records means a group of any records under the control of
the Department from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual;
Statistical record means a record in a system of records maintained
for statistical research or reporting purposes only and not in whole or
in part in making any determination about an identifiable individual,
except as provided by section 8 of title 13, United States Code; and
Routine use means, with respect to the disclosure of a record, the
use of such record for a purpose which is compatible with the purpose
for which it was collected.
49 CFR 10.5 Subpart B -- General
49 CFR 10.11 Administration of part.
Except as provided in subpart F of this part, authority to administer
this part in connection with the records of the Office of the Secretary
is delegated to the Assistant Secretary for Administration. Authority
to administer this part in connection with records in each operating
administration is delegated to the Administrator concerned. An
Administrator may redelegate to officers of that administration the
authority to administer this part in connection with defined systems of
records. An Administrator, however, may redelegate his or her duties
under subparts F and G of this part only to his or her deputy and to not
more than one other officer who reports directly to the Administrator
and who is located at the headquarters of that administration or at the
same location as the majority of that administration's systems of
records.
49 CFR 10.13 Privacy Act Officer.
(a) To assist in the oversight of the implementation and continuing
administration and in evaluating the effectiveness of compliance with
the Act, the Assistant Secretary for Administration appoints a principal
coordinating official with the title Privacy Act Officer, and one
Privacy Act Coordinator from his staff.
(b) Inquiries concerning Privacy Act matters, or requests for
assistance, may be addressed to the Privacy Act Officer (M-30),
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590.
(c) Administrators may designate Privacy Act Officers or Coordinators
to act as central coordinators within their administrations to assist
them in administering the Act.
49 CFR 10.15 Protection of records.
(a) No person may, without permission, remove any record made
available for inspection or copying under this part from the place where
it is made available. In addition, no person may steal, alter,
mutilate, obliterate, or destroy, in whole or in part, such a record.
(b) Section 641 of title 18 of the United States Code provides, in
pertinent part, as follows:
Whoever * * * steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or disposes of
any record * * * or thing of value of the United States or of any
department or agency thereof * * * shall be fined not more than $10,000
or imprisoned not more than 10 years or both; but if the value of such
property does not exceed the sum of $100, he shall be fined not more
than $1,000 or imprisoned not more than one year or both * * *.
(c) Section 2071 of title 18 of the United States Code provides, in
pertinent part, as follows:
Whoever willfully and unlawfully conceals, removes, mutilates,
obliterates, or destroys, or attempts to do so, or with intent to do so
takes and carries away any record, proceeding, map, book, paper,
document, or other thing, filed or deposited * * * in any public office,
or with any * * * public officer of the United States, shall be fined
not more than $2,000 or imprisoned not more than 3 years, or both.
49 CFR 10.15 Subpart C -- Maintenance of Records
49 CFR 10.21 General.
Except to the extent that a system of records is exempt in accordance
with subpart G of this part, the Department, with respect to each system
of records:
(a) Maintains in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
Department required to be accomplished by statute or by executive order
of the President;
(b) Collects information to the greatest extent practicable directly
from the subject individual when the information may result in adverse
determinations about an individual's rights, benefits, or privileges
under Federal programs;
(c) Informs each individual whom it asks to supply information, on
the form which it uses to collect the information or on a separate form
that can be retained by the individual of:
(1) The authority (whether granted by statute, or by excecutive order
of the President) which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
(2) The principal purpose or purposes for which the information is
intended to be used;
(3) The routine uses, as published pursuant to paragraph (d)(4) of
this section, which may be made of the information; and
(4) The effects, if any, on the individual of not providing all or
any part of the requested information;
(d) Publishes in the Federal Register at least annually a notice of
the existence and character of the system of records, including;
(1) The name and location of the system;
(2) The categories of individuals on whom records are maintained in
the system;
(3) The categories of records maintained in the system;
(4) Each routine use of the records contained in the system,
including the categories of users and the purpose of such use;
(5) The policies and practices regarding storage, retrievability,
access controls, retention, and disposal of the records;
(6) The title and business address of the official responsible for
the system of records;
(7) The procedures whereby an individual can be notified upon request
if the system of records contains a record pertaining to that
individual;
(8) The procedures whereby an individual can be notified upon request
how to gain access to any record pertaining to that individual contained
in the system of records, and how to contest its content; and
(9) The categories of sources of records in the system;
(e) Maintains all records which are used in making any determination
about any individual with such accuracy, relevancy, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination;
(f) Prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to 10.35(a)(2), makes reasonable efforts to assure that such records
are accurate, complete, timely, and relevant for the Department's
purposes;
(g) Maintains no record describing how any individual exercises
rights guaranteed by the First Amendment unless:
(1) Expressly authorized by the General Counsel; and
(2) Expressly authorized by statute or by the individual about whom
the record is maintained or unless pertinent to and within the scope of
an authorized law enforcement activity;
(h) Makes reasonable efforts to serve notice on an individual when
any record on such individual is made available to any person under
compulsory legal process when such process becomes a matter of public
record.
49 CFR 10.23 Accounting of disclosures.
Each operating administration and the Office of the Secretary, with
respect to each system of records under its control:
(a) Except for disclosures made under 10.35(a) (1) or (2) of this
part, keep an accurate accounting of:
(1) The date, nature, and purpose of each disclosure of a record to
any person or to another agency made under 10.33; and
(2) the name and address of the person or agency to whom the
disclosure is made;
(b) Retains the accounting made under paragraph (a) of this section
for at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made;
(c) Except for disclosures made under 10.33(a)(7) of this part,
makes the accounting made under paragraph (a)(1) of this section
available to the individual named in the record at his request; and
(d) Informs any person or other agency about any correction or
notation of dispute made by the agency in accordance with 10.45 of any
record that has been disclosed to the person or agency if an accounting
of the disclosure was made.
49 CFR 10.25 Mailing lists.
An individual's name and address is not sold or rented unless such
action is specifically authorized by law. This provision shall not be
construed to require the withholding of names and addresses otherwise
permitted to be made public.
49 CFR 10.27 Government contractors.
When the Department provides by a contract for the operation by or on
behalf of the Department of a system of records to accomplish a function
of the Department, the requirements of this part are applied to such
system. For purposes of subpart I, Criminal Penalties, any such
contractor and any employee of the contractor are considered, in
accordance with section 3(m) of the Privacy Act, to be employees of the
Department.
49 CFR 10.29 Social Security numbers.
(a) No individual is denied any right, benefit, or privilege provided
by law because of such individual's refusal to disclose his Social
Security account number.
(b) The provisions of paragraph (a) of this section do not apply to:
(1) Any disclosure which is required by Federal statute; or
(2) The disclosure of a Social Security number when such disclosure
was required under statute or regulation adopted prior to January 1,
1975, to verify the identity of an individual.
(c) When an individual is requested to disclose his or her Social
Security account number, that individual is informed whether that
disclosure is mandatory or voluntary, by what statutory or other
authority such number is solicited, what uses are made of it, and what
detriments, including delay in the location of records, are incurred if
the number is not provided.
49 CFR 10.29 Subpart D -- Availability of Records
49 CFR 10.31 Requests for records.
(a) Ordinarily, each person desiring to determine whether a record
pertaining to him or her is contained in a system of records covered by
this part or desiring access to a record covered by this part, or to
obtain a copy of such a record, shall make a request in writing as
provided in the pertinent appendix to this part. In exceptional cases
oral requests are accepted.
(b) Each request shall specify the name of the requesting individual
and the system of records in which the subject record is located or
thought to be located. If assistance is required to determine the
system of records identification number assigned in the systems notices,
such assistance may be obtained from the appropriate Privacy Act Officer
or his Assistant. Refer to 10.13 for procedures for requesting
assistance.
49 CFR 10.33 Acknowledgment and access.
(a) Requests by an individual to determine whether he or she is the
subject of a record in a system of records, or requesting access to a
record in a system of records, should be acknowledged within 10 working
days, where the request is by mail. For requests in person, an
immediate response is given, either granting access or informing such
individual when notification or access may be expected.
(b) If the response granting access or copies of the record is made
within 10 working days, separate acknowledgment is not required.
(c) Although requests for access to a record are normally in writing,
e.g., by filing a written form or letter, it is the option of the
individual to mail or present the request form in person.
49 CFR 10.35 Conditions of disclosure.
(a) No record which is contained within a system of records within
the Department is disclosed by any means of communication to any person,
or to another agency, except pursuant to a written request by, or with
the prior written consent of, the individual to whom the record
pertains, unless disclosure of the record would be:
(1) To those officers and employees of the Department who have a need
for the record in the performance of their duties;
(2) Required under part 7 of this title which implements the freedom
of Information Act;
(3) For a routine use as defined in 10.5 and described pursuant to
10.21(d)(4);
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
title 13, United States Code;
(5) To a recipient who has provided the Department with advance
adequate written assurance that the record will be used solely as a
statistical research or reporting record, and the record is to be
transferred in a form that is not individually identifiable;
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(9) To either House of the Congress, or to the extent of matters
within its jurisdiction, any committee or subcommittee thereof, any
joint committee of the Congress or subcommittee of any such joint
committee;
(10) To the Comptroller General, or any authorized representatives,
in the course of the performance of the duties of the General Accounting
Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(b) Any individual requesting access to his or her record or to any
information pertaining to that individual which is contained within a
system of records within the Department has access to that record or
information unless the system of records within which the record or
information is contained is exempted from disclosure in accordance with
subpart G, provided, however, that nothing in this part is deemed to
require that an individual be given access to any information compiled
in reasonable anticipation of a civil action or proceeding. No
exemption contained in subpart G of part 7 of the regulations of the
Office of the Secretary is relied upon to withhold from an individual
any record which is otherwise accessible to such individual under the
provisions of this part. Any individual who is given access to a record
or information pertaining to him is permitted to have a person of his or
her own choosing accompany him and to have a copy made of all or any
portion of the record or information in a form comprehensible to the
individual. When deemed appropriate, the individual may be required to
furnish a written statement authorizing discussion of his record in the
accompanying person's presence.
(c) Medical records. Where requests are for access to medical
records, including psychological records, the decision to release
directly to the individual, or to withhold direct release, shall be made
by a medical practitioner. Were the medical practitioner has ruled that
direct release will do harm to the individual who is requesting access,
normal release through the individual's chosen medical practitioner will
be recommended. Final review and decision on appeals of disapprovals of
direct release will rest with the General Counsel.
(d) Any person requesting access to records or to any information
pertaining to other individuals is not granted such access unless that
person can show that he or she has obtained permission for such access
from the individual to whom the record pertains, unless the request
comes within one of the exceptions of paragraph (a) of this section.
49 CFR 10.37 Identification of individual making request.
No record or information contained in a system of records is
disclosed to an individual nor is any correction of a record in
accordance with subpart E made at the request of an individual unless
that individual demonstrates that he or she is who he or she claims to
be. Normally, identity can be proven for individuals who appear in
person by the presentation of an identifying document issued by a
recognized organization (e.g., a driver's license or a credit card) and
which contains a means of verification such as a photograph or a
signature. For requests by mail, the unique identifier used in the
system should be included if known. Responses to mail requests are
normally sent only to the name and address listed in the system of
records. In the case of particularly sensitive records, additional
identification requirements may be imposed. In such cases, these
additional requirements are listed in the public notice for the system
and in the appropriate appendix to this part.
49 CFR 10.39 Location of records.
Each record made available under this subpart is available for
inspection and copying during regular working hours at the place where
it is located or, upon reasonable notice, at the document inspection
facilities of the Office of the Secretary or each administration as set
forth in the appendix applicable to that office or administration.
Original records may be copied but may not be released from custody.
Upon payment of the appropriate fee, copies are mailed to the requester.
49 CFR 10.39 Subpart E -- Correction of Records
49 CFR 10.41 Requests for correction of records.
Any person who desires to have a record pertaining to that person
corrected shall submit a written request detailing the correction and
the reasons the record should be so corrected. Requests for correction
of records shall be submitted in accordance with the procedures of the
organization set forth in appendices B through J to this part for the
appropriate operating element of the Department.
49 CFR 10.43 Time limits.
Within ten days (excluding Saturday, Sunday, and legal holidays) of
the receipt in accordance with 10.41 of a request by an individual to
amend a record pertaining to him, the receipt of the request is
acknowledged in writing. If a determination is made to correct the
record as requested, the correction is promptly made. If a
determination is made not to correct a record the individual is informed
promptly of the right to appeal in accordance with subpart F. If an
appeal of a refusal to correct a record is in accordance with subpart F,
a determination whether to correct the record is made within thirty days
(excluding Saturday, Sunday and legal holidays) of the receipt of the
appeal unless, for good cause shown the Administrator concerned, or in
the case of the Office of the Secretary, the General Counsel, extends
such period. Where an extension is taken, the party taking the appeal
is promptly notified of such fact.
49 CFR 10.45 Statement of disagreement.
If a determination is made not to amend a record, the requester is
informed of the right to file a concise statement setting forth the
reasons for disagreement with the refusal to amend. In any disclosure
containing information about which an individual has filed such a
statement of disagreement, the portions of the record which are disputed
are noted clearly and copies of the statement of disagreement provided.
If the Administrator concerned or his or her delegee, or in the case of
the Office of the Secretary, the General Counsel or his or her delegee,
deems it appropriate, copies of a concise statement of the reasons for
not making the amendments requested may be provided along with the
statement of disagreement.
49 CFR 10.45 Subpart F -- Procedures for Reconsidering Decisions not to Grant Access to or Amend Records
49 CFR 10.51 General.
(a) Each officer or employee of the Department who, upon a request by
a member of the public for a record under this part, makes a
determination that access is not to be granted or who determines not to
amend a record in a requested manner, gives a written statement of the
reasons for that determination to the person making the request and
indicates the name and title or position of each person responsible for
the denial of such request and the procedure for appeal within the
Department.
(b) Any person:
(1) Who has been given a determination pursuant to paragraph (a) of
this section, that access will not be granted; or
(2) Who has been informed that an amendment to a requested record
will not be made;
may apply to the Administrator concerned, or in the case of the
Office of the Secretary, to the General Counsel for review of that
decision. A determination that access will not be granted or a record
amended is not administratively final for the purposes of judicial
review unless it was made by the Administrator concerned or his or her
delegee, or the General Counsel or his or her delegee, as the case may
be. Upon a determination that an appeal will be denied, the requester
is informed in writing of the reasons for the determination, and the
names and titles or positions of each person responsible for the
determination, and that the determination may be appealed to the
District Court of the United States in the district in which the
complainant resides, or has his or her principal place of business, or
in which the records are located, or in the District of Columbia.
(c) Each application for review must be made in writing and must
include all information and arguments relied upon by the person making
the request. It is recommended that such request be made within 180
days of the date of the initial denial; however, exceptions to this
time period are considered in the event that a longer time is required
for good reasons.
(d) Upon a determination that a request for the correction of a
record will be denied, the requester is informed that he may file a
concise statement in accordance with 10.45.
(e) Each application for review must indicate that it is an appeal
from a denial of a request made under the Privacy Act. The envelope in
which the application is sent should be marked prominently with the
words ''Privacy Act.'' If these requirements are not met, the time
limits described in 10.43 do not begin to run until the application has
been identified by an employee of the Department as an application under
the Privacy Act and has been received by the appropriate office.
(f) The Administrator concerned, or the General Counsel, as the case
may be, may require the person making the request to furnish additional
information, or proof of factual allegations, and may order other
proceedings appropriate in the circumstances. The decision of the
Administrator concerned, or the General Counsel, as the case may be, as
to the availability of the record or whether to amend the record is
administratively final.
(g) The decision by the Administrator concerned, or the General
Counsel, as the case may be, not to disclose a record under this part is
considered a determination for the purposes of section 552a(g) of title
5, United States Code, ''Civil Remedies.''
(h) Any final decision by an Administrator or his or her delegee,
identified in appendices B through J of this part, not to grant access
to or amend a record under this part, is subject to concurrence by the
General Counsel or his or her delegee.
49 CFR 10.51 Subpart G -- Exemptions
49 CFR 10.61 General exemptions.
(a) The Assistant Secretary for Administration, with regard to the
Investigations Divisions; the Federal Aviation Administrator, with
regard to the FAA's Investigative Record System (DOT/FAA 815) and also
with regard to the police functions of the National Capital Airport
Police; the Commandant of U.S. Coast Guard, with regard to the
Intelligence and Security Division; and the Federal Railroad
Administrator, with regard to the Alaska Railroad Special Agents, may
exempt from any part of the Act and this part except subsections (b),
(c)(1) and (2), (e)(4)(A), through (F), (e)(6), (7), (9), (10), and
(11), and (i) of the Act, and implementing 10.35, 10.23(a) and (b),
10.21(d)(1) through (6), 10.81, 10.83, and 10.85, any systems of
records, or portions thereof, which they maintain which consist wholly
of;
(1) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition of
criminal charges, sentencing, confinement, release, and parole and
probation status;
(2) Information compiled for the purpose of a criminal investigation,
including reports of informants and investigators, and associated with
an identifiable individual; or
(3) Reports identifiable to an individual compiled at any stage of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
(b) The requirements (including general notice) of sections
553(b)(1), (2) and (3), and (c) and (e) of title 5, United States Code,
will be met by publication in appendix A to this part, which must, at a
minimum, specify:
(1) The name of the system; and
(2) The specific provisions of the Act from which the system is to be
exempted and the reasons therefor.
(c) Any decision to exempt a system of records under this section is
subject to concurrence by the General Counsel.
(d) Any person may petition the Secretary in accordance with the
provisions of part 5 of this title, to institute a rulemaking proceeding
for the amendment or repeal of any exemptions established under this
section.
49 CFR 10.63 Specific exemptions.
The Secretary or his or her delegee, in the case of the Office of the
Secretary, or the Administrator or his or her delegee, in the case of an
operating administration, may exempt any system of records which is
maintained by the Office of the Secretary or the administration, as the
case may be, from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and
(I), and (f) of the Act and implementing 10.23(c); 10.35(b); 10.41;
10.43; 10.45; 10.21(a) and 10.21(d)(6), (7) and (8) of this part,
under the following conditions;
(a) The system of records must consist of:
(1) Records subject to the provisions of section 552(b)(1) of title
5, United States Code;
(2) Investigatory material compiled for law enforcement purposes,
other than material within the scope of 10.61(a)(2): Provided,
however, That if any individual is denied any right, privilege, or
benefit to which that individual would otherwise be entitled by Federal
law, or for which that individual would otherwise be eligible, as a
result of the maintenance of such material, such material is provided to
such individual, except to the extent that the disclosure of such
material would reveal the identity of a source who furnished information
to the Government under an express promise that the identity of the
source would be held in confidence, or, prior to September 27, 1975, the
effective date of the Privacy Act of 1974, under an implied promise that
the identity of the source would be held in confidence;
(3) Records maintained in connection with providing protective
services to the President of the United States or other individuals
pursuant to section 3056 of title 18, United States Code;
(4) Records required by statute to be maintained and used solely as
statistical records;
(5) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for Federal
civilian employment, military service, Federal contracts, or access to
classified information, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or, prior to September 27,
1975, the effective date of the Privacy Act of 1974, under an implied
promise that the identity of the source would be held in confidence;
(6) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service the disclosure of which would compromise the objectivity or
fairness of the testing or examination process; or
(7) Evaluation material used to determine potential for promotion in
the armed services, but only to the extent that the disclosure of such
material would reveal the identity of a source who furnished information
to the Government under an express promise that the identity of the
source would be held in confidence, or, prior to the effective date of
this section, under an implied promise that the identity of the source
would be held in confidence.
(b) The requirements (including general notice) of sections 553 (b)
(1), (2) and (3), and (c) and (e) of title 5, United States Code, will
be met by publication in appendix A to this part, which must, at a
minimum, specify:
(1) The name of the systems; and
(2) The specific provisions of the Act from which the system is to be
exempted and the reasons therefor.
(c) Any decision to exempt a system of records under this section is
subject to the concurrence of the General Counsel.
(d) Any person may petition the Secretary in accordance with the
provisions of 49 CFR part 5, to institute a rulemaking for the amendment
or repeal of any exemptions established under this section.
49 CFR 10.63 Subpart H -- Fees
49 CFR 10.71 General.
This subpart prescribes fees for services performed for the public
under this part by the Department.
49 CFR 10.73 Payment of fees.
The fees prescribed in this subpart may be paid by check, draft, or
postal money order payable to the Treasury of the United States.
49 CFR 10.75 Fee schedule.
The applicant must furnish the necessary number of blank magnetic
tapes. The tapes must be compatible for use in the supplier's computer
system, 1/2 inch wide and 2,400 feet long, and must be capable of
recording data at a density of 556 or 800 characters per inch. Unless
otherwise designated, the tapes will be recorded at 556 CPI density.
The Department of Transportation is not responsible for damaged tape.
However, if the applicant furnishes a replacement for a damaged tape,
the duplication process is completed at no additional charge.
49 CFR 10.77 Services performed without charge.
(a) No fee is charged for time spent in searching for records or
reviewing or preparing correspondence related to records subject to this
part.
(b) No fee is charged for documents furnished in response to:
(1) A request from an employee or former employee of the Department
for copies of personnel records of the employee;
(2) A request from a Member of Congress for official use;
(3) A request from a State, territory, U.S. possession, county or
municipal government, or an agency thereof;
(4) A request from a court that will serve as a substitute for the
personal court appearance of an officer or employee of the Department;
(5) A request from a foreign government or an agency thereof, or an
international organization.
(c) Documents are furnished without charge or at a reduced charge, if
the Assistant Secretary of Administration or the Administrator
concerned, as the case may be, determines that waiver or reduction of
the fee is in the public interest, because furnishing the information
can be considered as primarily benefiting the general public.
(d) When records are maintained in computer-readable form rather than
human-readable form, one printed copy is made available which has been
translated to human-readable form without a charge for translation but
in accordance with 10.75(g), regarding computer line-printed charges.
49 CFR 10.77 Subpart I -- Criminal Penalties
49 CFR 10.81 Improper disclosure.
Any officer or employee of the Department who by virtue of his or her
employment or official position, has possession of, or access to, agency
records which contain individually identifiable information the
disclosure of which is prohibited by this part and who knowing that
disclosure of the specific material is so prohibited, willfully
discloses the material in any manner to any person or agency not
entitled to receive it, is guilty of a misdemeanor and fined not more
than $5,000 in accordance with 5 U.S.C. 552a(i)(1).
49 CFR 10.83 Improper maintenance of records.
Any officer or employee of the Department who willfully maintains a
system of records without meeting the notice requirements of 10.21(d)
of this part is guilty of a misdemeanor and fined not more than $5,000
in accordance with 5 U.S.C. 552a(i)(2).
49 CFR 10.85 Wrongfully obtaining records.
Any person who knowingly and willfully requests or obtains any record
concerning an individual from the Department under false pretenses is
guilty of a misdemeanor and fined not more than $5,000 in accordance
with 5 U.S.C. 552a(i)(3).
49 CFR 10.85 Pt. 10, App. A
49 CFR 10.85 Appendix A to Part 10 -- Exemptions
Part I. General exemptions. Those portions of the following systems
of records that consist of (a) information compiled for the purpose of
identifying individual criminal offenders and alleged offenders and
consisting only of identifying data and notations of arrests, the nature
and disposition of criminal charges, sentencing, confinement, release,
and parole and probation status; (b) information compiled for the
purpose of a criminal investigation, including reports of informants and
investigators, and associated with an identifiable individual; or (c)
reports identifiable to an individual compiled at any stage of the
process of enforcement of the criminal laws from arrest or indictment
through release from supervision, are exempt from all parts of 5 U.S.C.
552a except subsections (b), (c) (1) and (2), (e)(4) (A) through (F),
(e) (6), (7), (9), (10), and (11), and (i):
A. The Investigative Records System maintained by the Assistant
Inspector General for Investigations, Office of the Inspector General,
Office of the Secretary (DOT/OST 100).
B. Police Warrant Files and Central Files maintained by the Police
Branches, Washington National and Dulles International Airports, Federal
Aviation Administration (DOT/FAA 807).
C. Intelligence and Security Investigative Case Systems (DOT/CG 611),
maintained by the Intelligence and Security Division, U.S. Coast Guard,
at headquarters and district offices.
D. The Investigative Records System maintained by the Federal
Aviation Administration regarding criminal investigations conducted by
offices of Investigations and Security at headquarters and FAA Regional
and Center Security Divisions (DOT/FAA 815).
E. Administrative Action and Legal Enforcement System, maintained by
the Chief Counsel, Federal Aviation Administration (DOT/FAA 805).
The purpose of these exemptions is to prevent the compromise or
impairment of criminal investigations conducted by the Office of
Investigations and Security, OST; the Airport Police Branches; and the
Investigations and Security Division, USCG; and the Office of
Investigation and Security, Regional and Center Security Division of
FAA.
Part II. Specific exemptions. A. The following systems of records
are exempt from subsection (c)(3) (Accounting of Certain Disclosures),
(d) (Access to Records), (e)(4) (G), (H), and (I) (Agency Requirements),
and (f) (Agency Rules) of 5 U.S.C. 552a, to the extent that they contain
investigatory material compiled for law enforcement purposes, in
accordance with 5 U.S.C. 552a(k)(2):
1. Investigative Record System maintained by the Federal Aviation
Administration at FAA Regional and Center Air Transportation Security
Divisions; the Investigations and Security Division, Aeronautical
Center; and Office of Investigations and Security, FAA Headquarters,
Washington, D.C. (DOT/FAA 815).
2. FHWA Investigations Case File System, maintained by the Office of
Program Review and Investigations, Federal Highway Administration
(DOT/FHWA 214).
3. FHWA Motor Carrier Safety Proposed Civil and Criminal Enforcement
Cases, maintained by the Bureau of Motor Carrier Safety, Federal Highway
Administration (DOT/FHWA 204).
4. Recreational Boating and Law Enforcement Cases (DOT/CG 505),
maintained by the Office of Boating Safety, U.S. Coast Guard.
5. Port Safety Reporting System -- Individual Violation Histories
(DOT/CG 561), maintained by the Office of Marine Environment and
Systems, U.S. Coast Guard.
6. Merchant Vessel Casualty Reporting System (DOT/CG 590), maintained
by the Office of Merchant Marine Safety, U.S. Coast Guard.
7. U.S. Merchant Seaman's Records (DOT/CG 589), maintained by the
Office of Merchant Marine Safety, U.S. Coast Guard.
8. Intelligence and Security Investigative Case Systems (DOT/CG 611),
maintained by the Office of Operations, U.S. Coast Guard.
9. Port Security Case System (DOT/CG 612), maintained by the Office
of Operations, U.S. Coast Guard.
10. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of
Interest, maintained by the Associate Administrator for Administration,
National Highway Traffic Safety Administration (DOT/NHTSA 458).
11. Investigations of Violations of Marine Safety Laws (DOT/CG 587),
maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.
12. Civil Aviation Security System (DOT/FAA 813), maintained by the
Civil Aviation Security Service, Federal Aviation Administration.
The purpose of these exemptions is to protect investigatory materials
compiled for law enforcement purposes. Disclosure of such material
would hamper law enforcement by prematurely disclosing the knowledge of
illegal activity and the evidentiary basis for possible enforcement
actions.
B. The following systems of records are exempt from subsections
(c)(3) (Accounting of Certain Disclosures), and (d) (Access to Records)
of 5 U.S.C. 552a:
1. Alaska Railroad Security and Freight Claims Investigatory Files
maintained by the Alaska Railroad, Federal Railroad Administration
(DOT/FRA 102).
2. Administrative Action and Legal Enforcement System, maintained by
the Chief Counsel, Federal Aviation Administration (DOT/FAA 805).
3. Investigative Records System, maintained by the Assistant
Inspector General for Investigations in the Office of the Inspector
General (DOT/OST 100).
The purpose of these exemptions is to prevent the compromise or
impairment of law enforcement investigations by alerting individuals
that they are the subject of investigation, and to prevent the
disclosure of the identity or sources of information promised
confidentiality, in accordance with 5 U.S.C. 552a(k)(2).
C. The system of records known as the Alaska Railroad Examination of
Operating Personnel, maintained by the Alaska Railroad, Federal Railroad
Administration (DOT/FRA 100), is exempt from the provisions of
subsection (d) of 5 U.S.C. 552a. The release of these records would
compromise their value as impartial measurement standards for
appointment and promotion within the Federal Service.
D. Those portions of the following systems of records consisting of
investigatory material compiled for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, military service, or access to classified information or
used to determine potential for promotion in the armed services, are
exempt from sections (c)(3) (Accounting of Certain Disclosures), (d)
(Access to Records), (e)(4) (G), (H), and (I) (Agency Requirements), and
(f) (Agency Rules) of 5 U.S.C. 552a to the extent that disclosure of
such material would reveal the identity of a source who provided
information to the Government under an express or, prior to September
27, 1975, an implied promise of confidentiality (5 U.S.C. 552a(k) (5)
and (7)):
1. Investigative Records System, maintained by the Assistant
Inspector General for Investigations in the Office of the Inspector
General (DOT/OST 100).
2. Intelligence and Security Investigative Case System (DOT/CG 611),
maintained by the Office of Operations, U.S. Coast Guard.
3. Officer Selection and Appointment System (DOT/CG 625), maintained
by the Office of Personnel, U.S. Coast Guard.
4. Official Officer Service Records (DOT/CG 626), maintained by the
Office of Personnel, U.S. Coast Guard.
5. Enlisted Recruiting Selection Record System maintained by the
Office of Personnel, U.S. Coast Guard.
6. Officer, Enlisted, and Recruiting Selection Test Files (DOT/CG
628), maintained by the Office of Personnel, U.S. Coast Guard.
7. Enlisted Personnel Record System, (DOT/CG 629), maintained by the
Office of Personnel, U.S. Coast Guard.
8. Coast Guard Personnel Security Program (DOT/CG 633), maintained by
the Office of Personnel, U.S. Coast Guard.
9. Official Coast Guard Reserve Service Record System (DOT/CG 676),
maintained by the Office of Reserve, U.S. Coast Guard.
10. Investigative Record System, maintained by the Federal Aviation
Administration at FAA Regional and Center Air Transportation Security
Divisions; the Investigations and Security Division, Aeronautical
Center; and Office of Investigations and Security, Headquarters,
Washington, D.C. (DOT/FAA 815).
11. Military Training and Education Records (DOT/CG 622), maintained
by the Office of Personnel, U.S. Coast Guard.
12. Files pursuant to suitability for employment with National
Highway Traffic Safety Administration (DOT/NHTSA-457) containing
confidential investigatory reports.
The purpose of these exemptions is to prevent disclosure of the
identities of sources who provide information to the government
concerning the suitability, eligibility, or qualifications of
individuals for Federal civilian employment, contracts, access to
classified information, or appointment or promotion in the armed
services, and who are expressly or, prior to September 27, 1975, implied
promised confidentiality (5 U.S.C. 552a(k) (5) and (7)).
E. Those portions of the following systems of records consisting of
testing or examination material used solely to determine individual
qualifications for appointment or promotion in the Federal Service are
exempt from subsections (c)(3) (Accounting of Certain Disclosures), (d)
(Access to Records), (e)(4) (G), (H) and (I) (Agency Requirements), and
(f) (Agency Rules) of 5 U.S.C. 552a:
1. Officer, Enlisted and Recruiting Selection Test Files (DOT/CG
628), maintained by the Office of Personnel, U.S. Coast Guard.
2. Official Coast Guard Reserve Service Record System (DOT/CG 676),
maintained by the Office of Reserve, U.S. Coast Guard.
3. Military Training and Education Records (DOT/CG 622), maintained
by the Office of Personnel, U.S. Coast Guard.
4. Reference Files (DOT/NHTSA 457), maintained by the National
Highway Traffic Safety Administration personnel offices to determine
fitness for employment prior to hiring.
The purpose of these exemptions is to preserve the value of these
records as impartial measurement standards for appointment and promotion
within the Federal service.
F. Those portions of the following systems of records which consist
of information properly classified in the interest of national defense
or foreign policy in accordance with 5 U.S.C. 552(b)(1) are exempt from
sections (c)(3) (Accounting of Certain Disclosures), (d) (Access to
Records), (e)(4) (G), (H) and (I) (Agency Requirements), and (f) (Agency
Rules) of 5 U.S.C. 552a:
1. Investigative Record System maintained by the Assistant Inspector
General for Investigations in the Office of the Inspector General
(DOT/OST 100).
2. Personnel Security Records System, maintained by the Office of
Investigations and Security, Office of the Secretary (DOT/OST 016).
3. Civil Aviation Security System (DOT/FAA 813), maintained by the
Civil Aviation Security Service, Federal Aviation Administration.
The purpose of these exemptions is to prevent the disclosure of
material authorized to be kept secret in the interest of national
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and
552a(k)(1).
G. Those portions of the following systems of records which consist
of information properly classified in the interest of national defense
or foreign policy in accordance with 5 U.S.C. 552a(b)(1) are exempt from
subsections (c)(3) (Accounting of Certain Disclosures) and (d) (Access
to Records) of 5 U.S.C. 552a:
1. Investigative Records System (DOT/FAA 815), maintained by the
Federal Aviation Administration at FAA Regional and Center Air
Transportation Security Divisions; the Investigations and Security
Division, Aeronautical Center; and Office of Investigations and
Security, Headquarters, Washington, D.C.
The purpose of these exemptions is to prevent the disclosure of
material authorized to be kept secret in the interest of national
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and
552a(k)(1).
49 CFR 10.85 Pt. 10, App. B
49 CFR 10.85 Appendix B to Part 10 -- Office of the Secretary
1. Introduction. This appendix, with respect to the Office of the
Secretary:
a. Describes the places and times at which records are available for
inspection and copying;
b. Indicates the systems of records maintained in the Office of the
Secretary;
c. Identifies the officials having authority to deny requests for
access to records;
d. Describes the procedures to be followed in requesting correction
of a record; and
e. Describes identification requirements which may be in addition to
those delineated in 10.35 of these regulations.
An individual requiring assistance, concerning this appendix or
systems maintained in the Office of the Secretary, may contact the
Privacy Act Officer, or Privacy Act Coordinator, Office of the Assistant
Secretary for Administration, M-20, 400 Seventh Street, SW., Washington,
DC 20590.
2. Availability for Inspection and Copying.
a. Records in systems maintained in the Office of the Secretary (OST)
are available at 400 Seventh Street SW., Washington, DC, except where
otherwise noted:
(1) Records are maintained at 2100 Second Street SW., Washington, DC,
for the following systems:
(a) DOT/OST 011 Discrimination Complaint Investigative Files;
(b) DOT/OST 042 Technical Pipeline Safety Standards Committee.
(2) DOT/OST 013 Employee Management Files: Records for the employees
at each location are located as delineated in the system notice.
(3) DOT/OST 015 Funds Management Records: Central records are
maintained at 400 Seventh Street SW., Washington, DC. Records for the
applicable region are maintained in the office of each of the eleven
Regional Emergency Transportation Coordinators, as delineated in the
system notice.
(4) DOT/OST 022 National Defense Executive Reserve File: Complete
records are maintained at 400 Seventh Street SW., Washington, DC.
Applicable records are maintained in a wide variety of field offices as
delineated in the system notice.
(5) DOT/OST 028 Personnel Convenience Files: Employee records
applicable to the Complaints Division of the Office of Civil Rights of
the Office of the Secretary are located at 2100 Second Street SW.,
Washington, DC. All other records are located at 400 Seventh Street
SW., Washington, DC.
(6) DOT/OST 043 Telephone Directory and Locator System: Records are
stored on magnetic tape at 13 Massachusetts Avenue NW., Washington, DC.
However, access is controlled by the System Manager: Chief, Accounting
Operations Center, Room 2228, 400 Seventh Street SW., Washington, DC.
(7) DOT/OST 048 Transportation Research Activities Information
System: Records are stored on magnetic tape at the Transportation
Systems Center, Cambridge, Massachusetts. Individuals desiring access
to their own personal data should contact the System Manager: Chief,
Resources Management Division, DPA-20, Department of Transportation, 400
Seventh Street SW., Washington, DC.
(8) DOT/OST 049 Transportation Research Information System: Records
are maintained on magnetic tape at the Battelle Laboratories, Columbus,
Ohio. Individuals desiring access to their own personal data should
contact the System Manager: Chief, Resources Management Division,
DPA-20, Department of Transportation, 400 Seventh Street SW.,
Washington, DC.
(9) DOT/OST 050 Executive Team Cadre Listings: Records are
maintained at 400 Seventh Street SW., Washington, DC, and at the offices
of the Regional Emergency Transportation Coordinators, as delineated in
the system notice.
(10) Records are maintained at the Transportation Systems Center,
Kendall Square, Cambridge, Massachusetts, for the following systems:
(a) DOT/TSC 700 Automated Management Information Systems;
(b) DOT/TSC 701 Employee Travel Records;
(c) DOT/TSC 702 Legal Counsel Information Files;
(d) DOT/TSC 703 Occupational Safety and Health Reporting System;
(e) DOT/TSC 704 Stand-by Personnel Information;
(f) DOT/TSC 706 Automated Planning System;
(g) DOT/TSC 707 Automated Manpower Distribution System;
(h) DOT/TSC 708 Combined Federal Campaign Information;
(i) DOT/TSC 709 Minority Information Files;
(j) DOT/TSC 711 Blood Donor Information File;
(k) DOT/TSC 712 Automated Payroll/Personnel/Communications/Securit
System;
(l) DOT/TSC 713 Employee Payroll-Manpower Distribution System;
(m) DOT/TSC 714 Health Unit Employee Medical Records;
(n) DOT/TSC 715 Bi-Weekly Personnel Status Report.
b. Records are available for inspection and copying at the applicable
locations delineated above between the hours of 9 A.M. and 5:30 P.M.,
except Saturdays, Sundays, and holidays. Access to certain records may
be restricted in accordance with exemptions applied and noticed in
accordance with sections 3 (j) and (k) of the Privacy Act of 1974.
Individuals desiring access to their own records should follow the
instructions contained in the system notice published for each system of
records. Requests for access shall be submitted to the System Manager
having responsibility for the system in which the records are
maintained, unless the system notice describing the system prescribes or
permits submission to some other official or officials.
3. Systems of Records. A compilation of notices describing the
systems of records maintained in the Department of Transportation is
published annually in the Federal Register. The notices describing the
systems maintained in the Office of the Secretary are published in a
block within the overall compilation and each is identified by a
three-digit number preceded by the acronym, OST; e.g., OST 013 (except
those maintained at the Transportation Systems Center which uses the
acronym, TSC; e.g., TSC 701). The basic compilation of system notices,
for systems subject to the Privacy Act of 1974, which are maintained in
the Office of the Secretary, is published in the Federal Register
annually.
4. Access to Records. Requests for access to records are processed
in accordance with the rules provided in subpart D of these regulations.
a. A request from an individual for access to a record pertaining to
such individual is granted promptly unless:
(1) The record was compiled in reasonable anticipation of a civil
action or proceeding; or
(2) The system of records is one which has been exempted from the
notification and access provisions of the Privacy Act by rulemaking; or
(3) The record is not part of a system of records required to be
noticed in accordance with the provisions of the Privacy Act and is not
otherwise required to be made available by a law or regulation; or
(4) The System Manager or other cognizant official determines that
the particular circumstances justify denial of access; or
(5) The information requested is contained in and is inseparable from
another individual's record.
b. When information sought from a system of records in the Office of
the Secretary includes information that has been furnished by an
operating element of the Department or by another agency, as the case
may be, the Systems Manager or other cognizant official consults the
operating element or the other agency, as the case may be, before
granting access. If referral of the request to the operating element or
the other agency, as the case may be, will provide a more expeditious
decision with resulting probable access, the request may be referred to
the operating element or the other agency, as the case may be, but the
requester is notified of the referral.
c. When a Systems Manager or other cognizant official in the Office
of the Secretary determines that a request for access should be denied,
the request and the reason(s) for the determination are referred to the
Assistant Secretary for Administration for decision. In the event of a
decision to deny access, the Office of the Assistant Secretary for
Administration notifies the requester in writing in accordance with
section 10.51 of these regulations.
5. Requests To Correct or Alter Records. An individual may request
that a record pertaining to such individual be amended to correct any
portion thereof which such individual believes is not accurate,
relevant, timely, or complete.
a. A request to amend a record must:
(1) Be in writing and signed by the individual to whom the record
pertains;
(2) Be clearly marked ''Request for Amendment of Record'';
(3) Contain a statement that the request is being made under the
provisions of the Privacy Act of 1974;
(4) Contain the name and address of the individual making the
request;
(5) Specify the name and location of the systems of records, as set
forth in the system notice, in which the record is maintained;
(6) Specify the title and business address of the official designated
in the ''Contesting Record Procedures'' paragraph of the applicable
system notice;
(7) Specify the particular record in the system which the individual
is seeking to amend;
(8) Clearly state the specific changes which the individual wishes to
make in the record and a concise explanation of the reason for the
changes. If the individual wishes to correct or add any information,
the request shall contain specific language making the desired
correction or addition; and
(9) Be addressed to or delivered in person to the office of the
official designated in the ''Contesting Records Procedures'' paragraph
of the applicable system notice. A request delivered to an office in
person must be delivered during the regular office hours of that office.
6. Personal Identification Requirements. Generally, the
identification rules in paragraph 10.35 of these regulations apply to
systems maintained in the Office of the Secretary. In addition,
specific requirements for some systems are delineated below:
a. The notarized signature of the requester is required for requests
by mail for notification and access to records in the following systems:
(1) OST 001 General Employee Records System;
(2) OST 030 Personal Management Convenience Files.
(Note: An individual's social security number is an optional means
of identification, which may be supplied in lieu of notarization. Social
security numbers are used on these records as authorized under the
provisions of Executive Order 9397, dated November 22, 1943.)
b. The notarized signature of the requester is required for requests
by mail for notification and access to records in the following systems:
(1) OST 006 Confidential Statement of Employment and Financial
Interests; and
(2) OST 037 Records of Confirmation Proceeding Requirements.
c. The number of the Federal Emergency Assignee Identification Card
(SF 138) issued to the requester is required for requests by mail for
notification and access to records in the following systems:
(1) OST 022 National Defense Executive Reserve File;
(2) OST 036 Planning Officials for Emergency Functions and;
(3) OST 050 Executive Team Cadre Listings.
d. The name of the applicable advisory committee is required for
notification and access to records in the following system: OST 008
Departmental Advisory Committee Files.
49 CFR 10.85 Pt. 10, App. C
49 CFR 10.85 Appendix C to Part 10 -- U.S. Coast Guard
1. Introduction. This appendix supplements the procedures set forth
for the Department of Transportation in subparts A through I of 49 CFR
part 10.
2. Availability for Inspection and Copying.
a. Individuals who wish the Coast Guard to examine a system of
records covered by this part to determine whether any records in the
system contain information about them or who wish to gain access to or
receive copies of records which contain information about them, should
address written requests either to the appropriate system manager as
listed in the annual description of Coast Guard record systems appearing
in the Federal Register or to: Commandant (G-CMA), U.S. Coast Guard
Headquarters, 400 Seventh Street SW., Washington, DC 20590. Requests
may also be delivered in person to the above address between 7:30 A.M.
and 4 P.M. (Monday through Friday, excluding holidays).
b. The Coast Guard acknowledges requests for notification of the
existence of a record within ten working days (excluding Saturdays,
Sundays and holidays) after receipt of a completed request. The Coast
Guard makes every effort within 30 days of the receipt of a request for
access to a record to:
(1) Make the record available;
(2) Notify the requester of the need for additional information; or
(3) Notify the requester of any denial, either in whole or in part,
of access to a record. Para. 3 of this appendix sets forth the
addresses of Coast Guard district offices and headquarters units where
records in decentralized systems may be located.
3. Systems of Records. The annual notice of systems of records
required by 5 U.S.C. 552a(e)(4) with respect to records maintained by
the Coast Guard is set forth in the Federal Register. Assistance may be
requested in exercising his or her rights by an individual addressing
the Privacy Act Coordinator at one of the following U.S. Coast Guard
offices nearest his residence:
a. Commander, 1st Coast Guard District, 150 Causeway Street, Boston,
MA 02114.
b. Commander, 2nd Coast Guard District, Federal Building, 1520 Market
Street, St. Louis, MO 63013.
c. Commander, 3rd Coast Guard District, Governors Island, New York,
NY 10004.
d. Commander, 5th Coast Guard District, Federal Building, 431
Crawford Street, Portsmouth, VA 23705.
e. Commander, 7th Coast Guard District, Federal Building, 51 S.W.
1st Avenue, Miami, FL 33130.
f. Commander, 8th Coast Guard District, Customhouse, New Orleans, LA
70130.
g. Commander, 9th Coast Guard District, 1240 East 9th Street,
Cleveland, OH 44199.
h. Commander, 11th Coast Guard District, Heartwell Building, 19 Pine
Avenue, Long Beach, CA 90802.
i. Commander, 12th Coast Guard District, 630 Sansome Street, San
Francisco, CA 94126.
j. Commander, 13th Coast Guard District, Federal Building, 915 Second
Avenue, Seattle, WA 98174.
k. Commander, 14th Coast Guard District, P.O. Box 48, FPO San
Francisco 96610.
l. Commander, 17th Coast Guard District, FPO Seattle 98771.
m. Superintendent, U.S. Coast Guard Academy, New London, CT 06320.
n. Commanding Officer, U.S. Coast Guard Yard, Curtis Bay, Baltimore,
MD 21225.
o. Commanding Officer, U.S. Coast Guard Training Center, Governors
Island, New York, NY 10004.
p. Commanding Officer, U.S. Coast Guard Training Center, Cape May, NJ
08204.
q. Commanding Officer, U.S. Coast Guard Training Center, Government
Island, Alameda, CA 94501.
r. Commanding Officer, U.S. Coast Guard Supply Center, 830 3rd
Avenue, Brooklyn, NY 11232.
s. Commanding Officer, U.S. Coast Guard Institute, P.O. Substation
18, Oklahoma City, OK 73169.
t. Commanding Officer, U.S. Coast Guard Aircraft Repair & Supply
Center, Elizabeth City, NC 27909.
u. Commanding Officer, U.S. Coast Guard Aviation Training Center,
Mobile, AL 36608.
v. Commanding Officer, U.S. Coast Guard Radio Station (NMH), 7223
Telegraph Road, Alexandria, VA 22310.
w. Commanding Officer, U.S. Coast Guard Reserve Training Center,
Yorktown, VA 23490.
x. Officer in Charge, Record Depot, U.S. Coast Guard Air Station,
Elizabeth City, NC 27909.
y. Commander, Coast Guard Activities, Europe, London, Box 50, FPO New
York 09510.
z. Commanding Officer, U.S. Coast Guard Training Center, Petaluma, CA
94952.
aa. Commander, U.S. Coast Guard Air Base, Elizabeth City, NC 27909.
bb. Commanding Officer, U.S. Coast Guard Electronics, Engineering
Center, Wildwood, NJ 08260.
cc. Commanding Officer, Research & Development Center, Avery Point,
Groton, CT 06340.
dd. Commanding Officer, U.S. Coast Guard Oceanographic Unit, Building
159E, Navy Yard Annex, Washington, DC 20590.
4. Access to Records.
a. The Coast Guard honors only those requests for notification,
access, or amendment made by:
(1) The individual to whom the record pertains;
(2) The parent or guardian of a minor to whom the record pertains;
(3) The legal guardian of a person to whom the record pertains when
that person has been declared incompetent by reason of physical or
mental disability by a court having jurisdiction of the matter; or
If made by a person other than the individual to whom the record
pertains, the request must specify the relationship of the requester to
that individual.
b. Written requests for information or amendment must be signed by
the requester. Requests for access to records containing sensitive or
detailed personnel information (including, but not limited to, earnings
and tax statements, employee payroll records, employee grievance and
appeal files, civilian, officer, and enlisted personnel files, and
health and medical records (subject to the conditions of 49 CFR 10.33
(b)) may be required to contain the following notarized certification:
I, ---------- , do hereby certify that I am the individual to whom
the record in question pertains.
(or)
I am the parent or guardian of the minor to whom the record in
question pertains.
(or)
I am the legal guardian of the individual determined by a court to be
incompetent to whom the record in question pertains.
--
(Notarization)
(Signature)
(Date)
5. Requests to Correct or Alter Records. The official responsible
for administering a system of records, in consultation as appropriate
with the System Manager, Privacy Act Coordinator, and Privacy Act
Officer, initially determines whether to grant requests under 49 CFR
10.41 to amend records. Requests must be made as provided in paragraph
2a. of this appendix. Requests for amendment must contain a complete
description of the item sought to be changed and documentation to
substantiate the grounds for the requested change. The Coast Guard
acknowledges the receipt of completed requests for amendment within ten
working days. As promptly as possible the Coast Guard advises the
requester whether or not the change has been made, and in cases where a
change has been made, transmits a copy of the amended record to the
requester.
a. When a request for access to a record or amendment of a record is
denied, in whole or in part, the manager of the system of records
involved notifies the requester in writing, of the reasons for the
denial and furnishes the requester a statement of the name and position
or title of each person responsible for the denial. The requester also
is advised of the right to file a written appeal of the adverse decision
within 180 days of receipt of the initial denial. Appeals must be
addressed to: Commandant (G-CMA), U.S. Coast Guard Headquarters, 400
Seventh Street, SW., Washington, DC 20590.
b. Within 30 working days of the receipt of a written appeal, the
Commandant or his designee makes an independent review of the record and
decides whether or not to make the requested disclosure or amendment.
If the appeal is granted, the Coast Guard promptly notifies the
requester of the decision in writing and transmits to the requester a
copy of the record or amended record. If the appeal is denied, the
Coast Guard promptly notifies the requester, in writing, of the reasons
for the denial and furnishes the requester a statement of the name and
position or title of each person responsible for the denial. The Coast
Guard also informs the requester of the right to seek judicial review of
the adverse decision pursuant to 5 U.S.C. 552a(g)(1).
c. In addition to appealing an adverse determination of a request to
amend a record, the requester may file a concise ''statement of
disagreement'' setting forth the reasons for disagreeing with the
refusal of the Coast Guard to amend the record. The notification by the
Coast Guard of the denial of an initial request for amendment or the
denial of an administrative appeal for an amendment informs the
requester of the right to file a statement of disagreement.
d. The Commandant of the Coast Guard, by Commandant Instruction
5212.11 (26 September 1975), has redelegated to the Chief of Staff the
authority under 49 CFR part 10 to:
(1) Exempt systems of records from certain provisions of the Privacy
Act;
(2) Make final administrative determinations not to disclose or amend
a record; and
(3) Issue extensions of review time.
This authority may not be redelegated further.
6. Personal Identification Requirements.
a. When an individual requests notification, access, or amendment in
person, he or she must show identification such as a driver's license,
military or employment identification card, credit card, or medicare
card. An individual requesting in person information about or amendment
to a ''sensitive'' record may be required to complete the notarized
certification set forth in paragraph 4.b of this appendix.
b. The Coast Guard may require more specific information in order to
establish the identify of a requester. For example, the Coast Guard may
require that a legal guardian or personal representative produce
certified copies of court documents appointing him to his position. The
Coast Guard may independently verify the identity of a requester by
telephone contact with the requester, personal identification by Coast
Guard employees who may know the requester, or any other lawful means
considered appropriate under the circumstances.
c. An individual may be accompanied by a person of the individual's
choosing while reviewing records to which he or she has been granted
access, provided that the individual signs a statement authorizing the
accompanying person to do so. An individual granted access to a record
may be required to sign and notarize a statement authorizing the Coast
Guard to release the record to a person (e.g., his attorney) designated
by the individual.
d. No request for information or amendment is considered complete
until all necessary identification material has been provided. No
copies of records are provided to individuals until they pay appropriate
fees as set forth in 49 CFR subpart H.
49 CFR 10.85 Pt. 10, App. D
49 CFR 10.85 Appendix D to Part 10 -- Federal Aviation Administration
1. Introduction. This appendix:
a. Describes the procedures for determining if an individual is the
subject of a record maintained by the Federal Aviation Administration;
b. Describes the availability of records and prescribes requirements
for identifying an individual who requests a record pertaining to him or
her;
c. Prescribes procedures for granting access to an individual upon
that individual's request for the record pertaining to him or her;
d. Prescribes procedures for reviewing a request from an individual
concerning the amendment of any record pertaining to him or her;
e. Prescribes procedures for making a determination on the request of
an individual for amendment of any record pertaining to him or her; and
f. Prescribes procedures for an appeal within the FAA of a
determination not to grant access to or amendment of records.
2. Availability for Inspection and Copying. Records may be inspected
at the FAA facility identified for the particular system of records
appearing in the systems notices published in the Federal Register.
These facilities are open to the public during regular business hours,
except Saturdays, Sundays, and Federal holidays.
3. Systems of Records.
a. A list of FAA systems of records pertaining to the Privacy Act
indicating the geographic locations and the responsible systems managers
has been published in the Federal Register and appears as follows:
(1) September 19, 1977, on pages 47069-47088,
(2) August 28, 1978, on page 38511, and
(3) May 15, 1979, on pages 28439-28447.
b. Any individual who is unable to determine in which FAA-maintained
system the records pertaining to him or her may be found may submit a
written request for assistance to the attention of the Privacy Act
Coordinator located at the region or center nearest to his residence.
The addresses for the regional and center facilities of the FAA are
listed below:
(1) FAA Headquarters, 800 Independence Avenue SW., Washington, DC
20591;
(2) Alaskan Region, 632 Sixth Avenue, Anchorage, AK 99501;
(3) Central Region, 601 East 12th Street, Kansas City, MO 64106;
(4) Southern Region, 3400 Whipple Street, East Point, GA (Mailing
address: P.O Box 20636, Atlanta, GA 30320);
(5) Southwest Region, 4400 Blue Mound Road (Mailing address: P.O.
Box 1689, Fort Worth, TX 76101);
(6) Western Region, 5651 West Manchester Avenue (Mailing address:
P.O. Box 92007, Los Angeles, CA 90009);
(7) Eastern Region, Federal Building, JFK International Airport,
Jamaica, NY 11430;
(8) Pacific Region, 1833 Kalakaua Avenue (Mailing address: P.O. Box
4009, Honolulu, HI 96813);
(9) Aeronautical Center, 6400 South MacArthur Boulevard (Mailing
address: P.O. Box 25082, Oklahoma City, OK 73125);
(10) National Aviation Facilities Experimental Center, Tilton Road,
Route 563 (near Pomona, NJ), (Mailing address: Atlantic City, NJ
08405);
(11) New England Region, 12 New England Executive Park, Burlington,
MA 01803;
(12) Great Lakes Region, 2300 East Devon, Des Plaines, IL 60018;
(13) Rocky Mountain Region, 10455 East 25th Avenue, Aurora, Colorado
80010; and
(14) Northwest Region, FAA Building, 9010 East Marginal Way South,
King County International Airport (Boeing Field), Seattle, WA 98108.
4. Access to Records.
a. Any individual desiring to inspect a record or obtain a copy of a
record pertaining to him or her must present a written request in
accordance with the provisions of this section. An individual making a
request under this section may either appear in person or submit a
request by mail to the address and attention of the system manager as it
appears in the list of systems of records published in the Federal
Register. The individual must first determine in which system of
records he or she believes the particular records pertaining to him or
her are maintained by examining the categories of records and routine
uses in the list of the systems of records published in the Federal
Register and available at the addresses set forth in paragraph 3.b of
this appendix.
b. The individual must include in the request the information
necessary to identify the specific system of records as it appears in
the list of the systems of records of the FAA published in the Federal
Register.
c. Upon request by any individual to gain access to an FAA record
that contains information pertaining to him or her, the FAA official
responsible for the record informs the individual whether the requested
record is exempt under subpart G of this part.
d. An individual making a request under this section is permitted to
inspect and have a copy made of any record pertaining to him or her in a
form comprehensible to him or her, if:
(1) He or she has given identification in accordance with section 6
of this appendix;
(2) The record is not exempt under subpart G of this part; and
(3) The record was not compiled in reasonable anticipation of a civil
action or proceeding. For medical records see 10.35(d).
e. Notwithstanding paragraph d of this section, if an individual
requesting a record pertaining to him or her is accompanied by a person
of his or her own choosing to review the record, the individual making
the request must submit a signed statement authorizing the discussion of
the record in the presence of the accompanying person.
f. Each request for a record determined to be releasable under
paragraph d of this section is complied with within ten days, excluding
Saturdays, Sundays, and Federal holidays. If additional time is
necessary to make the requested record comprehensible to the individual
requesting it, the FAA official responsible for the record notifies the
individual within ten days of the request of the estimated time required
to fill the request.
g. Any individual whose request for access to a record pertaining to
him or her is denied may file a written appeal to the Administrator,
Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591. Appeals submitted under this section must comply
with the requirements of 10.51 of this part.
5. Requests to Correct or Alter Records.
a. Any individual may request an amendment of any record pertaining
to him or her maintained by the FAA in a system of records, by
submitting the request in writing to the attention of the FAA official
responsible for the record at the address appearing in the list of
systems of records published in the Federal Register.
b. Each request for an amendment of a record must be accompanied by a
written explanation as to why the individual believes the present record
is not accurate, timely, relevant, or complete. The individul making
the request may submit any documentation he or she wishes in support of
his request.
c. Upon receipt of a request for an amendment of a record, the FAA
official responsible for the record reviews the record and supporting
documentation and determines if there is a sufficient basis upon which
to make a decision to make the requested amendment. In any case, the
request must be acknowledged within 10 days.
d. If the FAA official responsible for the record determines under
paragraph c of this section that additional information is necessary
before a decision can be made as to whether to make the requested
amendment, the official notifies the individual making the request to
amend specifying what additional information is necessary.
e. If the FAA official responsible for the record determines that the
requested amendment should be made, the official amends the record,
notifies the individual making the request, and sends to that individual
a copy of the corrected record, as well as to other persons or agencies
to whom the record may have been disclosed (See 49 CFR 10.23(d)).
f. If the FAA official responsible for the record determines that the
requested amendment should be denied, the official forwards to his
supervisor the request for amendment with all supporting documentation
and reasons for the denial.
g. If the supervisor determines that the requested amendment should
be made, the supervisor follows the procedures in paragraph e of this
section.
h. If the supervisor determines that the requested amendment should
be denied, the supervisor notifies the individual making the request of
the denial, the reasons therefor, and informs the individual of the FAA
procedures for appealing the denial.
i. Any individual whose request for correction or alteration of a
record pertaining to him or her is denied may file a written appeal to
the Administrator, Federal Aviation Administration, 800 Independence
Avenue SW., Washington, DC 20591. Appeals submitted under this section
must comply with the requirements of 10.51 of this part.
6. Personal Identification Requirements.
a. Each individual making a request under this appendix for a record
pertaining to him or her must present appropriate identification before
the requested record is released. Types of appropriate identification
include:
(1) For requests made in person, a driver's license or employee
identification card; and
(2) For requests made by mail, name (printed or typed, and signature)
and date of birth, or the unique identifier used in the system of
records.
b. If an individual cannot provide appropriate identification as
required in paragraph 6.a of this appendix, or if the record requested
is particularly sensitive, the FAA official responsible for the record
may require the individual to sign a statement certifying his or her
identity and understanding that knowingly and willfully to request or
obtain any record concerning an individual from the FAA under false
pretenses is a misdemeanor punishable by a fine of up to $5,000 as
provided in 5 U.S.C. 552a(i)(3).
49 CFR 10.85 Pt. 10, App. E
49 CFR 10.85 Appendix E to Part 10 -- Federal Highway Administration
1. Introduction. This appendix, with respect to the Federal Highway
Administration (FHWA);
a. Describes the places and times at which records are available for
inspection and copying;
b. Indicates the systems of records maintained in the FHWA;
c. Identifies the officials having authority to deny requests for
access to records;
d. Describes the procedures to be followed in requesting correction
of a record; and
e. Describes identification requirements which may be in addition to
those delineated in paragraph 10.35 of these regulations.
2. Availability for Inspection and Copy. Places and times at which
records are available for inspection and copying, and the system of
records and systems managers having authority at each place.
a. Headquarters: The Federal Highway Administration, 400 7th Street
SW., Washington, DC 20590. Time: 7:45 a.m. -- 4:15 p.m.
Systems of Records and Responsible Systems Managers:
1. Accounts Receivable DOT/FHWA-Chief General Ledger and Funds
Control Section.
2. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Occupational Safety Engineer.
3. Driver Waiver File (BMCS) DOT/FHWA -- Chief, Driver Requirements
Branch.
4. Employee Utilization Monthly Report DOT/FHWA -- Chief, Data
Systems Division.
5. Investigation Case File DOT/FHWA -- Chief, Investigations and
Special Inquiry Division.
6. Medal of Honor File DOT/FHWA -- Chief, Compliance Division.
7. Memorandum of Monthly Performance of Key Punch Operators DOT/FHWA
-- Chief, TCC Operation (Groups A and B).
8. Motor Carrier Accident File (BMCS) Property and Passenger --
Chief, Accident Analysis Branch.
9. Occupational Safety and Health Accident Reporting System DOT/FHWA
-- Occupational Safety Engineer.
10. Payroll Administration DOT/FHWA -- Chief, Payroll and Employee
Records Section.
11. Personnel Records -- (CSC Governmentwide) DOT/FHWA -- Chief,
Personnel Programs Division.
12. Travel Advance File DOT/FHWA -- Chief, Voucher Review and
Disbursement Section.
13. Travel Order (Change of Duty Station) DOT/FHWA -- Chief, Voucher
Review and Disbursement Section.
14. University and Industry Programs Coding and Filing Systems
DOT/FHWA -- Administrative Assistant -- National Highway Institute.
15. Panel for Santa Monica Demonstration Project DOT/FHWA -- Chief,
Urban Planning Division.
b. Regional Offices: Region 1 -- Federal Highway Administration, Leo
W. O'Brien Federal Building, Albany, New York 12207. Time: 8:00
a.m.-4:30 p.m.
Systems of Records and Responsible System Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) -- DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
DOT/FHWA -- Regional Counsel.
3. Travel Advance File -- DOT/FHWA Executive Officer, Region 3 --
Federal Highway Administration, George H. Fallon Federal Office
Building, 31 Hopkins Plaza, Baltimore, Maryland 21201. Time: 8:00
a.m.-4:30 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
-- DOT/FHWA -- Regional Counsel.
3. Travel Advance File -- DOT/FHWA -- Executive Officer, Region 4 --
Federal Highway Administration, 1720 Peachtree Road, NW., Atlanta,
Georgia 30309. Time: 7:45 a.m.-4:15 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
-- DOT/FHWA -- Regional Counsel.
3. Travel Advance File -- DOT/FHWA Executive Officer, Region 5 --
Federal Highway Administration, 18209 Dixie Highway, Homewood, Illinois
60430. Time: 7:30 a.m.-4:00 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
-- DOT/FHWA -- Regional Counsel.
3. Travel Advance File -- DOT/FHWA -- Executive Officer. Region 6 --
Federal Highway Administration, 819 Taylor Street, Fort Worth, Texas
76102. Time: 8:00 a.m.-4:30 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
-- DOT/FHWA -- Regional Counsel.
3. Travel Advance File -- DOT/FHWA -- Executive Officer, Region 7 --
Federal Highway Administration, 6301 Rockhill Road, Kansas City,
Missouri 64131. Time: 7:45 a.m.-4:15 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
-- DOT/FHWA -- Regional Counsel.
3. Travel Advance File -- DOT/FHWA -- Executive Officer. Region 8 --
Federal Highway Administration, P.O. Box 25246, Denver Federal Building
Center, Denver, Colorado 80225. Time: 7:45 a.m.-4:15 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
-- DOT/FHWA -- Regional Counsel.
3. Payroll Administration DOT/FHWA -- Appropriate Finance Officer.
4. Travel Advance File -- DOT/FHWA -- Executive Officer. Region 9 --
Federal Highway Administration, 2 Embarcadero Center, P.O. Box 7616, San
Francisco, California 94120. Time: 7:45 a.m.-4:15 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) -- DOT/FHWA --
Executive Officer.
2. Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases
-- DOT/FHWA -- Regional Counsel.
3. Travel Advance File DOT/FHWA -- Executive Officer. Region 10 --
Federal Highway Administration, 222 SW. Morrison Street, Portland,
Oregon 97204. Time: 8:00 a.m.-4:45 p.m.
Systems of Records and Responsible Systems Managers:
1. Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) -- DOT/FHWA --
Executive Officer.
2. Travel Advance File -- DOT/FHWA -- Executive Officer. Region 15
-- Federal Highway Administration, 1000 North Glebe Road, Arlington,
Virginia 22201. Time: 7:45 a.m.-4:15 p.m.
Systems of Records and Responsible Systems Managers:
Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Executive Officer.
c. Division Offices (For location and hours of duty see 49 CFR Part
7).
Systems of Records and Responsible Systems Managers:
Applications for U.S. Government Motor Vehicle Operator's
Identification Card (U.S. Government Drivers License) DOT/FHWA --
Administrative Managers.
3. Access to Records:
a. Each individual desiring to determine whether a record pertaining
to him or her is contained in a system of records, or desiring access to
such record, or to obtain a copy of such record, shall make request to
the appropriate System Manager. In appropriate circumstances, oral
requests are acted upon. Each request must specify the name of the
requesting individual and the system of records in which the subject
record is located or thought to be located.
4. Requests to Correct or Alter Records:
a. The FHWA allows individuals to request amendment of their personal
records to the extent that such amendment does not violate existing
statutes, regulations, or administrative procedures. Requests to amend
personnel records of active employees should be addressed to the
responsible system managers specified in paragraph 2 above.
b. The System Managers provide written acknowledgment of the receipt
of a request to amend a record to the individual within 10 days.
However, if the request can be reviewed, processed and the individual
notified of compliance or denial within the 10-day working period, no
acknowledgment is required.
c. If the System Manager agrees with an individual's request to amend
the person's record, the following steps are taken:
1. Correct the record accordingly,
2. Advise the individual in writing, and
3. If an accounting of disclosure has been made, advise all previous
recipients of the record of the fact that the correction was made and
the substance of the correction.
d. If the System Manager disagrees with all or any portion of the
request to amend a record, he or she:
1. Proceeds as described above with respect to those portions of the
record which will be amended.
2. Advises the individual of the refusal and the reason for not
amending a record, indicating the name and title or position of each
person responsible for the denial, and
3. Informs the individual of the right to appeal the decision not to
amend a record to: Associate Administrator for Administration, Federal
Highway Administration, Washington, DC 20590.
e. If after this review the FHWA refuses to amend the record on the
individual requested, the FHWA advises the individual:
1. Of the refusal and the reason for it,
2. Of the individual's right to file a concise statement of the
reasons for disagreeing with the decision of the FHWA,
3. The procedures for filing the statement of disagreement,
4. That the statement which is filed will be made available to anyone
to whom the record is subsequently disclosed, and
5. Of the individual's right to seek judicial review of the FHWA's
refusal to amend a record.
f. The final FHWA determination on the individual's request is
concluded within 30 days of the receipt of the appeal unless for good
cause shown, the Associate Administrator for Administration extends such
period. Such final administrative decision addresses all information
and arguments relied upon by the individual.
g. Each application for review by FHWA must indicate that it is an
appeal from a denial of a request made under the Privacy Act. The
envelope in which the application is sent should be marked prominently
with the words ''Privacy Act''.
If these requirements are not met, the time limits described in
10.43 do not begin until the application has been identified by an
employee of the FHWA as an application under the Privacy Act and has
been received by the appropriate office.
h. The Associate Administrator for Administration may require the
person making a request to furnish additional information, or proof of
factual allegations, and may order other appropriate proceedings. His
or her decision as to the availability of a record or whether to amend a
record is administratively final subject to the concurrence of the DOT
General Counsel or his or her delegate. However, requests for review of
denials of information contained in Government-wide systems of personnel
records, which includes the FHWA Personnel Records System, are handled
by the Civil Service Commission in accordance with 5 CFR 294.108 and 5
CFR 297.108.
i. If the Associate Administrator for Administration also refuses to
grant access or to correct the individual's record, he or she advises
the individual of:
1. The reason(s) for the refusal and the names, and titles or
positions of each person responsible for the denial;
2. The individual's right to file a statement of disagreement; that
the statement will be made available to anyone to whom the record is
subsequently disclosed, and to prior recipients of the record (see
10.23(d)), and
3. The right to bring suit in the District Court of the United States
in the district in which the individual resides, the district in which
his principal place of business is located, the district in which the
record(s) is located, or the District of Columbia.
5. Personal Identification Requirements:
a. When a record is applied for in person, the person so applying
must, unless personally known to the custodian of the records, furnish
adequate identification. Such identification may consist of an employee
identification card, Medicare Card, driver's license, or a similar
document.
b. When a record is applied for by mail, sufficient information to
identify the individual must be furnished, and a notarized statement as
to the identity of the requester may be required in some instances when
the record involved contains particularly sensitive information in the
judgment of the systems manager.
49 CFR 10.85 Pt. 10, App. F
49 CFR 10.85 Appendix F to Part 10 -- Federal Railroad Administration
1. Introduction. This appendix, with respect to the Federal Railroad
Administration (FRA):
a. Describes the places and times at which records are available for
inspection and copying;
b. Indicates the systems of records maintained in the Federal
Railroad Administration;
c. Identifies the officials having authority to deny requests for
access to records;
d. Describes the procedures to be followed in requesting correction
of a record; and
e. Describes identification requirements which may be in addition to
those delineated in 10.35 of these regulations.
2. Availability for Inspection and Copying. Places and times at
which records are available for inspection and copying and the systems
of records and systems managers having authority to deny requests for
disclosure at each facility.
a. Records in systems maintained in the Federal Railroad
Administration are available at the Alaska Railroad, Anchorage, Alaska
99510, 9:00 a.m.-4:00 p.m.
Systems of Records and Responsible Systems Managers:
1. Alaska Railroad Examination of Operating Personnel; DOT/FRA
Operations Officer (System Manager).
2. Alaska Railroad Personnel and Pay Management Information System;
DOT/FRA -- General Manager (System Manager).
3. Alaska Railroad Security and Freight Claims Investigatory Files;
DOT/FRA -- Chief, Security and Claims Office (Systems Manager).
b. Places: The Alaska Railroad, Anchorage, Alaska 99510. Hours:
9:00 a.m.-4:00 p.m.
Systems of Records and Responsible Systems Managers:
1. Application for (Vehicle) Operator's Identification Card; DOT/FRA
-- Director, Office of Administrative Operations (System Manager).
2. Confidential Statement of Employment and Financial Interest;
DOT/FRA -- Chief Counsel, Office of the Chief Counsel (System Manager).
3. Employee Travel Records; DOT/FRA -- Accounting Officer,
Accounting Division (System Manager).
4. Occupational Safety and Health Reporting System; DOT/FRA -- FRA
Safety Manager, Office of Administrative Operations (System Manager).
5. Office of Safety Past Employees Files; DOT/FRA -- Deputy
Associate Administrator for Safety (System Manager).
6. Personnel and Pay Management Information Systems; DOT/FRA --
Director, Office of Personnel and Training (System Manager).
7. Travel Advance Records; DOT/FRA -- Director, Office of
Administrative Operations (System Manager).
8. Work Measurement System; DOT/FRA -- Director, Office of
Management Systems.
c. Places: Regional Offices as follows:
Region 2, Federal Railroad Administration, Philadelphia, Pa. 19106.
Region 3, Federal Railroad Administration, College Park, Ga. 30337.
Region 4, Federal Railroad Administration, Chicago, Illinois 60605.
Region 5, Federal Railroad Administration, Ft. Worth, Texas 76102.
Region 6, Federal Railroad Administration, Portland, Oregon 97204.
Region 7, Federal Railroad Administration, San Francisco, California
94102.
Region 8, Federal Railroad Administration, Kansas City, Missouri
64106
Hours: 9:00 a.m.-4:00 p.m.
Systems of Records and Responsible Systems Managers at each Region:
Regional Personnel Convenience Files; DOT/FRA -- Regional Directors
(Systems Manager)
d. Place: Transportation Test Center (TTC) Pueblo, Colorado 81001.
Hours: 9:00 a.m.-4:00 p.m.
System of Records and Responsible System Manager:
Transportation Test Center Employee Service Record File -- Director,
TTC (System Manager)
Transportation Test Center Cost Tracking System -- Director TTC
(System Manager)
3. Access to Records.
a. Each individual desiring to determine whether a record pertaining
to him or her is contained in a system of records or to obtain a copy of
such a record, shall make his request in writing to the appropriate
official listed as responsible system manager in this appendix. Each
request shall specify the name of the requesting individual and the
system of records in which the subject record is located or thought to
be located.
b. FRA allows individuals to request amendment of their personal
records to the extent that such amendment does not violate existing
statutes, regulations, or administrative procedures. Requests to amend
personal records of active employees should be addressed to the
responsible system managers specified in 2.3A-D.
c. The system managers provide written acknowledgment of the receipt
of a request to amend a record to the individual within ten days.
However, if the request can be reviewed, processed and the individual
notified of compliance or denial within the ten-day working period, no
acknowledgment is required.
d. If FRA agrees with an individual's request to amend the person's
record, the following steps are taken:
1. Advises the individual in writing;
2. Corrects the record accordingly; and
3. If a prior disclosure has been made, advises all previous
recipients of the record of the correction and its substance.
e. If FRA, after an initial review by the system manager of a request
to amend a personal record, disagrees with all or any portion of it,
FRA:
1. Advises the individual of refusal and the reasons for it;
2. Informs the individual of procedures to request a further review;
f. If an individual disagrees with the initial determination, the
individual may file a request for a further review of that
determination. The request for a review should be addressed to:
Attn: Privacy Act of 1974, Office of the Chief Counsel, Federal
Railroad Administration, Washington, DC 20590.
g. If after this review FRA refuses to amend the record as the
individual requested, FRA advises the individual:
1. Of refusal and the reasons for it;
2. Of the individual's right to file a concise statement of the
reasons for disagreeing with the decision of the Administration;
3. The procedures for filing the statement of disagreement;
4. That the statement which is filed will be made available to anyone
to whom the record is subsequently disclosed;
5. Of the individual's right to seek judicial review of the refusal
to amend a record.
h. The final FRA determination on the individual's request is
concluded within thirty (30) working days unless the FRA Administrator
determines that a fair and equitable review cannot be completed in that
time-frame. If additional time is required, the individual is informed
in writing of reasons for the delay and of the estimated date on which
the review is expected to be completed.
4. Procedures for Establishing Indentity of Individual Making a
Request:
a. Disclosure of personnel records requires that the individual
produce an identification card: employee identification, annuitant
identification, Medicare cards, or driver's license are examples. For
records disclosed by mail, FRA requires identifying information to
locate the record, i.e., employee identification number, name, date of
birth or social security number. A comparison of the signature of the
requester and those in the record is used to determine identity.
b. If an individual can provide no suitable documents for
identification, FRA requires a signed statement asserting identity and
stipulating that the individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretenses is punishable by a fine of up to $5,000 under 5 U.S.C.
552a(i)(3).
49 CFR 10.85 Pt. 10, App. G
49 CFR 10.85 Appendix G to Part 10 -- National Highway Traffic Safety
Administration
1. Introduction. This appendix, with respect to the National Highway
Traffic Safety Administration:
a. Describes the places and times at which records will be available
for inspection and copying;
b. Indicates the systems of records maintained in the National
Highway Traffic Safety Administration;
c. Identifies the officials having authority to deny requests for
access to records;
d. Describes the procedures to be followed in requesting correction
of a record; and
e. Describes identification requirements which may be in addition to
those delineated in 10.35 of these regulations.
2. Availability for Inspection and Copying. Records of the National
Highway Traffic Safety Administration, hereafter referred to as NHTSA,
are located at NHTSA headquarters, Washington, DC, and at regional
office locations, both described below. Records created, collected,
maintained and used in various demonstration and research projects as
contract requirements of NHTSA are located at various points in the
several States and the Commonwealth of Puerto Rico.
a. All NHTSA Headquarters offices are open from 7:45 A.M. to 4:15
P.M., each day except Saturdays, Sundays, and Federal legal holidays.
The main headquarters Office is located at 400 Seventh Street SW.,
Washington, DC 20590. The Office of Vehicle Safety Compliance,
Enforcement Programs; the National Driver Register, Traffic Safety
Programs, and the Office of Research and Development are located at the
Trans Point Building, 2100 2nd Street SW., Washington, DC 20590.
b. NHTSA Regional offices are located at the following addresses and
are open during the indicated hours each day, except for Saturdays,
Sundays, and Federal legal holidays:
(1) Region I (Connecticut, Maine, Massachusetts, New Hampshire, Rhode
Island, Vermont), 55 Broadway, Cambridge, Massachusetts 02142 (7:45
A.M.-4:15 P.M.).
(2) Region II (New Jersey, New York, Puerto Rico, Virgin Islands),
222 Mamaroneck Avenue (Room 204), White Plains, New York 10601 (7:45
A.M.-4:15 P.M.).
(3) Region III (Delaware, District of Columbia, Maryland,
Pennsylvania, Virginia, West Virginia), Airport Plaza Building, 6701
Elkridge Landing Road, Linthicum, Maryland 21090 (8:00 A.M.-4:30 P.M.).
(4) Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, Tennessee), Suite 501, 1720 Peachtree
Road, N.W., Atlanta, Georgia 30309 (7:45 A.M.-4:15 P.M.).
(5) Region V (Illinois, Indiana, Michigan, Minnesota, Ohio,
Wisconsin), Suite 214, Executive Plaza, 1010 Dixie Highway, Chicago
Heights, Illinois 60411 (8:00 A.M.-4:30 P.M.).
(6) Region VI (Arkanasas, Louisiana, New Mexico, Oklahoma, Texas),
819 Taylor Street, Room 11A26 Fort Worth, Texas 76102 (8:00 A.M.-4:30
P.M.).
(7) Region VII (Iowa, Kansas, Missouri, Nebraska), 6301 Rockhill
Road, Kansas City, Missouri 64111 (7:45 A.M.-4:15 P.M.).
(8) Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah,
Wyoming), 330 South Garrison Street, Lakewood, Colorado 80226 (7:45
A.M.-4:15 P.M.).
(9) Region IX (American Samoa, Arizona, California, Guam, Hawaii,
Nevada), Suite 610, Two Embarcadero Center, San Francisco, California
94111 (7:45 A.M.-4:15 P.M.).
(10) Region X (Alaska, Idaho, Oregon, Washington), 3140 Federal
Building, 915 Second Avenue, Seattle, Washington 98174 (7:45 A.M.-4:15
P.M.).
c. NHTSA demonstration and research project records may be created,
collected, maintained, and used for the purposes of NHTSA contract
requirements. These records are maintained at various points in the
several States and the Commonwealth of Puerto Rico. Since these project
contractors only act as agents for NHTSA, and to prevent unauthorized
dsclosure of information that may be subject to the provisions of the
Privacy Act of 1974, management of the systems has been retained by
appropriate officials of NHTSA. Access to the published systems may be
obtained by corresponding with the systems manager indicated for the
system of records found in the citations in paragarph 3 of this
appendix. Appropriate personal identification must be furnished in
accordance with paragraph 4. These officials should be notified of any
inaccuracy of the record and, also, are responsible for considering
requests for correction or alteration of the record.
3. Systems of Records. A list of NHTSA systems of records pertaining
to the Privacy Act indicating the geographic locations and the
responsible systems managers has been published in the Federal Register
and appears as follows: Vol. 42, No. 181, September 19, 1977,
beginning on page 47099.
4. Access to Records.
a. Individuals desiring to determine whether records pertaining to
them are contained in systems of records covered by this appendix or
desiring access to records covered by this appendix, or to obtain copies
of such records, shall make written requests providing appropriate
identification of the system and proof of their identity in the same
manner as former employees described in 4.c below. When an individual is
not capable of personally providing the required information, a second
party request may be honored if a duly attested authorization, power of
attorney, or appropriate court order is submitted with the request.
b. Decision to release or deny requested records is made by the
system manager, identified in the citations of paragraph 3 of this
appendix, within ten working days of the receipt of the request. A
person seeking review of a denial of the disclosure of a record may
appeal to the NHTSA Associate Administrator for Administration, 400
Seventh Street SW., Washington, DC 20590, preferably within 180 days of
the initial denial. Decision on the request for review is made in
writing within 30 working days from the receipt of the request for
reconsideration of disclosure. For additional details see sections
10.45 and 10.51 of these rules.
c. Employees and former employees of NHTSA may obtain access to and
consideration of the amendment of their records by providing a current
Department of Transportation (DOT) identification card (Form
D-1600.1.9), a DOT retired employee identification card (Form D-1680.2),
Medicare card, attested signed request, or such other identification
that may prove the validity of their claims.
d. Since nearly all NHTSA systems of records are maintained on
electronic data processing equipment, it may require up to 48 hours to
obtain individual records due to computer scheduling requirements. It
is in the interest of the individual, therefore, to request information
in writing rather than in person.
5. Requests to Correct or Alter Records.
a. Individuals may request correction or alteration of records
pertaining to them by addressing such requests to the system managers or
the NHTSA Privacy Act Coordinator, the addresses of whom are contained
in the citation of paragraph 3 of this appendix.
b. Since the records of the National Driver Register merely contain
partial records of the State's motor vehicle records, they are
susceptible to correction or alteration only to the extent that such
records are at variance with the State records. Persons seeking to
correct their State motor vehicle records should address requests to
their respective States' motor vehicle licensing authorities.
c. The system manager, in accordance with 49 CFR 10.41, provides
written acknowledgment of the receipt of a request to amend a record to
the individual within ten working days. If the request can be reviewed,
processed, and the individual notified of compliance or denial of the
request within the ten working day period, no acknowledgment is
required.
d. When decision is made by the system manager to comply with an
individual's request to amend the person's record, the following steps
are taken within 30 working days from the date of acknowledgment of the
request:
(1) Advises the individual of the decision in writing;
(2) Corrects the record accordingly; and
(3) Advises all previous recipients of the record, if an accounting
of disclosure has been made, of the correction.
e. When decision is made, after initial review by the system manager
of a request to amend a personal record, to disagree with all or any
portion of the requested amendment, the following steps are taken within
30 working days from the date of acknowledgment of the request.
(1) Advises the individual of refusal and the reasons therefor; and
(2) Informs the individual of the procedures for appeal to the NHTSA
Administrator for further review.
f. If the individual disagrees with the initial determination of the
system manager, the individual may file a request for further review of
that determination. This request for review should be addressed to the
Chief Counsel, National Highway Traffic Safety Administration, 400
Seventh Street SW., Washington, DC 20590.
g. If after review the Administrator agrees to the amendment of the
record, the procedures of subparagraph 5.d of this appendix are
followed. If amendment of the record is refused as requested by the
individual, the individual is advised:
(1) Of the refusal and reasons therefore, and the names and titles of
positions of each person responsible for the determination;
(2) Of the individual's right to file, together with the appropriate
procedures, a concise statement of the reasons for disagreeing with the
decision of the Administrator;
(3) Of the fact that the statement which is filed by the requester is
made available to prior recipients and anyone to whom the record is
subsequently disclosed; and
(4) Of the individual's right to seek judicial review of the
administrator's refusal to amend a record.
h. The final determination to refuse an individual's request for
amendment of a record is concluded within 30 working days after the
receipt of the appeal to the Administrator. If a fair and equitable
review cannot be completed by the stipulated time, the Administrator
informs the individual in writing of the reasons for delay and provides
an estimated date on which completion of the review is expected.
6. Personal Identification Requirements. The NHTSA does not demand
any personal identification beyond that specified by 10.35 of this
part.
49 CFR 10.85 Pt. 10, App. H
49 CFR 10.85 Appendix H to Part 10 -- Urban Mass Transportation
Administration
1. Introduction. This appendix, with respect to the Urban Mass
Transportation Administration (UMTA):
a. Describes the places and times at which records are available for
inspection and copying;
b. Indicates the systems of records maintained in the Urban Mass
Transportation Administration;
c. Identifies the officials having authority to deny requests for
access for records;
d. Describes the procedures to be followed in requesting correction
of a record; and
e. Describes identification requirements which may be in addition to
those delineated in paragraph 1035 of these regulations.
2. Availability for Inspection and Copying. In accordance with title
49, part 10, subpart A, Section 10.1, dealing with the maintenance of an
access to records pertaining to individuals under the Privacy Act of
1974 (Pub. L. 93-579), the following places and times at which
individual's records are available for inspection and copying, and the
titles of the officials who are reponsible system managers are
submitted.
a. Regional Offices as follows:
(1) Region I, Urban Mass Transportation Administration, Cambridge, MA
02142;
(2) Region II, Urban Mass Transportation Administration, New York, NY
10007;
(3) Region III, Urban Mass Transportation Administration,
Philadelphia, PA 19106;
(4) Region IV, Urban Mass Transportation Administration, Atlanta, GA
30309;
(5) Region V, Urban Mass Transportation Administration, Chicago, IL
60606;
(6) Region VI, Urban Mass Transportation Administration, Ft. Worth,
TX 76102;
(7) Region VII, Urban Mass Transportation Administration, Kansas
City, MO 64131;
(8) Region VIII, Urban Mass Transportation Administration, Denver CO
80202;
(9) Region IX, Urban Mass Transportation Administration, San
Francisco, CA 94111; and
(10) Region X, Urban Mass Transportation Administration, Seattle, WA
98174.
b. Hours: 8:30 A.M. to 5 P.M., local time.
c. System of Records: Regional Personnel Convenience Files at each
location.
d. System Managers: Regional Directors or Chiefs are System Managers
e. Headquarters: Urban Mass Transportation Administration,
Washington Headquarters, Washington, D.C. 20590; Hours: 8:30 A.M. to 5
P.M.
3. Systems of Records.
a. Confidential Statement of Employment and Financial Interest --
DOT/UMTA, Chief Counsel, Office of the Chief Counsel;
b. Occupational Safety and Health Reporting System, Director of
Personnel Division;
c. Litigation and Claims File -- Chief Counsel, Office of Chief
Counsel;
d. Grant Applicants List, Director, Grant Management Division;
e. Contract Information System, Director, Procurement Division;
f. Unsolicited Research and Development Grants, Director, Grant
Management Division;
g. Complaints of Discrimination, Director, Office of Civil Rights;
h. Employee Travel Vouchers, Chief, Accounting Branch;
i. Accounts Receivable, Chief, Accounting Branch;
j. Equal Employment Opportunity, Minority/Female Statistical
Reporting System, Director, Office of Civil Rights;
k. Minority Recruitment File, Director, Office of Civil Rights;
l. UMTA Sponsored Reports -- Authors File, Director, Office of
Transit Management;
m. Blood Donors File, Director, Administrative Services Division;
n. Approved Grants, Director, Administrative Services Division;
o. Closed-Out Grants, Director, Administrative Services Division;
and
p. Docket DOT/UMTA, Chief Counsel, Office of Chief Counsel.
4. Access to Records. Each individual desiring to determine whether
a record pertaining to him or her is contained in a system of records or
to obtain a copy of such a record, shall make request in writing to the
official specified in paragraph 1 of this appendix. Each request shall
specify the name of the requesting individual and the system of records
in which the subject record is located or thought to be located.
5. Requests to Correct or Alter Records.
a. The Administration allows individuals to request amendment of
their personal records to the extent that such amendment does not
violate existing statutes, regulations, or administrative procedures.
Requests to amend personal records of active employees should be
addressed to the responsible system manager specified in paragraph 1.
b. The system manager provides a written acknowledment of the receipt
of a request to amend a record to the individual within ten days.
However, if the request can be reviewed and processed and the individual
notified of compliance or denial within the ten-day working period, no
separate acknowledgment is required.
c. If UMTA agrees with an individual's request to amend the person's
record, the following steps are taken:
(1) Advises the individual in writing;
(2) Corrects the record accordingly; and
(3) Advises all previous recipients of the record which was corrected
of the correction and its substance.
d. If UMTA, after an initial review by the system manager of a
request to amend a personal record, disagrees with all or any portion of
it, it:
(1) Advises the individual of refusal and the reasons for it; and
(2) Informs the individual of procedures to request a further review.
e. If an individual disagrees with the initial determination, the
individual may file a request for a further review of that
determination. This request for a review should be addressed to:
Privacy Act Officer, UAD-60, 400 Seventh Street SW., Washington, D.C.
20590.
f. If after this review UMTA refuses to amend the record as the
individual requested, UMTA advises the individual:
(1) Of refusal and the reasons for it;
(2) Of the individual's right to file a concise statement of the
reasons for disagreeing with the decision;
(3) The procedures for filing the statement of disagreement;
(4) That the statement which is filed is made available to anyone to
whom the record is subsequently disclosed; and
(5) Of the individual's right to seek judicial review of the
Administration's refusal to amend a record.
g. The final determination on the individual's request is concluded
within 30 working days unless the UMTA Administrator determines that a
fair and equitable review cannot be completed in that period. If
additional time is required, the individual is informed in writing of
reasons for the delay and of the estimated date on which the review is
expected to be completed.
h. For personnel-related records final Civil Service Commission
determination may apply within 30 working days following the procedures
explained above.
6. Personal Identification Requirements.
a. Disclosure of personal records requires that the individual
produce an identification card; employee identification, annuitant
identification, Medicare card, and driver's license are examples. For
records disclosed by mail, UMTA requires identifying information to
locate the record, i.e., employee identification number, name, date of
birth, or social security number. A comparison of the signature of the
requester and those in the record is used to determine identity.
b. If an individual can provide no suitable documents for
identification, UMTA requires a signed statement asserting identity and
stipulating that the individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretenses is punishable by a fine of up to $5,000 under citation 3(i)3
of the Privacy Act.
49 CFR 10.85 Pt. 10, App. I
49 CFR 10.85 Appendix I to Part 10 -- Saint Lawrence Seaway Development
Corporation
1. Introduction. This appendix, with respect to the Saint Lawrence
Seaway Development Corporation:
a. Describes the places and times at which records are available for
inspection and copying;
b. Indicates the systems of records maintained;
c. Identifies the officials having authority to deny requests for
access to records;
d. Describes the procedures to be followed in requesting correction
of a record; and
e. Describes identification requirements which may be in addition to
those delineated in 10.35 of these regulations.
2. Availability for Inspection and Copying.
a. Place and time for records inspection and copying: Saint Lawrence
Seaway Development Corporation, Administration Building, Andrews Street,
Massena, New York 13662; Massena Office: 9:00 a.m.-4:00 p.m.
b. Systems of records located at each facility: Administration
Building: Claimants under Federal Tort Claims Act, Data Automation
Program Records, Employees' Compensation Records, Emergency Operating
Records (Vital Records).
c. Official having authority to deny requests for disclosure of
records under this part:
Resident Manager, Saint Lawrence Seaway Development Corporation,
Administration Building, Andrews Street, Massena, New York 13662.
3. Systems of Records: A complete listing of the systems of records
maintained by the Saint Lawrence Seaway Development Corporation has been
published in the Federal Register as follows: September 19, 1977, pages
47138-47140.
4. Access to Records: Each individual desiring to determine whether
a record pertaining to him or her is contained in a system of records or
to obtain a copy of such record, shall make request in writing to the
address provided in section 2 of this appendix. Each request shall
specify the name of the requesting individual and the system of records
in which the subject record is located or thought to be located.
5. Requests to Correct or Alter a Record:
a. Any person who desires to have his or her own record corrected
shall submit a written request.
b. Only the individual to whom the record pertains may make the
written request and it shall be signed by that person.
c. Request should state the reasons that the record should be
corrected and that the request is made pursuant to the Privacy Act;
alternatively the requester may mark ''Privacy Act Amendment Request''
on the envelope in which the request is submitted.
d. Requests for correction of records shall be submitted to the
Personnel Officer, Saint Lawrence Seaway Development Corporation,
Administration Building, Andrews Street, Massena, New York 13662.
6. Personal Identification Requirements: Refer to 10.35 for normal
requirements. In those cases involving mail requests for sensitive
records, i.e. -- medical records, the requester's signature shall be
notarized.
49 CFR 10.85 Pt. 10, App. J
49 CFR 10.85 Appendix J to Part 10 -- Research and Special Programs
Administration
The Research and Special Programs Administration (RSPA) will operate
under the general rules of part 10 (49 CFR part 10) until specific
procedures are deemed necessary for the RSPA.
49 CFR 10.85 PART 11 -- PROTECTION OF HUMAN SUBJECTS
Sec.
11.101 To what does this policy apply?
11.102 Definitions.
11.103 Assuring compliance with this policy -- research conducted or
supported by any Federal Department or Agency.
11.104 -- 11.106 (Reserved)
11.107 IRB Membership.
11.108 IRB functions and operations.
11.109 IRB review of research.
11.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
11.111 Criteria for IRB approval of research.
11.112 Review by institution.
11.113 Suspension or termination of IRB approval of research.
11.114 Cooperative research.
11.115 IRB records.
11.116 General requirements for informed consent.
11.117 Documentation of informed consent.
11.118 Applications and proposals lacking definite plans for
involvement of human subjects.
11.119 Research undertaken without the intention of involving human
subjects.
11.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department or Agency.
11.121 (Reserved)
11.122 Use of Federal funds.
11.123 Early termination of research support: Evaluation of
applications and proposals.
11.124 Conditions.
Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).
Source: 56 FR 28012, 28023, June 18, 1991, unless otherwise noted.
49 CFR 11.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by
federal civilian employees or military personnel, except that each
department or agency head may adopt such procedural modifications as may
be appropriate from an administrative standpoint. It also includes
research conducted, supported, or otherwise subject to regulation by the
federal government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in 11.102(e), must
comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in
11.102(e) must be reviewed and approved, in compliance with 11.101,
11.102, and 11.107 through 11.117 of this policy, by an institutional
review board (IRB) that operates in accordance with the pertinent
requirements of this policy.
(b) Unless otherwise required by department or agency heads, research
activities in which the only involvement of human subjects will be in
one or more of the following categories are exempt from this policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison among
instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and (ii) any disclosure of the human subjects' responses
outside the research could reasonably place the subjects at risk of
criminal or civil liability or be damaging to the subjects' financial
standing, employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or (ii) federal statute(s) require(s)
without exception that the confidentiality of the personally
identifiable information will be maintained throughout the research and
thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs; (ii) procedures for
obtaining benefits or services under those programs; (iii) possible
changes in or alternatives to those programs or procedures; or (iv)
possible changes in methods or levels of payment for benefits or
services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies, (i) if wholesome foods without additives are consumed or (ii)
if a food is consumed that contains a food ingredient at or below the
level and for a use found to be safe, or agricultural chemical or
environmental contaminant at or below the level found to be safe, by the
Food and Drug Administration or approved by the Environmental Protection
Agency or the Food Safety and Inspection Service of the U.S. Department
of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations which
may otherwise be applicable and which provide additional protections to
human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
(An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.) In these circumstances, if a
department or agency head determines that the procedures prescribed by
the institution afford protections that are at least equivalent to those
provided in this policy, the department or agency head may approve the
substitution of the foreign procedures in lieu of the procedural
requirements provided in this policy. Except when otherwise required by
statute, Executive Order, or the department or agency head, notices of
these actions as they occur will be published in the Federal Register or
will be otherwise published as provided in department or agency
procedures.
(i) Unless otherwise required by law, department or agency heads may
waive the applicability of some or all of the provisions of this policy
to specific research activities or classes of research activities
otherwise covered by this policy. Except when otherwise required by
statute or Executive Order, the department or agency head shall forward
advance notices of these actions to the Office for Protection from
Research Risks, Department of Health and Human Services (HHS), and shall
also publish them in the Federal Register or in such other manner as
provided in department or agency procedures. /1/
(56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991)
/1/ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR 46.101(b) do not apply to research involving
prisoners, fetuses, pregnant women, or human in vitro fertilization,
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research
involving survey or interview procedures or observation of public
behavior, does not apply to research with children, subpart D, except
for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
49 CFR 11.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or judicial
or other body authorized under applicable law to consent on behalf of a
prospective subject to the subject's participation in the procedure(s)
involved in the research.
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for
other purposes. For example, some demonstration and service programs
may include research activities.
(e) Research subject to regulation, and similar terms are intended to
encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. ''Private information'' includes information
about behavior that occurs in a context in which an individual can
reasonably expect that no observation or recording is taking place, and
information which has been provided for specific purposes by an
individual and which the individual can reasonably expect will not be
made public (for example, a medical record). Private information must
be individually identifiable (i.e., the identity of the subject is or
may readily be ascertained by the investigator or associated with the
information) in order for obtaining the information to constitute
research involving human subjects.
(g) IRB means an institutional review board established in accord
with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the research
has been reviewed and may be conducted at an institution within the
constraints set forth by the IRB and by other institutional and federal
requirements.
(i) Minimal risk means that the probability and magnitude of harm or
discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution
to the supporting department or agency, in accordance with the
requirements of this policy, that a research project or activity
involving human subjects has been reviewed and approved by an IRB in
accordance with an approved assurance.
49 CFR 11.103 Assuring compliance with this policy -- research
conducted or supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Protection from Research Risks, HHS, and approved for
federalwide use by that office. When the existence of an HHS-approved
assurance is accepted in lieu of requiring submission of an assurance,
reports (except certification) required by this policy to be made to
department and agency heads shall also be made to the Office for
Protection from Research Risks, HHS.
(b) Departments and agencies will conduct or support research covered
by this policy only if the institution has an assurance approved as
provided in this section, and only if the institution has certified to
the department or agency head that the research has been reviewed and
approved by an IRB provided for in the assurance, and will be subject to
continuing review by the IRB. Assurances applicable to federally
supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the
discharge of its responsibilities for protecting the rights and welfare
of human subjects of research conducted at or sponsored by the
institution, regardless of whether the research is subject to federal
regulation. This may include an appropriate existing code, declaration,
or statement of ethical principles, or a statement formulated by the
institution itself. This requirement does not preempt provisions of
this policy applicable to department- or agency-supported or regulated
research and need not be applicable to any research exempted or waived
under 11.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any
employment or other relationship between each member and the
institution; for example: full-time employee, part-time employee,
member of governing panel or board, stockholder, paid or unpaid
consultant. Changes in IRB membership shall be reported to the
department or agency head, unless in accord with 11.103(a) of this
policy, the existence of an HHS-approved assurance is accepted. In this
case, change in IRB membership shall be reported to the Office for
Protection from Research Risks, HHS.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or agency head may limit the
period during which any particular approved assurance or class of
approved assurances shall remain effective or otherwise condition or
restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
11.101 (b) or (i). An institution with an approved assurance shall
certify that each application or proposal for research covered by the
assurance and by 11.103 of this Policy has been reviewed and approved
by the IRB. Such certification must be submitted with the application
or proposal or by such later date as may be prescribed by the department
or agency to which the application or proposal is submitted. Under no
condition shall research covered by 11.103 of the Policy be supported
prior to receipt of the certification that the research has been
reviewed and approved by the IRB. Institutions without an approved
assurance covering the research shall certify within 30 days after
receipt of a request for such a certification from the department or
agency, that the application or proposal has been approved by the IRB.
If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under control number
9999-0020)
(56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991)
11.104 -- 11.106 (Reserved)
49 CFR 11.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review of research
activities commonly conducted by the institution. The IRB shall be
sufficiently qualified through the experience and expertise of its
members, and the diversity of the members, including consideration of
race, gender, and cultural backgrounds and sensitivity to such issues as
community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no IRB
consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary concerns
are in scientific areas and at least one member whose primary concerns
are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with competence
in special areas to assist in the review of issues which require
expertise beyond or in addition to that available on the IRB. These
individuals may not vote with the IRB.
49 CFR 11.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in
11.103(b)(4) and, to the extent required by, 11.103(b)(5).
(b) Except when an expedited review procedure is used (see 11.110),
review proposed research at convened meetings at which a majority of the
members of the IRB are present, including at least one member whose
primary concerns are in nonscientific areas. In order for the research
to be approved, it shall receive the approval of a majority of those
members present at the meeting.
49 CFR 11.109 IRB Review of Research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with 11.116. The IRB may require
that information, in addition to that specifically mentioned in 11.116,
be given to the subjects when in the IRB's judgment the information
would meaningfully add to the protection of the rights and welfare of
subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with 11.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it
shall include in its written notification a statement of the reasons for
its decision and give the investigator an opportunity to respond in
person or in writing.
(e) An IRB shall conduct continuing review of research covered by
this policy at intervals appropriate to the degree of risk, but not less
than once per year, and shall have authority to observe or have a third
party observe the consent process and the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
49 CFR 11.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
(a) The Secretary, HHS, has established, and published as a Notice in
the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list
will be amended, as appropriate after consultation with other
departments and agencies, through periodic republication by the
Secretary, HHS, in the Federal Register. A copy of the list is
available from the Office for Protection from Research Risks, National
Institutes of Health, HHS, Bethesda, Maryland 20892.
(b) An IRB may use the expedited review procedure to review either or
both of the following:
(1) Some or all of the research appearing on the list and found by
the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period
(of one year or less) for which approval is authorized.
Under an expedited review procedure, the review may be carried out by
the IRB chairperson or by one or more experienced reviewers designated
by the chairperson from among members of the IRB. In reviewing the
research, the reviewers may exercise all of the authorities of the IRB
except that the reviewers may not disapprove the research. A research
activity may be disapproved only after review in accordance with the
non-expedited procedure set forth in 11.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
49 CFR 11.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB shall
determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized: (i) By using procedures which
are consistent with sound research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appropriate, by using
procedures already being performed on the subjects for diagnostic or
treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by 11.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by 11.117.
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.
49 CFR 11.112 Review by institution.
Research covered by this policy that has been approved by an IRB may
be subject to further appropriate review and approval or disapproval by
officials of the institution. However, those officials may not approve
the research if it has not been approved by an IRB.
49 CFR 11.113 Suspension or termination of IRB approval of research.
An IRB shall have authority to suspend or terminate approval of
research that is not being conducted in accordance with the IRB's
requirements or that has been associated with unexpected serious harm to
subjects. Any suspension or termination of approval shall include a
statement of the reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institutional officials, and
the department or agency head.
(Approved by the Office of Management and Budget under control number
9999-0020)
49 CFR 11.114 Cooperative research.
Cooperative research projects are those projects covered by this
policy which involve more than one institution. In the conduct of
cooperative research projects, each institution is responsible for
safeguarding the rights and welfare of human subjects and for complying
with this policy. With the approval of the department or agency head,
an institution participating in a cooperative project may enter into a
joint review arrangement, rely upon the review of another qualified IRB,
or make similar arrangements for avoiding duplication of effort.
49 CFR 11.115 IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and
maintain adequate documentation of IRB activities, including the
following:
(1) Copies of all research proposals reviewed, scientific
evaluations, if any, that accompany the proposals, approved sample
consent documents, progress reports submitted by investigators, and
reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to
show attendance at the meetings; actions taken by the IRB; the vote on
these actions including the number of members voting for, against, and
abstaining; the basis for requiring changes in or disapproving
research; and a written summary of the discussion of controverted
issues and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the
investigators.
(5) A list of IRB members in the same detail as described is
11.103(b)(3).
(6) Written procedures for the IRB in the same detail as described in
11.103(b)(4) and 11.103(b)(5).
(7) Statements of significant new findings provided to subjects, as
required by 11.116(b)(5).
(b) The records required by this policy shall be retained for at
least 3 years, and records relating to research which is conducted shall
be retained for at least 3 years after completion of the research. All
records shall be accessible for inspection and copying by authorized
representatives of the department or agency at reasonable times and in a
reasonable manner.
(Approved by the Office of Management and Budget under control number
9999-0020)
49 CFR 11.116 General requirements for informed consent.
Except as provided elsewhere in this policy, no investigator may
involve a human being as a subject in research covered by this policy
unless the investigator has obtained the legally effective informed
consent of the subject or the subject's legally authorized
representative. An investigator shall seek such consent only under
circumstances that provide the prospective subject or the representative
sufficient opportunity to consider whether or not to participate and
that minimize the possibility of coercion or undue influence. The
information that is given to the subject or the representative shall be
in language understandable to the subject or the representative. No
informed consent, whether oral or written, may include any exculpatory
language through which the subject or the representative is made to
waive or appear to waive any of the subject's legal rights, or releases
or appears to release the investigator, the sponsor, the institution or
its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in
paragraph (c) or (d) of this section, in seeking informed consent the
following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of
the purposes of the research and the expected duration of the subject's
participation, a description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts
to the subject;
(3) A description of any benefits to the subject or to others which
may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of
treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which
confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as
to whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist
of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent
questions about the research and research subjects' rights, and whom to
contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to
participate will involve no penalty or loss of benefits to which the
subject is otherwise entitled, and the subject may discontinue
participation at any time without penalty or loss of benefits to which
the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
(1) A statement that the particular treatment or procedure may
involve risks to the subject (or to the embryo or fetus, if the subject
is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's participation
may be terminated by the investigator without regard to the subject's
consent;
(3) Any additional costs to the subject that may result from
participation in the research;
(4)The consequences of a subject's decision to withdraw from the
research and procedures for orderly termination of participation by the
subject;
(5) A statement that significant new findings developed during the
course of the research which may relate to the subject's willingness to
continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include, or
which alters, some or all of the elements of informed consent set forth
above, or waive the requirement to obtain informed consent provided the
IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or
subject to the approval of state or local government officials and is
designed to study, evaluate, or otherwise examine: (i) Public benefit
of service programs; (ii) procedures for obtaining benefits or services
under those programs; (iii) possible changes in or alternatives to
those programs or procedures; or (iv) possible changes in methods or
levels of payment for benefits or services under those programs; and
(2) The research could not practicably be carried out without the
waiver or alteration.
(d) An IRB may approve a consent procedure which does not include, or
which alters, some or all of the elements of informed consent set forth
in this section, or waive the requirements to obtain informed consent
provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights and
welfare of the subjects;
(3) The research could not practicably be carried out without the
waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with
additional pertinent information after participation.
(e) The informed consent requirements in this policy are not intended
to preempt any applicable federal, state, or local laws which require
additional information to be disclosed in order for informed consent to
be legally effective.
(f) Nothing in this policy is intended to limit the authority of a
physician to provide emergency medical care, to the extent the physician
is permitted to do so under applicable federal, state, or local law.
(Approved by the Office of Management and Budget under control number
9999-0020)
49 CFR 11.117 Documentation of informed consent.
(a) Except as provided in paragraph (c) of this section, informed
consent shall be documented by the use of a written consent form
approved by the IRB and signed by the subject or the subject's legally
authorized representative. A copy shall be given to the person signing
the form.
(b) Except as provided in paragraph (c) of this section, the consent
form may be either of the following:
(1) A written consent document that embodies the elements of informed
consent required by 11.116. This form may be read to the subject or the
subject's legally authorized representative, but in any event, the
investigator shall give either the subject or the representative
adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements
of informed consent required by 11.116 have been presented orally to
the subject or the subject's legally authorized representative. When
this method is used, there shall be a witness to the oral presentation.
Also, the IRB shall approve a written summary of what is to be said to
the subject or the representative. Only the short form itself is to be
signed by the subject or the representative. However, the witness shall
sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of
the summary shall be given to the subject or the representative, in
addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain a
signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would
be the consent document and the principal risk would be potential harm
resulting from a breach of confidentiality. Each subject will be asked
whether the subject wants documentation linking the subject with the
research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to
subjects and involves no procedures for which written consent is
normally required outside of the research context.
In cases in which the documentation requirement is waived, the IRB
may require the investigator to provide subjects with a written
statement regarding the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
49 CFR 11.118 Applications and proposals lacking definite plans for
involvement of human subjects.
Certain types of applications for grants, cooperative agreements, or
contracts are submitted to departments or agencies with the knowledge
that subjects may be involved within the period of support, but definite
plans would not normally be set forth in the application or proposal.
These include activities such as institutional type grants when
selection of specific projects is the institution's responsibility;
research training grants in which the activities involving subjects
remain to be selected; and projects in which human subjects'
involvement will depend upon completion of instruments, prior animal
studies, or purification of compounds. These applications need not be
reviewed by an IRB before an award may be made. However, except for
research exempted or waived under 11.101 (b) or (i), no human subjects
may be involved in any project supported by these awards until the
project has been reviewed and approved by the IRB, as provided in this
policy, and certification submitted, by the institution, to the
department or agency.
49 CFR 11.119 Research undertaken without the intention of involving
human subjects.
In the event research is undertaken without the intention of
involving human subjects, but it is later proposed to involve human
subjects in the research, the research shall first be reviewed and
approved by an IRB, as provided in this policy, a certification
submitted, by the institution, to the department or agency, and final
approval given to the proposed change by the department or agency.
49 CFR 11.120 Evaluation and disposition of applications and proposals
for research to be conducted or supported by a Federal Department or
Agency.
The department or agency head will evaluate all applications and
proposals involving human subjects submitted to the department or agency
through such officers and employees of the department or agency and such
experts and consultants as the department or agency head determines to
be appropriate. This evaluation will take into consideration the risks
to the subjects, the adequacy of protection against these risks, the
potential benefits of the research to the subjects and others, and the
importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head
may approve or disapprove the application or proposal, or enter into
negotiations to develop an approvable one.
11.121 (Reserved)
49 CFR 11.122 Use of Federal funds.
Federal funds administered by a department or agency may not be
expended for research involving human subjects unless the requirements
of this policy have been satisfied.
49 CFR 11.123 Early termination of research support: Evaluation of
applications and proposals.
(a) The department or agency head may require that department or
agency support for any project be terminated or suspended in the manner
prescribed in applicable program requirements, when the department or
agency head finds an institution has materially failed to comply with
the terms of this policy.
(b) In making decisions about supporting or approving applications or
proposals covered by this policy the department or agency head may take
into account, in addition to all other eligibility requirements and
program criteria, factors such as whether the applicant has been subject
to a termination or suspension under paragarph (a) of this section and
whether the applicant or the person or persons who would direct or has
have directed the scientific and technical aspects of an activity has
have, in the judgment of the department or agency head, materially
failed to discharge responsibility for the protection of the rights and
welfare of human subjects (whether or not the research was subject to
federal regulation).
49 CFR 11.124 Conditions.
With respect to any research project or any class of research
projects the department or agency head may impose additional conditions
prior to or at the time of approval when in the judgment of the
department or agency head additional conditions are necessary for the
protection of human subjects.
49 CFR 11.124 PART 17 -- INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF
TRANSPORTATION PROGRAMS AND ACTIVITIES
Sec.
17.1 What is the purpose of these regulations?
17.2 What definitions apply to these regulations?
17.3 What programs and activities of the Department are subject to
these regulations?
17.4 (Reserved)
17.5 What is the Secretary's obligation with respect to Federal
interagency coordination?
17.6 What procedures apply to the selection of programs and
activities under these regulations?
17.7 How does the Secretary communicate with state and local
officials concerning the Department's programs and activities?
17.8 How does the secretary provide states an opportunity to comment
on proposed Federal financial assistance and direct Federal development?
17.9 How does the Secretary receive and respond to comments?
17.10 How does the Secretary make efforts to accommodate
intergovernmental concerns?
17.11 What are the Secretary's obligations in interstate situations?
17.12 How may a state simplify, consolidate, or substitute federally
required state plans?
17.13 May the Secretary waive any provision of these regulations?
Authority: Executive Order 12372, July 14, 1982 (47 FR 30959), as
amended April 8, 1983 (48 FR 15887): sec. 401 of the Intergovernmental
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204 of the
Demonstration Cities and Metropolitan Development Act of 1966, as
amended (42 U.S.C. 3334).
Source: 48 FR 29272, June 24, 1983, unless otherwise noted
Editorial Note: For additional information, see related documents
published at 47 FR 57369, December 23, 1982, 48 FR 17101, April 21,
1983, and 48 FR 29096, June 24, 1983.
49 CFR 17.1 What is the purpose of these regulations?
(a) The regulation in this part implement Executive Order 12372,
''Intergovernmental Review of Federal Programs,'' issued July 14, 1982
and amended on April 8, 1983. These regulations also implement
applicable provisions of section 401 of the Intergovernmental
Cooperation Act of 1968 and section 204 of the Demonstration Cities and
Metropolitan Development Act of 1966.
(b) These regulations are intended to foster an intergovernmental
partnership and a strengthened Federalism by relying on state processes
and on state, areawide, regional and local coordination for review of
proposed federal financial assistance and direct federal development.
(c) These regulations are intended to aid the internal management of
the Department, and are not intended to create any right or benefit
enforceable at law by a party against the Department or its officers.
49 CFR 17.2 What definitions apply to these regulations?
Department means the U.S. Department of Transportation.
Order means Executive Order 12372, issued July 14, 1982, and amended
April 8, 1983 and titled ''Intergovernmental Review of Federal
Programs.''
Secretary means the Secretary of the U.S. Department of
Transportation or an official or employee of the Department acting for
the Secretary under a delegation of authority.
State means any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust
Territory of the Pacific Islands.
49 CFR 17.3 What programs and activities of the Department are subject
to these regulations?
The Secretary publishes in the Federal Register a list of the
Department's programs and activities that are subject to these
regulations and identifies which of these are subject to the
requirements of section 204 of the Demonstration Cities and Metropolitan
Development Act.
17.4 (Reserved)
49 CFR 17.5 What is the Secretary's obligation with respect to Federal
interagency coordination?
The Secretary, to the extent practicable, consults with and seeks
advice from all other substantially affected federal departments and
agencies in an effort to assure full coordination between such agencies
and the Department regarding programs and activities covered under these
regulations.
49 CFR 17.6 What procedures apply to the selection of programs and
activities under these regulations?
(a) A state may select any program or activity published in the
Federal Register in accordance with 17.3 of this part for
intergovernmental review under these regulations. Each state, before
selecting programs and activities shall consult with local elected
officials.
(b) Each state that adopts a process shall notify the Secretary of
the Department's programs and activities selected for that process.
(c) A state may notify the Secretary of changes in its selections at
any time. For each change, the state shall submit to the Secretary an
assurance that the state has consulted with elected local elected
officials regarding the change. The Department may establish deadlines
by which states are required to inform the Secretary of changes in their
program selections.
(d) The Secretary uses a state's process as soon as feasible,
depending on individual programs, and activities, after the Secretary is
notified of its selections.
49 CFR 17.7 How does the Secretary communicate with state and local
officials concerning the Department's programs and activities?
(a) For those programs and activities covered by a state process
under 17.6, the Secretary, to the extent permitted by law:
(1) Uses the state process to determine views of state and local
elected officials; and,
(2) Communicates with state and local elected officials, through the
state process, as early in a program planning cycle as is reasonably
feasible to explain specific plans and actions.
(b) The Secretary provides notice to directly affected state,
areawide, regional, and local entities in a state of proposed Federal
financial assistance or direct Federal development if:
(1) The state has not adopted a process under the Order; or
(2) The assistance or development involves a program or activity not
selected for the state process.
This notice may be made by publication in the Federal Register or
other appropriate means, which the Department in its discretion deems
appropriate.
49 CFR 17.8 How does the Secretary provide states an opportunity to
comment on proposed Federal financial assistance and direct Federal
development?
(a) Except in unusual circumstances, the Secretary gives state
processes or state, areawide, regional and local officials and entities
at least:
(1) (Reserved)
(2) 60 days from the date established by the Secretary to comment on
proposed direct federal development or federal financial assistance.
(b) This section also applies to comments in cases in which the
review, coordination, and communication with the Department have been
delegated.
(c) Applicants for programs and activities subject to section 204 of
the Demonstration Cities and Metropolitan Act shall allow areawide
agencies a 60-day opportunity for review and comment.
49 CFR 17.9 How does the Secretary receive and respond to comments?
(a) The Secretary follows the procedures in 17.10 if:
(1) A state office or official is designated to act as a single point
of contact between a state process and all federal agencies, and
(2) That office or official transmits a state process recommendation
for a program selected under 17.6.
(b)(1) The single point of contact is not obligated to transmit
comments from state, areawide, regional or local officials and entities
where there is no state process recommendation.
(2) If a state process recommendation is transmitted by a single
point of contact, all comments from state, areawide, regional, and local
officials and entities that differ from it must also be transmitted.
(c) If a state has not established a process, or is unable to submit
a state process recommendation, state, areawide, regional and local
officials and entities may submit comments either to the applicant or to
the Department.
(d) If a program or activity is not selected for a state process,
state, areawide, regional and local offficials and entities may submit
comments either to the applicant or to the Department. In addition, if
a state process recommendation for a nonselected program or activity is
transmitted to the Department by the single point of contact, the
Secretary follows the procedures of 17.10 of this part.
(e) The Secretary considers comments which do not constitute a state
process recommendation submitted under these regulations and for which
the Secretary is not required to apply the procedures of 17.10 of this
part, when such comments are provided by a single point of contact, by
the applicant, or directly to the Department by a commenting party.
49 CFR 17.10 How does the Secretary make efforts to accommodate
intergovernmental concerns?
(a) If a state process provides a state process recommendation to the
Department through its single point of contact, the Secretary either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the state process; or
(3) Provides the single point of contact with a written explanation
of the decision, in such form as the Secretary in his or her discretion
deems appropriate. The Secretary may also supplement the written
explanation by providing the explanation to the single point of contact
by telephone, other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of this section, the
Secretary informs the single point of contact that:
(1) The Department will not implement its decision for at least ten
days after the single point of contact receives the explanation; or
(2) The Secretary has reviewed the decision and determined that,
because of unusual circumstances, the waiting period of at least ten
days is not feasible.
(c) For purposes of computing the waiting period under paragraph
(b)(1) of this section, a single point of contact is presumed to have
received written notification 5 days after the date of mailing of such
notification.
49 CFR 17.11 What are the Secretary's obligations in interstate
situations?
(a) The Secretary is responsible for:
(1) Identifying proposed federal financial assistance and direct
federal development that have an impact on interstate areas;
(2) Notifying appropriate officials and entities in states which have
adopted a process and which select the Department's program or activity.
(3) Making efforts to identify and notify the affected state,
areawide, regional, and local officials and entities in those states
that have not adopted a process under the Order or do not select the
Department's program or activity;
(4) Responding pursuant to 17.10 of this part if the Secretary
receives a recommendation from a designated areawide agency transmitted
by a single point of contact, in cases in which the review,
coordination, and communication with the Department have been delegated.
(b) The Secretary uses the procedures in 17.10 if a state process
provides a state process recommendation to the Department through a
single point of contact.
49 CFR 17.12 How may a state simplify, consolidate, or substitute
federally required state plans?
(a) As used in this section:
(1) Simplify means that a state may develop its own format, choose
its own submission date, and select the planning period for a state
plan.
(2) Consolidate means that a state may meet statutory and regulatory
requirements by combining two or more plans into one document and that
the state can select the format, submission date, and planning period
for the consolidated plan.
(3) Substitute means that a state may use a plan or other document
that it has developed for its own purposes to meet Federal requirements.
(b) If not inconsistent with law, a state may decide to try to
simplify, consolidate, or substitute federally required state plans
without prior approval by the Secretary.
(c) The Secretary reviews each state plan that a state has
simplified, consolidated, or substituted and accepts the plan only if
its contents meet federal requirements.
49 CFR 17.13 May the Secretary waive any provision of these
regulations?
In an emergency, the Secretary may waive any provision of these
regulations.
49 CFR 17.13 PART 18 -- UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS
49 CFR 17.13 Subpart A -- General
Sec.
18.1 Purpose and scope of this part.
18.2 Scope of subpart.
18.3 Definitions.
18.4 Applicability.
18.5 Effect on other issuances.
18.6 Additions and exceptions.
49 CFR 17.13 Subpart B -- Pre-Award Requirements
18.10 Forms for applying for grants.
18.11 State plans.
18.12 Special grant or subgrant conditions for ''high risk''
grantees.
49 CFR 17.13 Subpart C -- Post-Award Requirements
18.20 Standards for financial management systems.
18.21 Payment.
18.22 Allowable costs.
18.23 Period of availability of funds.
18.24 Matching or cost sharing.
18.25 Program income.
18.26 Non-Federal audits.
18.30 Changes.
18.31 Real property.
18.32 Equipment.
18.33 Supplies.
18.34 Copyrights.
18.35 Subawards to debarred and suspended parties.
18.36 Procurement.
18.37 Subgrants.
18.40 Monitoring and reporting program performance.
Sec.
18.41 Financial reporting.
18.42 Retention and access requirements for records.
18.43 Enforcememt.
18.44 Termination for convenience.
49 CFR 17.13 Subpart D -- After-the-Grant Requirements
18.50 Closeout.
18.51 Later disallowances and adjustments.
18.52 Collection of amounts due.
49 CFR 17.13 Subpart E -- Entitlements (Reserved)
Authority: 49 U.S.C. 322(a).
Source: 53 FR 8086 and 8087, Mar. 11, 1988, unless otherwise noted.
Editorial Note: For additional information, see related documents
published at 49 FR 24958, June 18, 1984, 52 FR 20198, May 29, 1987, and
53 FR 8028, March 11, 1988.
49 CFR 17.13 Subpart A -- General
49 CFR 18.1 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.
49 CFR 18.2 Scope of subpart.
This subpart contains general rules pertaining to this part and
procedures for control of exceptions from this part.
49 CFR 18.3 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.
49 CFR 18.4 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 18.6, 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
18.4(a) (3) through (8) are subject to subpart E.
49 CFR 18.5 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 18.6.
49 CFR 18.6 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.
49 CFR 18.6 Subpart B -- Pre-Award Requirements
49 CFR 18.10 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.
(3) Forms and procedures for Federal Highway Administration (FHWA)
projects are contained in 23 CFR part 630, subpart B, 23 CFR part 420,
subpart A, and 49 CFR part 450.
(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.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar.
11, 1988)
49 CFR 18.11 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.
49 CFR 18.12 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.
49 CFR 18.12 Subpart C -- Post-Award Requirements
49 CFR 18.12 Financial Administration
49 CFR 18.20 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.
(d) Certain Urban Mass Transportation Administration (UMTA) grantees
shall comply with the requirements of section 15 of the Urban Mass
Transportation (UMT) Act of 1964, as amended, as implemented by 49 CFR
part 630, regarding a uniform system of accounts and records and a
uniform reporting system for certain grantees.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar.
11, 1988)
49 CFR 18.21 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 18.43(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.
(j) 23 U.S.C. 121 limits payments to States for highway construction
projects to the Federal share of the costs of construction incurred to
date, plus the Federal share of the value of stockpiled materials.
(k) Section 404 of the Surface Transportation Assistance Act of 1982
directs the Secretary to reimburse States for the Federal share of costs
incurred.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar.
11, 1988)
49 CFR 18.22 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.
(c) The overhead cost principles of OMB Circular A-87 shall not apply
to State highway agencies for FHWA funded grants.
(d) Sections 3(1) and 9(p) of the UMT Act of 1964, as amended,
authorize the Secretary to include in the net project cost eligible for
Federal assistance, the amount of interest earned and payable on bonds
issued by the State or local public body to the extent that the proceeds
of such bonds have actually been expended in carrying out such project
or portion thereof. Limitations are established in sections 3 and 9 of
the UMT Act of 1964, as amended.
(e) Section 9 of the UMT Act of 1964, as amended, authorizes grants
to finance the leasing of facilities and equipment for use in mass
transportation services provided leasing is more cost effective than
acquisition or construction.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar.
11, 1988)
49 CFR 18.23 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.
49 CFR 18.24 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 18.25, 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 18.25(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.
(8) 23 U.S.C. 121(a) permits reimbursement for actual construction
cost incurred by States for highway construction projects. Except for
private donations of right-of-way, contributions and donations shall not
be considered State costs, and shall not be allowable for matching
purposes for highway construction contracts. 23 U.S.C. 323 permits
private donations of right-of-way to be used for a State's matching
share, and establishes procedures for determining the fair market value
of such donated right-of-way.
(9) Section 4(a) of the UMT Act of 1964, as amended, provides that
the Federal grant for any project to be assisted under section 3 of the
UMT Act of 1964, as amended, shall be in an amount equal to 75 percent
of the net project costs. Net project cost is defined as that portion
of the cost of the project which cannot be reasonably financed from
revenues.
(10) Section 18(e) of the UMT Act of 1964, as amended, limits the
Federal share to 80 percent of the net cost of construction, as
determined by the Secretary of Transportation. The Federal share for
the payment of subsidies for operating expenses, as defined by the
Secretary, shall not exceed 50 percent of the net cost of such operating
expense projects.
(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.
(3) Section 5(g) of the Department of Transportation Act (49 U.S.C.
1654(g)) limits in-kind service contributions under the local Rail
Service Assistance Program to ''the cash equivalent of State salaries
for State public employees working in the State rail assistance program,
but not including overhead and general administrative costs.''
(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 18.22, 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 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar.
11, 1988)
49 CFR 18.25 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 18.34.)
(f) Property. Proceeds from the sale of real property or equipment
will be handled in accordance with the requirements of 18.31 and
18.32.
(g) Use of program income. Program income shall be deducted from
outlays which may be both Federal and non-Federal as described below,
unless the Federal agency regulations or the grant agreement specify
another alternative (or a combination of the alternatives). In
specifying alternatives, the Federal agency may distinguish between
income earned by the grantee and income earned by subgrantees and
between the sources, kinds, or amounts of income. When Federal agencies
authorize the alternatives in paragraphs (g) (2) and (3) of this
section, program income in excess of any limits stipulated shall also be
deducted from outlays.
(1) Deduction. Ordinarily program income shall be deducted from
total allowable costs to determine the net allowable costs. Program
income shall be used for current costs unless the Federal agency
authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds
committed to the project.
(2) Addition. When authorized, program income may be added to the
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be used for the purposes and under
the conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be
used to meet the cost sharing or matching requirement of the grant
agreement. The amount of the Federal grant award remains the same.
(4) Section 3(a)(1)(D) of the UMT Act of 1964, as amended, provides
that the Secretary shall establish requirements for the use of income
derived from appreciated land values for certain UMTA grants. Specific
requirements shall be contained in grant agreements.
(5) UMTA grantees may retain program income for allowable capital or
operating expenses.
(6) For grants awarded under section 9 of the UMT Act of 1964, as
amended, any revenues received from the sale of advertising and
concessions in excess of fiscal year 1985 levels shall be excluded from
program income.
(7) 23 U.S.C. 156 requires that States shall charge fair market value
for the sale, lease, or use of right-of-way airspace for
non-transportation purposes and that such income shall be used for
projects eligible under 23 U.S.C.
(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 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar.
11, 1988)
49 CFR 18.26 Non-Federal audits.
(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, 18.36 shall
be followed.
49 CFR 18.26 Changes, Property, and Subawards
49 CFR 18.30 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
18.22) 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
18.36 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 18.22) 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.
49 CFR 18.31 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.
(d) If the conditions in 23 U.S.C. 103(e) (5), (6), or (7), as
appropriate, are met and approval is given by the Secretary, States
shall not be required to repay the Highway Trust Fund for the cost of
right-of-way and other items when certain segments of the Interstate
System are withdrawn.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar.
11, 1988)
49 CFR 18.32 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 18.25(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 18.32(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.
49 CFR 18.33 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.
49 CFR 18.34 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.
49 CFR 18.35 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.''
49 CFR 18.36 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 18.36. 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 18.36(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 18.22). 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).
(j) 23 U.S.C. 112(a) directs the Secretary to require recipients of
highway construction grants to use bidding methods that are ''effective
in securing competition.'' Detailed construction contracting procedures
are contained in 23 CFR part 635, subpart A.
(k) Section 3(a)(2)(C) of the UMT Act of 1964, as amended, prohibits
the use of grant or loan funds to support procurements utilizing
exclusionary or discriminatory specifications.
(l) 46 U.S.C. 1241(b)(1) and 46 CFR part 381 impose cargo preference
requirements on the shipment of foreign made goods.
(m) Section 165 of the Surface Transportation Assistance Act of 1982,
49 U.S.C. 1601, section 337 of the Surface Transportation and Uniform
Relocation Assistance Act of 1987, and 49 CFR parts 660 and 661 impose
Buy America provisions on the procurement of foreign products and
materials.
(n) Section 105(f) of the Surface Transportation Assistance Act of
1982, section 106(c) of the Surface Transportation and Uniform
Relocation Assistance Act of 1987, and 49 CFR part 23 impose
requirements for the participation of disadvantaged business
enterprises.
(o) Section 308 of the Surface Transportation Assistance Act of 1982,
49 U.S.C. 1068(b)(2), authorizes the use of competitive negotiation for
the purchase of rolling stock as appropriate.
(p) 23 U.S.C. 112(b) provides for an exemption to competitive bidding
requirements for highway construction contracts in emergency situations.
(q) 23 U.S.C. 112 requires concurrence by the Secrectary before
highway construction contracts can be awarded, except for projects
authorized under the provisions of 23 U.S.C. 17l.
(r) 23 U.S.C. 112(e) requires standardized contract clauses
concerning site conditions, suspension or work, and material changes in
the scope of the work for highway construction contracts.
(s) 23 U.S.C. 140(b) authorizes the preferential employment of
Indians on Indian Reservation road projects and contracts.
(t) FHWA, UMTA, and Federal Aviation Administration (FAA) grantees
and subgrantees shall extend the use of qualifications-based (e.g.,
architectural and engineering services) contract selection procedures to
certain other related areas and shall award such contracts in the same
manner as Federal contracts for architectural and engineering services
are negotiated under Title IX of the Federal Property and Administrative
Services Act of 1949, or equivalent State (or airport sponsor for FAA)
qualifications-based requirements. For FHWA and UMTA programs, this
provision applies except to the extent that a State adopts or has
adopted by statute a formal procedure for the procurement of such
services.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar.
11, 1988)
49 CFR 18.37 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 18.42 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 18.10;
(2) Section 18.11;
(3) The letter-of-credit procedures specified in Treasury Regulations
at 31 CFR part 205, cited in 18.21; and
(4) Section 18.50.
49 CFR 18.37 Reports, Records, Retention, and Enforcement
49 CFR 18.40 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.
(1) Section 12(h) of the UMT Act of 1964, as amended, requires
pre-award testing of new buses models.
(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.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar.
11, 1988)
49 CFR 18.41 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 18.41(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
18.41(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 18.41(d), instead of this form.
(ii) The frequency for submitting reimbursement requests is treated
in 18.41(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 18.41(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 18.41(d).
(iii) The Federal agency may substitute the Financial Status Report
specified in 18.41(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
18.41(b)(2).
(f) Notwithstanding the provisions of paragraphs (a)(1) of this
section, recipients of FHWA and National Highway Traffic Safety
Administration (NHTSA) grants shall use FHWA, NHTSA or State financial
reports.
(53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar.
11, 1988)
49 CFR 18.42 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 18.36(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.
49 CFR 18.43 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 18.35).
49 CFR 18.44 Termination for convenience.
Except as provided in 18.43 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 18.43 or
paragraph (a) of this section.
49 CFR 18.44 Subpart D -- After-The-Grant Requirements
49 CFR 18.50 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 18.32(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.
49 CFR 18.51 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 18.42;
(d) Property management requirements in 18.31 and 18.32; and
(e) Audit requirements in 18.26.
49 CFR 18.52 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.
49 CFR 18.52 Subpart E -- Entitlements (Reserved)
49 CFR 18.52 PART 20 -- NEW RESTRICTIONS ON LOBBYING
49 CFR 18.52 Subpart A -- General
Sec.
20.100 Conditions on use of funds.
20.105 Definitions.
20.110 Certification and disclosure.
49 CFR 18.52 Subpart B-Activities by Own Employees
20.200 Agency and legislative liaison.
20.205 Professional and technical services.
20.210 Reporting.
49 CFR 18.52 Subpart C -- Activities by Other than Own Employees
20.300 Professional and technical services.
49 CFR 18.52 Subpart D -- Penalties and Enforcement
20.400 Penalties.
20.405 Penalty procedures.
20.410 Enforcement.
49 CFR 18.52 Subpart E -- Exemptions
20.500 Secretary of Defense.
49 CFR 18.52 Subpart F -- Agency Reports
20.600 Semi-annual compilation.
20.605 Inspector General report.
Appendix A to Part 20 -- Certification Regarding Lobbying
Appendix B to Part 20 -- Disclosure Form to Report Lobbying
Authority: Sec. 319, Public Law 101-121 (31 U.S.C. 1352); 49 U.S.C.
322(a).
Source: 55 FR 6737 and 6756, Feb. 26, 1990, unless otherwise noted.
Cross Reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
49 CFR 18.52 Subpart A -- General
49 CFR 20.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
49 CFR 20.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive
departments and agencies as well as independent regulatory commissions
and 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.
49 CFR 20.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if
required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if
required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States to
insure or guarantee a loan exceeding $150,000,
Unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
Shall file a certification, and a disclosure form, if required, to
the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of 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.
49 CFR 20.110 Subpart B -- Activities by Own Employees
49 CFR 20.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in 20.100 (a),
does not apply in the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or receiving a Federal
contract, grant, loan, or cooperative agreement if the payment is for
agency and legislative liaison activities not directly related to a
covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited
proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an agency
pursuant to the provisions of the Small Business Act, as amended by
Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
49 CFR 20.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 20.100 (a),
does not apply in the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or receiving a Federal
contract, grant, loan, or cooperative agreement or an extension,
continuation, renewal, amendment, or modification of a Federal contract,
grant, loan, or cooperative agreement if payment is for professional or
technical services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative 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.
49 CFR 20.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
49 CFR 20.210 Subpart C -- Activities by Other Than Own Employees
49 CFR 20.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 20.100 (a),
does not apply in the case of any reasonable payment to a person, other
than an officer or employee of a person requesting or receiving a
covered Federal action, if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in 20.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless 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.
49 CFR 20.300 Subpart D -- Penalties and Enforcement
49 CFR 20.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section shall
be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
49 CFR 20.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
49 CFR 20.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
49 CFR 20.410 Subpart E -- Exemptions
49 CFR 20.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
49 CFR 20.500 Subpart F -- Agency Reports
49 CFR 20.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or any
successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget
(OMB), are required to provide machine-readable compilations to the
Secretary of the Senate and the Clerk of the House of Representatives no
later than with the compilations due on May 31, 1991. OMB shall provide
detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
49 CFR 20.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector General,
the agency official comparable to an Inspector General shall prepare and
submit the annual report, or, if there is no such comparable official,
the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the 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.
49 CFR 20.605 Pt. 20 App. A
49 CFR 20.605 Appendix A to Part 20 -- 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.
49 CFR 20.605 Pt. 20, App. B
49 CFR 20.605 Appendix B to Part 20 -- Disclosure Form to Report
Lobbying
insert illustration 532
insert illustration 533
insert illustration 534
49 CFR 20.605 PART 21 -- NONDISCRIMINATION IN FEDERALLY-ASSISTED
PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION -- EFFECTUATION OF TITLE VI
OF THE CIVIL RIGHTS ACT OF 1964
Sec.
21.1 Purpose.
21.3 Application of this part.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and instructions.
21.23 Definitions.
Appendix A to Part 21 -- Activities to which This Part Applies
Appendix B to Part 21 -- Activities to which This Part Applies When A
Primary Objective of the Federal Financial Assistance Is To Provide
Employment
Appendix C to Part 21 -- Application of Part 21 to Certain Federal
Financial Assistance of the Department of Transportation
Authority: Sec. 602, 42 U.S.C. 2000d-1.
Source: 35 FR 10080, June 18, 1970, unless otherwise noted.
49 CFR 21.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to
the end that no person in the United States shall, on the grounds of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from the Department of Transportation.
49 CFR 21.3 Application of this part.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the federally assisted programs and activities listed in
appendix A to this part. It also applies to money paid, property
transferred, or other Federal financial assistance extended under any
such program after the effective date of this part pursuant to an
application approved before that effective date. This part does not
apply to:
(1) Any Federal financial assistance by way of insurance or guaranty
contracts;
(2) Money paid, property transferred, or other assistance extended
under any such program before the effective date of this part, except
where such assistance was subject to the title VI regulations of any
agency whose responsibilities are now exercised by this Department;
(3) Any assistance to any individual who is the ultimate beneficiary
under any such program; or
(4) Any employment practice, under any such program, of any employer,
employment agency, or labor organization, except to the extent described
in 21.5(c).
The fact that a program or activity is not listed in appendix A to
this part shall not mean, if title VI of the Act is otherwise
applicable, that such program is not covered. Other programs under
statutes now in force or hereinafter enacted may be added to appendix A
to this part.
(b) In any program receiving Federal financial assistance in the
form, or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under any such
property are included as part of the program receiving that assistance,
the nondiscrimination requirement of this part shall extend to any
facility located wholly or in part in that space.
49 CFR 21.5 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory actions prohibited:
(1) A recipient under any program to which this part applies may not,
directly or through contractual or other arrangements, on the grounds of
race, color, or national origin.
(i) Deny a person any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to a person
which is different, or is provided in a different manner, from that
provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, financial aid, or
other benefit under the program;
(v) Treat a person differently from others in determining whether he
satisfies any admission, enrollment, quota, eligibility, membership, or
other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program;
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program; or
(vii) Deny a person the opportunity to participate as a member of a
planning, advisory, or similar body which is an integral part of the
program.
(2) A recipient, in determining the types of services, financial aid,
or other benefits, or facilities which will be provided under any such
program, or the class of person to whom, or the situations in which,
such services, financial aid, other benefits, or facilities will be
provided under any such program, or the class of persons to be afforded
an opportunity to participate in any such program; may not, directly or
through contractual or other arrangements, utilize criteria or methods
of administration which have the effect of subjecting persons to
discrimination because of their race, color, or national origin, or have
the effect of defeating or substantially impairing accomplishment of the
objectives of the program with respect to individuals of a particular
race, color, or national origin.
(3) In determining the site or location of facilities, a recipient or
applicant may not make selections with the purpose or effect of
excluding persons from, denying them the benefits of, or subjecting them
to discrimination under any program to which this regulation applies, on
the grounds of race, color, or national origin; or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
include any service, financial aid, or other benefit provided in or
through a facility provided with the aid of Federal financial
assistance.
(5) The enumeration of specific forms of prohibited discrimination in
this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6) Examples demonstrating the application of the provisions of this
section to certain programs of the Department of Transportation are
contained in appendix C of this part.
(7) This part does not prohibit the consideration of race, color, or
national origin if the purpose and effect are to remove or overcome the
consequences of practices or impediments which have restricted the
availability of, or participation in, the program or activity receiving
Federal financial assistance, on the grounds of race, color, or national
origin. Where prior discriminatory practice or usage tends, on the
grounds of race, color, or national origin to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this part applies,
the applicant or recipient must take affirmative action to remove or
overcome the effects of the prior discriminatory practice or usage.
Even in the absence of prior discriminatory practice or usage, a
recipient in administering a program or activity to which this part
applies, is expected to take affirmative action to assure that no person
is excluded from participation in or denied the benefits of the program
or activity on the grounds of race, color, or national origin.
(c) Employment practices:
(1) Where a primary objective of a program of Federal financial
assistance to which this part applies is to provide employment, a
recipient or other party subject to this part shall not, directly or
through contractual or other arrangements, subject a person to
discrimination on the ground of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising, hiring, firing, upgrading, promotion, demotion,
transfer, layoff, termination, rates of pay or other forms of
compensation or benefits, selection for training or apprenticeship, use
of facilities, and treatment of employees). Such recipient shall take
affirmative action to insure that applicants are employed, and employees
are treated during employment, without regard to their race, color, or
national origin. The requirements applicable to construction employment
under any such program shall be those specified in or pursuant to Part
III of Executive Order 11246 or any Executive order which supersedes it.
(2) Federal financial assistance to programs under laws funded or
administered by the Department which have as a primary objective the
providing of employment include those set forth in appendix B to this
part.
(3) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the grounds of race,
color, or national origin in the employment practices of the recipient
or other persons subject to the regulation tends, on the grounds of
race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program to which this regulation applies, the
provisions of paragraph (c)(1) of this section shall apply to the
employment practices of the recipient or other persons subject to the
regulation, to the extent necessary to assure equality of opportunity
to, and nondiscriminatory treatment of, beneficiaries.
(d) A recipient may not make a selection of a site or location of a
facility if the purpose of that selection, or its effect when made, is
to exclude individuals from participation in, to deny them the benefits
of, or to subject them to discrimination under any program or activity
to which this rule applies, on the grounds of race, color, or national
origin; or if the purpose is to, or its effect when made will,
substantially impair the accomplishment of the objectives of this part.
(35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997,
July 5, 1973)
49 CFR 21.7 Assurances required.
(a) General. (1) Every application for Federal financial assistance
to carry out a program to which this part applies, except a program to
which paragraph (b) of this section applies, and every application for
Federal financial assistance to provide a facility shall, as a condition
to its approval and the extension of any Federal financial assistance
pursuant to the application, contain or be accompanied by, an assurance
that the program will be conducted or the facility operated in
compliance with all requirements imposed by or pursuant to this part.
Every program of Federal financial assistance shall require the
submission of such an assurance. In the case where the Federal
financial assistance is to provide or is in the form of personal
property, or real property or interest therein or structures thereon,
the assurance shall obligate the recipient, or, in the case of a
subsequent transfer, the transferee, for the period during which the
property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits, or for as long as the recipient retains
ownership or possession of the property, whichever is longer. In all
other cases the assurance shall obligate the recipient for the period
during which Federal financial assistance is extended to the program.
In the case where the assistance is sought for the construction of a
facility or part of a facility, the assurance shall in any event extend
to the entire facility and to facilities operated in connection
therewith. The Secretary shall specify the form of the foregoing
assurances for each program, and the extent to which like assurances
will be required of subgrantees, contractors and subcontractors,
transferees, successors in interest, and other participants in the
program. Any such assurance shall include provisions which give the
United States a right to seek its judicial enforcement.
(2) In the case where Federal financial assistance is provided in the
form of a transfer of real property, structures, or improvements
thereon, or interest therein, from the Federal Government, the
instrument effecting or recording the transfer shall contain a covenant
running with the land assuring nondiscrimination for the period during
which the real property is used for a purpose for which the Federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits. Where no transfer of
property or interest therein from the Federal Government is involved,
but property is acquired or improved under a program of Federal
financial assistance, the recipient shall agree to include such covenant
in any subsequent transfer of such property. When the property is
obtained from the Federal Government, such covenant may also include a
condition coupled with a right to be reserved by the Department to
revert title to the property in the event of a breach of the covenant
where, in the discretion of the Secretary, such a condition and right of
reverter is appropriate to the program under which the real property is
obtained and to the nature of the grant and the grantee. In such event
if a transferee of real property proposes to mortgage or otherwise
encumber the real property as security for financing construction of
new, or improvement of existing, facilities on such property for the
purposes for which the property was transferred, the Secretary may
agree, upon request of the transferee and if necessary to accomplish
such financing, and upon such conditions as he deems appropriate, to
subordinate such right of reversion to the lien of such mortgage or
other encumbrance.
(b) Continuing State programs. Every application by a State or a
State agency to carry out a program involving continuing Federal
financial assistance to which this part applies (including the programs
listed in appendix A to this part) shall as a condition to its approval
and the extension of any Federal financial assistance pursuant to the
application: (1) Contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part,
and (2) provide or be accompanied by provision for such methods of
administration for the program as are found by the Secretary to give
reasonable guarantee that the applicant and all recipients of Federal
financial assistance under such program will comply with all
requirements imposed by or pursuant to this part.
49 CFR 21.9 Compliance information.
(a) Cooperation and assistance. The Secretary shall to the fullest
extent practicable seek the cooperation of recipients in obtaining
compliance with this part and shall provide assistance and guidance to
recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the Secretary timely, complete, and accurate compliance
reports at such times, and in such form and containing such information,
as the Secretary may determine to be necessary to enable him to
ascertain whether the recipient has complied or is complying with this
part. In the case of any program under which a primary recipient
extends Federal financial assistance to any other recipient, such other
recipient shall also submit such compliance reports to the primary
recipient as may be necessary to enable the primary recipient to carry
out its obligations under this part. In general recipients should have
available for the Secretary racial and ethnic data showing the extent to
which members of minority groups are beneficiaries of programs receiving
Federal financial assistance.
(c) Access to sources of information. Each recipient shall permit
access by the Secretary during normal business hours to such of its
books, records, accounts, and other sources of information, and its
facilities as may be pertinent to ascertain compliance with this part.
Where any information required of a recipient is in the exclusive
possession of any other agency, institution, or person and this agency,
institution, or person fails or refuses to furnish this information, the
recipient shall so certify in its report and shall set forth what
efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the Secretary finds necessary to
apprise such persons of the protections against discrimination assured
them by the Act and this part.
(35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997,
July 5, 1973)
49 CFR 21.11 Conduct of investigations.
(a) Periodic compliance reviews. The Secretary shall from time to
time review the practices of recipients to determine whether they are
complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of persons to be subjected to discrimination prohibited by this
part may by himself or by a representative file with the Secretary a
written complaint. A complaint must be filed not later than 180 days
after the date of the alleged discrimination, unless the time for filing
is extended by the Secretary.
(c) Investigations. The Secretary will make a prompt investigation
whenever a compliance review, report, complaint, or any other
information indicates a possible failure to comply with this part. The
investigation will include, where appropriate, a review of the pertinent
practices and policies of the recipient, the circumstances under which
the possible noncompliance with this part occurred, and other factors
relevant to a determination as to whether the recipient has failed to
comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the Secretary will so inform the recipient and the matter will be
resolved by informal means whenever possible. If it has been determined
that the matter cannot be resolved by informal means, action will be
taken as provided for in 21.13.
(2) If an investigation does not warrant action pursuant to paragraph
(d)(1) of this section the Secretary will so inform the recipient and
the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall be kept confidential except to the extent
necessary to carry out the purposes of this part, including the conduct
of any investigation, hearing, or judicial proceeding arising
thereunder.
(35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997,
July 5, 1973)
49 CFR 21.13 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to: (1) A reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractual undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with 21.7. If an applicant fails or refuses to
furnish an assurance required under 21.7 or otherwise fails or refuses
to comply with a requirement imposed by or pursuant to that section,
Federal financial assistance may be refused in accordance with the
procedures of paragraph (c) of this section. The Department shall not
be required to provide assistance in such a case during the pendency of
the administrative proceedings under such paragraph. However, subject
to 21.21, the Department shall continue assistance during the pendency
of such proceedings where such assistance is due and payable pursuant to
an application approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until:
(1) The Secretary has advised the applicant or recipient of his
failure to comply and has determined that compliance cannot be secured
by voluntary means;
(2) There has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with a requirement imposed by or pursuant to this part;
(3) The action has been approved by the Secretary pursuant to
21.17(e); and
(4) The expiration of 30 days after the Secretary has filed with the
committee of the House and the committee of the Senate having
legislative jurisdiction over the program involved, a full written
report of the circumstances and the grounds for such action.
Any action to suspend or terminate or to refuse to grant or to
continue Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance
with title VI of the Act by any other means authorized by law shall be
taken by this Department until:
(1) The Secretary has determined that compliance cannot be secured by
voluntary means;
(2) The recipient or other person has been notified of its failure to
comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of such
notice to the recipient or other person. During this period of at least
10 days, additional efforts shall be made to persuade the recipient or
other person to comply with the regulation and to take such corrective
action as may be appropriate.
49 CFR 21.15 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 21.13(c), reasonable notice shall be given by registered
or certified mail, return receipt requested, to the affected applicant
or recipient. This notice shall advise the applicant or recipient of
the action proposed to be taken, the specific provision under which the
proposed action against it is to be taken, and the matters of fact or
law asserted as the basis for this action, and either: (1) Fix a date
not less than 20 days after the date of such notice within which the
applicant or recipient may request of the Secretary that the matter be
scheduled for hearing or (2) advise the applicant or recipient that the
matter in question has been set down for hearing at a stated place and
time. The time and place so fixed shall be reasonable and shall be
subject to change for cause. The complainant, if any, shall be advised
of the time and place of the hearing. An applicant or recipient may
waive a hearing and submit written information and argument for the
record. The failure of an applicant or recipient to request a hearing
under this paragraph or to appear at a hearing for which a date has been
set shall be deemed to be a waiver of the right to a hearing under
section 602 of the Act and 21.13(c) and consent to the making of a
decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, D.C., at a time fixed by the Secretary
unless he determines that the convenience of the applicant or recipient
or of the Department requires that another place be selected. Hearings
shall be held before the Secretary, or at his discretion, before a
hearing examiner appointed in accordance with section 3105 of title 5,
United States Code, or detailed under section 3344 of title 5, United
States Code.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
sections 554 through 557 of title 5, United States Code, and in
accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the applicant or recipient shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer
may exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under title VI of the Act, the
Secretary may, by agreement with such other departments or agencies,
where applicable, provide for the conduct of consolidated or joint
hearings, and for the application to such hearings of rules or
procedures not inconsistent with this part. Final decisions in such
cases, insofar as this regulation is concerned, shall be made in
accordance with 21.17.
49 CFR 21.17 Decisions and notices.
(a) Procedure on decisions by hearing examiner. If the hearing is
held by a hearing examiner, the hearing examiner shall either make an
initial decision, if so authorized, or certify the entire record
including his recommended findings and proposed decision to the
Secretary for a final decision, and a copy of such initial decision or
certification shall be mailed to the applicant or recipient. Where the
initial decision is made by the hearing examiner the applicant or
recipient may, within 30 days after the mailing of such notice of
initial decision, file with the Secretary his exceptions to the initial
decision, with his reasons therefor. In the absence of exceptions, the
Secretary may, on his own motion, within 45 days after the initial
decision, serve on the applicant or recipient a notice that he will
review the decision. Upon the filing of such exceptions or of notice of
review, the Secretary shall review the initial decision and issue his
own decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall,
subject to paragraph (e) of this section, constitute the final decision
of the Secretary.
(b) Decisions on record or review by the Secretary. Whenever a
record is certified to the Secretary for decision or he reviews the
decision of a hearing examiner pursuant to paragraph (a) of this
section, or whenever the Secretary conducts the hearing, the applicant
or recipient shall be given reasonable opportunity to file with him
briefs or other written statements of its contentions, and a written
copy of the final decision of the Secretary shall be sent to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to 21.15, a decision shall be made by the
Secretary on the record and a written copy of such decision shall be
sent to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or the
Secretary shall set forth his ruling on each finding, conclusion, or
exception presented, and shall identify the requirement or requirements
imposed by or pursuant to this part with which it is found that the
applicant or recipient has failed to comply.
(e) Approval by Secretary. Any final decision by an official of the
Department, other than the Secretary personally, which provides for the
suspension or termination of, or the refusal to grant or continue
Federal financial assistance, or the imposition of any other sanction
available under this part or the Act, shall promptly be transmitted to
the Secretary personally, who may approve such decision, may vacate it,
or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, under the program involved, and may
contain such terms, conditions, and other provisions as are consistent
with and will effectuate the purposes of the Act and this part,
including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such programs to the
applicant or recipient determined by such decision to be in default in
its performance of an assurance given by it pursuant to this part, or to
have otherwise failed to comply with this part, unless and until it
corrects its noncompliance and satisfies the Secretary that it will
fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this section may at any time request the
Secretary to restore fully its eligibility to receive Federal financial
assistance. Any such request shall be supported by information showing
that the applicant or recipient has met the requirements of paragraph
(g)(1) of this section. If the Secretary determines that those
requirements have been satisfied, he shall restore such eligibility.
(3) If the Secretary denies any such request, the applicant or
recipient may submit a request for a hearing in writing, specifying who
it believes such official to have been in error. It shall thereupon be
given an expeditious hearing, with a decision on the record in
accordance with rules or procedures issued by the Secretary. The
applicant or recipient will be restored to such eligibility if it proves
at such a hearing that it satisfied the requirements of paragraph (g)(1)
of this section.
While proceedings under this paragraph are pending, the sanctions
imposed by the order issued under paragraph (f) of this section shall
remain in effect.
49 CFR 21.19 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
49 CFR 21.21 Effect on other regulations, forms, and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions issued before the effective date of this part by any officer
of the Department which impose requirements designed to prohibit any
discrimination against individuals on the grounds of race, color, or
national origin under any program to which this part applies, and which
authorize the suspension or termination of or refusal to grant or to
continue Federal financial assistance to any applicant for a recipient
of such assistance under such program for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part may be considered to relieve any person of any obligation assumed
or imposed under any such superseded regulation, order, instruction, or
like direction before the effective date of this part. Nothing in this
part, however, supersedes any of the following (including future
amendments thereof): (1) Executive Order 11246 (3 CFR, 1965 Supp., p.
167) and regulations issued thereunder or (2) any other orders,
regulations, or instructions, insofar as such orders, regulations, or
instructions prohibit discrimination on the ground of race, color, or
national origin in any program or situation to which this part is
inapplicable, or prohibit discrimination on any other ground.
(b) Forms and instructions. The Secretary shall issue and promptly
make available to all interested persons forms and detailed instructions
and procedures for effectuating this part as applied to programs to
which this part applies and for which he is responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in 21.17), including
the achievement of effective coordination and maximum uniformity within
the Department and within the Executive Branch of the Government in the
application of title VI and this part to similar programs and in similar
situations. Any action taken, determination made or requirement imposed
by an official of another department or agency acting pursuant to an
assignment of responsibility under this paragraph shall have the same
effect as though such action had been taken by the Secretary of this
Department.
49 CFR 21.23 Definitions.
Unless the context requires otherwise, as used in this part:
(a) Applicant means a person who submits an application, request, or
plan required to be approved by the Secretary, or by a primary
recipient, as a condition to eligibility for Federal financial
assistance, and ''application'' means such an application, request, or
plan.
(b) Facility includes all or any part of structures, equipment, or
other real or personal property or interests therein, and the provision
of facilities includes the construction, expansion, renovation,
remodeling, alteration or acquisition of facilities.
(c) Federal financial assistance includes:
(1) Grants and loans of Federal funds;
(2) The grant or donation of Federal property and interests in
property;
(3) The detail of Federal personnel;
(4) The sale and lease of, and the permission to use (on other than a
casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient; and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(d) Primary recipient means any recipient that is authorized or
required to extend Federal financial assistance to another recipient for
the purpose of carrying out a program.
(e) Program includes any program, project, or activity for the
provision of services, financial aid, or other benefits to individuals
(including education or training, health, welfare, rehabilitation,
housing, or other services, whether provided through employees of the
recipient of Federal financial assistance or provided by others through
contracts or other arrangements with the recipient, and including work
opportunities), or for the provision of facilities for furnishing
services, financial aid or other benefits to individuals. The services,
financial aid, or other benefits provided under a program receiving
Federal financial assistance shall be deemed to include any services,
financial aid, or other benefits provided with the aid of Federal
financial assistance or with the aid of any non-Federal funds, property,
or other resources required to be expended or made available for the
program to meet matching requirements or other conditions which must be
met in order to receive the Federal financial assistance, and to include
any services, financial aid or other benefits provided in or through a
facility provided with the aid of Federal financial assistance or such
non-Federal resources.
(f) Recipient may mean any State, territory, possession, the District
of Columbia, or Puerto Rico, or any political subdivision thereof, or
instrumentality thereof, any public or private agency, institution, or
organization, or other entity, or any individual, in any State,
territory, possession, the District of Columbia, or Puerto Rico, to whom
Federal financial assistance is extended, directly or through another
recipient, for any program, including any successor, assignee, or
transferee thereof, but such term does not include any ultimate
beneficiary under any such program.
(g) Secretary means the Secretary of Transportation or, except in
21.17 (e), any person to whom he has delegated his authority in the
matter concerned.
49 CFR 21.23 Pt. 21, App. A
49 CFR 21.23 Appendix A to Part 21 -- Activities to which This Part
Applies
1. Use of grants made in connection with Federal-aid highway systems
(23 U.S.C. 101 et seq.).
2. Use of grants made in connection with the Highway Safety Act of
1966 (23 U.S.C. 401 et seq.).
3. Use of grants in connection with the National Traffic and Motor
Vehicle Safety Act of 1966 (15 U.S.C. 1391-1409, 1421-1425).
4. Lease of real property and the grant of permits, licenses,
easements and rights-of-way covering real property under control of the
Coast Guard (14 U.S.C. 93 (n) and (o)).
5. Utilization of Coast Guard personnel and facilities by any State,
territory, possession, or political subdivision thereof (14 U.S.C.
141(a)).
6. Use of Coast Guard personnel for duty in connection with maritime
instruction and training by the States, territories, and Puerto Rico (14
U.S.C. 148).
7. Use of obsolete and other Coast Guard material by sea scout
service of Boy Scouts of America, any incorporated unit of the Coast
Guard auxiliary, and public body or private organization not organized
for profit (14 U.S.C. 641(a)).
8. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
9. Use of grants for the support of basic scientific research by
nonprofit institutions of higher education and nonprofit organizations
whose primary purpose is conduct of scientific research (42 U.S.C.
1891).
10. Use of grants made in connection with the Federal-aid Airport
Program (secs. 1-15 and 17-20 of the Federal Airport Act, 49 U.S.C.
1101-1114, 1116-1120).
11. Use of U.S. land acquired for public airports under:
a. Section 16 of the Federal Airport Act, 49 U.S.C. 1115; and
b. Surplus Property Act (sec. 13(g) of the Surplus Property Act of
1944, 50 U.S.C. App. 1622(g), and sec. 3 of the Act of Oct. 1, 1949, 50
U.S.C. App. 1622b).
12. Activities carried out in connection with the Aviation Education
Program of the Federal Aviation Administration under sections 305, 311,
and 313(a) of the Federal Aviation Act of 1958, as amended (49 U.S.C.
1346, 1352, and 1354(a)).
13. Use of grants and loans made in connection with Urban Mass
Transportation Capital Facilities Grant and Loan Program -- Urban Mass
Transportation Act of 1964, as amended (49 U.S.C. 1602).
14. Use of grants made in connection with Urban Mass Transportation
Research and Demonstration Grant Program -- Urban Mass Transportation
Act of 1964, as amended (49 U.S.C. 1605).
15. Use of grants made in connection with Urban Mass Transportation
Technical Studies Grant Program -- Urban Mass Transportation Act of
1964, as amended (49 U.S.C. 1607a).
16. Use of grants made in connection with Urban Mass Transportation
Managerial Training Grant Program -- Urban Mass Transportation Act of
1964, as amended (49 U.S.C. 1607b).
17. Use of grants made in connection with Urban Mass Transportation
Grants for Research and Training Programs in Institutions of Higher
Learning -- Urban Mass Transportation Act of 1964, as amended (49 U.S.C.
1607c).
18. Use of grants made in connection with the High Speed Ground
Transportation Act, as amended (49 U.S.C. 631-642).
49 CFR 21.23 Pt. 21, App. B
49 CFR 21.23 Appendix B to Part 21 -- Activities to which This Part
Applies When A Primary Objective of the Federal Financial Assistance Is
to Provide Employment
1. Appalachia Regional Development Act of 1965 (40 U.S.C. App. 1 et
seq.).
49 CFR 21.23 Pt. 21, App. C
49 CFR 21.23 Appendix C to Part 21 -- Application of Part 21 to Certain
Federal Financial Assistance of the Department of Transportation
(a) Examples. The following examples, without being exhaustive,
illustrate the application of the nondiscrimination provisions of this
part on projects receiving Federal financial assistance under the
programs of certain Department of Transportation operating
administrations:
(1) Federal Aviation Administration. (i) The airport sponsor or any
of his lessees, concessionaires, or contractors may not differentiate
between members of the public because of race, color, or national origin
in furnishing, or admitting to, waiting rooms, passenger holding areas,
aircraft tiedown areas, restaurant facilities, restrooms, or facilities
operated under the compatible land use concept.
(ii) The airport sponsor and any of his lessees, concessionaires, or
contractors must offer to all members of the public the same degree and
type of service without regard to race, color, or national origin. This
rule applies to fixed base operators, restaurants, snack bars, gift
shops, ticket counters, baggage handlers, car rental agencies,
limousines and taxis franchised by the airport sponsor, insurance
underwriters, and other businesses catering to the public at the
airport.
(iii) An aircraft operator may not be required to park his aircraft
at a location that is less protected, or less accessible from the
terminal facilities, than locations offered to others, because of his
race, color, or national origin.
(iv) The pilot of an aircraft may not be required to help more
extensively in fueling operations, and may not be offered less
incidental service (such as windshield wiping), than other pilots,
because of his race, color, or national origin.
(v) No pilot or crewmember eligible for access to a pilot's lounge or
to unofficial communication facilities such as a UNICOM frequency may be
restricted in that access because of his race, color, or national
origin.
(vi) Access to facilities maintained at the airport by air carriers
or commercial operators for holders of first-class transportation
tickets or frequent users of the carrier's or operator's services may
not be restricted on the basis of race, color, or national origin.
(vii) Passengers and crewmembers seeking ground transportation from
the airport may not be assigned to different vehicles, or delayed or
embarrassed in assignment to vehicles, by the airport sponsor or his
lessees, concessionaires, or contractors, because of race, color, or
national origin.
(viii) Where there are two or more sites having equal potential to
serve the aeronautical needs of the area, the airport sponsor shall
select the site least likely to adversely affect existing communities.
Such site selection shall not be made on the basis of race, color, or
national origin.
(ix) Employment at obligated airports, including employment by
tenants and concessionaires shall be available to all regardless of
race, creed, color, sex, or national origin. The sponsor shall
coordinate his airport plan with his local transit authority and the
Urban Mass Transportation Administration to assure public
transportation, convenient to the disadvantaged areas of nearby
communities to enhance employment opportunities for the disadvantaged
and minority population.
(x) The sponsor shall assure that the minority business community in
his area is advised of the opportunities offered by airport concessions,
and that bids are solicited from such qualified minority firms, and
awards made without regard to race, color, or national origin.
(2) Federal Highway Administration. (i) The State, acting through
its highway department, may not discriminate in its selection and
retention of contractors, including without limitation, those whose
services are retained for, or incidental to, construction, planning,
research, highway safety, engineering, property management, and fee
contracts and other commitments with person for services and expenses
incidental to the acquisition of right-of-way.
(ii) The State may not discriminate against eligible persons in
making relocation payments and in providing relocation advisory
assistance where relocation is necessitated by highway right-of-way
acquisitions.
(iii) Federal-aid contractors may not discriminate in their selection
and retention of first-tier subcontractors, and first-tier
subcontractors may not discriminate in their selection and retention of
second-tier subcontractors, who participate in Federal-aid highway
construction, acquisition of right-of-way and related projects,
including those who supply materials and lease equipment.
(iv) The State may not discriminate against the traveling public and
business users of the federally assisted highway in their access to and
use of the facilities and services provided for public accommodations
(such as eating, sleeping, rest, recreation, and vehicle servicing)
constructed on, over or under the right-of-way of such highways.
(v) Neither the State, any other persons subject to this part, nor
its contractors and subcontractors may discriminate in their employment
practices in connection with highway construction projects or other
projects assisted by the Federal Highway Administration.
(vi) The State shall not locate or design a highway in such a manner
as to require, on the basis of race, color, or national origin, the
relocation of any persons.
(vii) The State shall not locate, design, or construct a highway in
such a manner as to deny reasonable access to, and use thereof, to any
persons on the basis of race, color, or national origin.
(3) Urban Mass Transportation Administration. (i) Any person who is,
or seeks to be, a patron of any public vehicle which is operated as a
part of, or in conjunction with, a project shall be given the same
access, seating, and other treatment with regard to the use of such
vehicle as other persons without regard to their race, color, or
national origin.
(ii) No person who is, or seeks to be, an employee of the project
sponsor or lessees, concessionaires, contractors, licensees, or any
organization furnishing public transportation service as a part of, or
in conjunction with, the project shall be treated less favorably than
any other employee or applicant with regard to hiring, dismissal,
advancement, wages, or any other conditions and benefits of employment,
on the basis of race, color, or national origin.
(iii) No person or group of persons shall be discriminated against
with regard to the routing, scheduling, or quality of service of
transportation service furnished as a part of the project on the basis
of race, color, or national origin. Frequency or service, age and
quality of vehicles assigned to routes, quality of stations serving
different routes, and location of routes may not be determined on the
basis of race, color, or national origin.
(iv) The location of projects requiring land acquisition and the
displacement of persons from their residences and businesses may not be
determined on the basis of race, color, or national origin.
(b) Obligations of the airport operator -- (1) Tenants, contractors,
and concessionaires. Each airport operator shall require each tenant,
contractor, and concessionaire who provides any activity, service, or
facility at the airport under lease, contract with, or franchise from
the airport, to covenant in a form specified by the Administrator,
Federal Aviation Administration, that he will comply with the
nondiscrimination requirements of this part.
(2) Notification of beneficiaries. The airport operator shall: (i)
Make a copy of this part available at his office for inspection during
normal working hours by any person asking for it, and (ii) conspicuously
display a sign, or signs, furnished by the FAA, in the main public area
or areas of the airport, stating that discrimination based on race,
color, or national origin is prohibited on the airport.
(3) Reports. Each airport owner subject to this part shall, within
15 days after he receives it, forward to the Area Manager of the FAA
Area in which the airport is located a copy of each written complaint
charging discrimination because of race, color, or national origin by
any person subject to this part, together with a statement describing
all actions taken to resolve the matter, and the results thereof. Each
airport operator shall submit to the area manager of the FAA area in
which the airport is located a report for the preceding year on the date
and in a form prescribed by the Federal Aviation Administrator.
(35 FR 10080, June 18, 1970, as amended by Amdt. 21-1, 38 FR 5875,
Mar. 5, 1973; Amdt. 21-3, 40 FR 14318, Mar. 31, 1975)
49 CFR 21.23 PART 23 -- PARTICIPATION BY MINORITY BUSINESS ENTERPRISE IN DEPARTMENT OF TRANSPORTATION PROGRAMS
49 CFR 21.23 Subpart A -- General
Sec.
23.1 Purpose.
23.3 Applicability.
23.5 Definitions.
23.7 Discrimination prohibited.
49 CFR 21.23 Subpart B -- (Reserved)
49 CFR 21.23 Subpart C -- Department of Transportation Financial
Assistance Programs
23.41 General.
23.43 General requirements for recipients.
23.45 Required MBE program components.
23.47 Counting MBE participation toward meeting MBE goals.
23.49 Maintenance of records and reports.
23.51 Certification of the eligibility of minority business
enterprises.
23.53 Eligibility standards.
23.55 Appeals of denials of certification as an MBE.
49 CFR 21.23 Subpart D -- Implementation of Section 105(f) of the
Surface Transportation Assistance Act of 1982
23.61 Purpose.
23.62 Definitions.
23.63 Applicability.
23.64 Submission of overall goals.
23.65 Content of justification.
23.66 Approval and disapproval of overall goals.
23.67 Special provision for transit vehicle manufacturers.
23.68 Compliance.
23.69 Challenge procedure.
Appendix A to Subpart D -- Section-by-Section Analysis
Appendix B to Subpart D -- Determinations of Business Size
Appendix C to Subpart D -- Guidance for Making Determinations of
Social and Economic Disadvantage
Appendix D to Subpart D -- Justification for Requests for Approval of
Overall Goals of Less than Ten Percent
49 CFR 21.23 Subpart E -- Compliance and Enforcement
23.73 Complaints.
23.75 Compliance reviews of recipients.
23.81 Conciliation procedures for financial assistance programs.
23.83 Enforcement proceedings for financial assistance programs.
23.85 Emergency enforcement procedure.
23.87 Suspension and debarment; referral to the Department of
Justice.
Schedule A -- Information for Determining Minority Business
Enterprise Eligibility
Schedule B -- Information for Determining Joint Venture Eligibility
Authority: Sec. 905 of the Regulatory Revitalization and Regulatory
Reform Act of 1978 (45 U.S.C. 803); sec. 30 of the Airport and Airway
Development Act of 1970, as amended; sec. 520 of the Airport and Airway
Improvement Act of 1982, as amended by the Airport and Airway Safety and
Capacity Expansion Act of 1987; sec. 19 of the Urban Mass
Transportation Act of 1964, as amended (49 U.S.C. 1615); sec. 106(c) of
the Surface Transportation and Uniform Relocation Assistance Act of 1987
(Pub. L. 100-17); sec. 105(f) of the Airport and Airway Safety and
Capacity Expansion Act of 1987 (Pub. L. 100-223); Title 23 of the U.S.
Code (relating to highways and traffic safety, particularly sec. 324
thereof); Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.); Executive Order 12265; Executive Order 12138.
Source: 45 FR 21184, Mar. 31, 1980, unless otherwise noted.
49 CFR 21.23 Subpart A -- General
49 CFR 23.1 Purpose.
(a) The purpose of this part is to carry out the Department of
Transportation's policy of supporting the fullest possible participation
of firms owned and controlled by minorities and women, (MBEs) in
Department of Transportation programs. This includes assisting MBEs
throughout the life of contracts in which they participate.
(b) This part implements in part section 905 of the Railroad
Revitalization and Regulatory Reform Act of 1978 (45 U.S.C. 803);
section 30 of the Airport and Airway Development Act of 1970, as amended
(49 U.S.C. 1730); section 19 of the Urban Mass Transportation Act of
1964, as amended (Pub. L. 95-599); Title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d et seq.); the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 471 et seq.); and Title 23 of the U.S.
Code (relating to highways and highway safety). This regulation
supersedes all DOT regulations issued previously under these
authorities, insofar as such regulations affect minority business
enterprise matters in DOT financial assistance programs.
49 CFR 23.2 Applicability.
This part applies to any DOT program through which funds are made
available to members of the public for accomplishing DOT's purposes.
Contracts and subcontracts which are to be performed entirely outside
the United States, its possessions, Puerto Rico, and the North Mariana
Islands, are exempted from this part.
49 CFR 23.5 Definitions.
Affirmative action means taking specific steps to eliminate
discrimination and its effects, to ensure nondiscriminatory results and
practices in the future, and to involve minority business enterprises
fully in contracts and programs funded by the Department.
Applicant means one who submits an application, request, or plan to
be approved by a Departmental official or by a primary recipient as a
condition to eligibility for DOT financial assistance; and application
means such an application, request, or plan.
Compliance means the condition existing when a recipient or
contractor has met and implemented the requirements of this part.
Contract means a mutually binding legal relationship or any
modification thereof obligating the seller to furnish supplies or
services, including construction, and the buyer to pay for them. For
purposes of this part, a lease is a contract.
Contractor means one who participates, through a contract or
subcontract, in any program covered by this part, and includes lessees.
Department or DOT means the Department of Transportation, including
its operating elements.
DOT-assisted contract means any contract or modification of a
contract between a recipient and a contractor which is paid for in whole
or in part with DOT financial assistance or any contract or modification
of a contract between a recipient and a lessee.
DOT financial assistance means financial aid provided by the
Department or the United States Railroad Association to a recipient, but
does not include a direct contract. The financial aid may be provided
directly in the form of actual money, or indirectly in the form of
guarantees authorized by statute as financial assistance services of
Federal personnel, title or other interest in real or personal property
transferred for less than fair market value, or any other arrangement
through which the recipient benefits financially, including licenses for
the construction or operation of a Deep Water Port.
Departmental element means the following parts of DOT:
(a) The Office of the Secretary (OST);
(b) The Federal Aviation Administration (FAA);
(c) The United States Coast Guard (USCG);
(d) The Federal Highway Administration (FHWA);
(e) The Federal Railroad Administration (FRA);
(f) The National Highway Traffic Safety Administration (NHTSA);
(g) The Urban Mass Transportation Administration (UMTA);
(h) The St. Lawrence Seaway Development Corporation (SLSDC); and
(i) The Research and Special Programs Administration (RSPA).
Joint venture means an association of two or more businesses to carry
out a single business enterprise for profit for which purpose they
combine their property, capital, efforts, skills, and knowledge.
Lessee means a business or person that leases, or is negotiating to
lease, property from a recipient or the Department on the recipient's or
Department's facility for the purpose of operating a
transportation-related activity or for the provision of goods or
services to the facility or to the public on the facility.
Minority means a person who is a citizen or lawful permanent resident
of the United States and who is:
(a) Black (a person having origins in any of the black racial groups
of Africa);
(b) Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish culture or origin, regardless of race);
(c) Portuguese (a person of Portuguese, Brazilian, or other
Portuguese culture or origin, regardless of race);
(d) Asian American (a person having origins in any of the original
peoples of the Far East. Southeast Asia, the Indian subcontinent, or the
Pacific Islands); or
(e) American Indian and Alaskan Native (a person having origins in
any of the original peoples of North America.)
(f) Members of other groups, or other individuals, found to be
economically and socially disadvantaged by the Small Business
Administration under section 8(a) of the Small Business Act, as amended
(15 U.S.C. 637(a)).
Minority business enterprise or MBE means a small business concern,
as defined pursunt to section 3 of the Small Business Act and
implementing regulations, which is owned and controlled by one or more
minorities or women. This definition applies only to financial
assistance programs. For the purposes of this part, owned and
controlled means a business:
(a) Which is at least 51 per centum owned by one or more minorities
or women or, in the case of a publicly owned business, at least 51 per
centum of the stock of which is owned by one or more minorities or
women; and
(b) Whose management and daily business operations are controlled by
one or more such individuals.
MBE coordinator means the official designated by the head of the
Department element to have overall responsibility for promotion of
minority business enterprise in his/her Departmental element.
Noncompliance means the condition existing when a recipient or
contractor has failed to implement the requirements of this part.
Primary recipient is a recipient who receives DOT financial
assistance and passes some or all of this assistance on to another
recipient.
Program means any undertaking by a recipient to use DOT financial
assistance, and includes the entire activity any part of which receives
DOT financial assistance.
Recipient means any entity, public or private, to whom DOT financial
assistance is extended, directly or through another recipient for any
program.
Secretary means the Secretary of transportation or any person whom
he/she has designated to act for him/her.
Set-aside means a technique which limits consideration of bids or
proposals to those submitted by MBEs.
(45 FR 21184, Mar. 31, 1980, as amended at 46 FR 60459, Dec. 10,
1981)
49 CFR 23.7 Discrimination prohibited.
No person shall be excluded from participation in, denied the
benefits of, or otherwise discriminated against in connection with the
award and performance of any contract covered by this part, on the
grounds of race, color, national origin, or sex.
49 CFR 23.7 Subpart B -- (Reserved)
49 CFR 23.7 Subpart C -- Department of Transportation Financial Assistance Programs
49 CFR 23.41 General.
(a) Responsibilities of applicants and recipients. (1) All
applicants and recipients shall follow the requirements of 23.43.
(2) Applicants and recipients in the following categories who will
let DOT-assisted contracts shall implement an MBE program containing the
elements set forth in 23.45 (e) through (i). This program shall be
submitted for approval to the DOT element concerned with the application
for financial assistance or project approval.
(i) Applicants for funds in excess of $250,000, exclusive of transit
vehicle purchases, under sections, 3, 5, 9, 9A, 17 and 18 of the Urban
Mass Transportation Act of 1964, as amended, and Federal-aid urban
systems.
(ii) Applicants for planning funds in excess of $100,000 under
section 6, 8, 9 or 9A of the Urban Mass Transportation Act of 1964, as
amended.
(iii) Applicants for Section 402 program funds of the National
Highway Traffic Safety Administration;
(iv) Applicants for funds in excess of $250,000 awarded by the
Federal Aviation Administration to general aviation airports;
(v) Applicants for funds in excess of $400,000 awarded by the Federal
Aviation Administration to non-hub airports; and
(vi) Applicants for planning funds in excess of $75,000 awarded by
the Federal Aviation Administration.
(vii) Licensees or applicants for a license under the Deepwater Port
Act of 1974 (33 U.S.C. 1501 et seq.).
(3) All applicants and recipients in the following categories who
will let DOT-assisted contracts shall implement an MBE program
containing all the elements set forth in 23.45. The program shall be
submitted for approval to the DOT element concerned with the application
for assistance or project approval.
(i) Applicants for Federal-aid highway program funds;
(ii) Applicants for funds in excess of $500,000, exclusive of transit
vehicle purchases, under sections 3, 5, 9, 9A, 17 and 18 of the Urban
Mass Transportation Act of 1964, as amended, and Federal-aid urban
systems;
(iii) Applicants for planning funds in excess of $200,000 under
section 6, 8, 9 and 9A of the Urban Mass Transportation Act of 1964, as
amended.
(iv) Applicants for funds in excess of $500,000 awarded by the
Federal Aviation Administration to large, medium and small hub airports;
and
(v) Applicants for financial assistance programs, including loan
guarantees, by the Federal Railroad Administration and the U.S. Railway
Association.
(b) Approval requirement. Applications and funding agreements are
signed and authorizations to proceed are approved only after the
applicant's MBE program has been approved by the Departmental element.
This requirement applies to applications, authorizations to proceed
requested by Federal-aid highway program recipients, and requests for
draw downs from the U.S. Railway Association submitted 90 days or more
following the effective date of this part.
(c) Effect of agreement. The MBE program prepared by the applicant
and the commitment made by the applicant to carry out the MBE program is
incorporated into and becomes part of this agreement and subsequent
financial assistance agreements. The agreement between the Department
and the recipient shall contractually bind the recipient to the
commitments made in the MBE program, as approved by the Department.
Failure to keep these commitments shall be deemed noncompliance with
this part. Once submitted and approved, an MBE program is applicable to
all DOT-assisted contracts solicited and let by the applicant after the
approval date of the MBE program regardless of the approval date of the
grant or project under which the contracts are let.
(d) Other MBE programs. (1) Applicants meeting the criteria set
forth in paragraphs (a)(2) and (3) of this section who have formulated
MBE programs under previous requirements of DOT or other agencies shall
revise these programs to conform to the requirements of this part prior
to the approval of their next application.
(2) An MBE program approved by one Departmental element is acceptable
to all Departmental elements. Applicants having an approved MBE program
are not required to resubmit the program or to produce a new program for
future applications, as long as all requirements for approval continue
to be met and implementation of the program is achieving compliance.
The Departmental element reassesses its approval of the MBE program of
continuing recipients at least annually.
(e) Transit vehicle manufacturers. Transit vehicle manufacturers who
wish to bid on UMTA-assisted transit vehicle procurement contracts shall
have a UMTA-approved MBE program. Each UMTA recipient shall require
these manufacturers to certify that they have such a program as a
condition for bidding on UMTA-assisted contracts.
(f) Exemptions. The head of the Departmental element may, under
appropriate circumstances, and with the concurrence of the Secretary,
grant deviations or exemptions from this subpart. A request for
deviation or exemption from this subpart shall be in writing and shall
include a showing as to how the particular situation is exceptional and
how the modified program complies substantially with this part. If the
applicant asserts that State or local law prohibits it from including a
particular provision in its program, the applicant shall provide copies
of all legal citations supporting the claim.
(45 FR 21184, Mar. 31, 1980, as amended at 48 FR 33444, July 21,
1983)
49 CFR 23.43 General requirements for recipients.
(a) Each recipient shall agree to abide by the statements in
paragraphs (a) (1) and (2) of this section. These statements shall be
included in the recipient's DOT financial assistance agreement and in
all subsequent agreements between the recipient and any subrecipient and
in all subsequent DOT-assisted contracts between recipients or
subrecipients and any contractor.
(1) ''Policy. It is the policy of the Department of Transportation
that minority business enterprises as defined in 49 CFR part 23 shall
have the maximum opportunity to participate in the performance of
contracts financed in whole or in part with Federal funds under this
agreement. Consequently the MBE requirements of 49 CFR part 23 apply to
this agreement.''
(2) ''MBE Obligation. (i) The recipient or its contractor agrees to
ensure that minority business enterprises as defined in 49 CFR part 23
have the maximum opportunity to participate in the performance of
contracts and subcontracts financed in whole or in part with Federal
funds provided under this agreement. In this regard all recipients or
contractors shall take all necessary and reasonable steps in accordance
with 49 CFR part 23 to ensure that minority business enterprises have
the maximum opportunity to compete for and perform contracts.
Recipients and their contractors shall not discriminate on the basis of
race, color, national origin, or sex in the award and performance of
DOT-assisted contracts.''
(b) Each DOT financial assistance agreement shall include the
following: ''If as a condition of assistance the recipient has
submitted and the Department has approved a minority business enterprise
affirmative action program which the recipient agrees to carry out, this
program is incorporated into this financial assistance agreement by
reference. This program shall be treated as a legal obligation and
failure to carry out its terms shall be treated as a violation of this
financial assistance agreement. Upon notification to the recipient of
its failure to carry out the approved program the Department shall
impose such sanctions as noted in 49 CFR part 23, subpart E, which
sanctions may include termination of the agreement or other measures
that may affect the ability of the recipient to obtain future DOT
financial assistance.''
(c) The recipient shall advise each subrecipient, contractor, or
subcontractor that failure to carry out the requirements set forth in
paragraph (a) of this section shall constitute a breach of contract and,
after the notification of the Department, may result in termination of
the agreement or contract by the recipient or such remedy as the
recipient deems appropriate.
(d) Recipients shall take action concerning lessees as follows:
(1) Recipients shall not exclude MBEs from participation in business
opportunities by entering into long-term, exclusive agreements with
non-MBEs for the operation of major transportation-related activities or
major activities for the provision of goods and services to the facility
or to the public on the facility.
(2) Recipients required to submit affirmative action programs under
23.41 (a)(2) or (a)(3) that have business opportunities for lessees
shall submit to the Department for approval with their programs overall
goals for the participation as lessees of firms owned and controlled by
minorities and firms owned and controlled by women. These goals shall
be for a specified period of time and shall be based on the factors
listed in 23.45(g)(5). Recipients shall review these goals at least
annually, and whenever the goals expire. The review shall analyze
projected versus actual MBE participation during the period covered by
the review and any changes in factual circumstances affecting the
selection of goals. Following each review, the recipient shall submit
new overall goals to the Department for approval. Recipients that fail
to meet their goals for MBE lessees shall demonstrate to the Department
in writing that they made reasonable efforts to meet the goals.
(3) Except as provided in this section, recipients are not required
to include lessees in their affirmative action programs. Lessees
themselves are not subject to the requirements of this part, except for
the obligation of 23.7 to avoid discrimination against MBEs.
49 CFR 23.45 Required MBE program components.
(a) A policy statement, expressing a commitment to use MBEs in all
aspects of contracting to the maximum extent feasible. (1) The
applicant's policymaking body (Board, Council, etc.) shall issue a
policy statement, signed by the chairperson, which expresses its
commitment to the program, outlines the various levels of responsibility
and states the objectives of the program. The policy statement shall be
circulated throughout the applicant's organization and to minority,
female, and nonminority community and business organizations.
(b) The designation of liaison officer, as well as such support staff
as may be necessary and proper to administer the program, and a
description of the authority, responsibility, and duties of the liaison
officer and support staff. (1) The Chief Executive Officer of the
recipient shall designate an MBE liaison officer and adequate staff to
administer the MBE program. The MBE liaison officer shall report
directly to the Chief Executive Officer.
(2) The MBE liaison officer shall be responsible for developing,
managing, and implementing the MBE program on a day-to-day basis; for
carrying out technical assistance activities for MBEs; and for
disseminating information on available business opportunities so that
MBEs are provided an equitable opportunity to bid on the applicant's
contracts.
(c) Procedures to ensure that MBEs have an equitable opportunity to
compete for contracts and subcontracts. The recipient shall develop and
use affirmative action techniques to facilitate MBE participation in
contracting activities. These techniques include:
(1) Arranging solicitations, time for the presentation of bids,
quantities, specifications, and delivery schedules so as to facilitate
the participation MBEs.
(2) Providing assistance to MBEs in overcoming barriers such as the
inability to obtain bonding, financing, or technical assistance.
(3) Carrying out information and communications programs on
contracting procedures and specific contracting opportunities in a
timely manner, with such programs being bilingual where appropriate.
(d) Opportunities for the use of banks owned and controlled by
minorities or women. (1) The recipient shall thoroughly investigate the
full extent of services offered by banks owned and controlled by
minorities or women in its community and make the greatest feasible use
of these banks.
(2) Recipients shall also encourage prime contractors to use the
services of banks owned and controlled by minorities or women.
(e) MBE directory. (1) The recipient shall have available a
directory or source list to facilitate identifying MBEs with
capabilities relevant to general contracting requirements and to
particular solicitations. The recipient shall make the directory
available to bidders and proposers in their efforts to meet the MBE
requirements. It shall specify which firms the Department, recipient,
or the Small Business Administration has determined to be eligible MBEs
in accordance with procedures set forth in this subpart. Recipients
subject to the disadvantaged business enterprise program requirements of
subpart D of this part shall compile and update their directories
annually. The directories shall include the addresses of listed firms.
(f) Procedures to ascertain the eligibility of MBEs and joint
ventures involving MBEs. (1) To ensure that its MBE program benefits
only firms owned and controlled by minorities or women, the recipient
shall certify the eligibility of MBEs and joint ventures involving MBEs
that are named by the competitors in accordance with this subpart.
Recipients may, at their own discretion, accept certifications made by
other DOT recipients.
(2) Recipients shall require their prime contractors to make good
faith efforts to replace an MBE subcontractor that is unable to perform
successfully with another MBE. The recipient shall approve all
substitutions of subcontractors before bid opening and during contract
performance, in order to ensure that the substitute firms are eligible
MBEs.
(3) Recipients covered by the disadvantaged business program
requirements of subpart D of this part shall, in determining whether a
firm is an eligible disadvantaged business enterprise, take at least the
following steps:
(i) Perform an on-site visit to the offices of the firm and to any
job sites on which the firm is working at the time of the eligibility
investigation;
(ii) Obtain the resumes or work histories of the principal owners of
the firm and personally interview these individuals;
(iii) Analyze the ownership of stock in the firm, if it is a
corporation;
(iv) Analyze the bonding and financial capacity of the firm;
(v) Determine the work history of the firm, including contracts it
has received and work it has completed;
(vi) Obtain or compile a list of equipment owned or available to the
firm and the licenses of the firm and its key personnel to perform the
work it seeks to do as part of the DBE program; and
(vii) Obtain a statement from the firm of the type of work it prefers
to perform as part of the DBE program.
(g) Percentage goals for the dollar value of work to be awarded to
MBEs. (1) Once the recipient has reviewed proposed contracting to
identify those contracting activities which have the greatest potential
for MBE participation, the recipient shall set goals that are practical
and related to the potential availability of MBEs in desired areas of
expertise.
(2) The applicant/recipient shall establish two types of MBE goals:
(i) Overall goals for its entire MBE program, for a specified period
of time (e.g. one year), or for a specific project, (e.g. the
construction of a facility); and
(ii) Contract goals on each specific prime contract with
subcontracting possibilities, which the bidder or proposer must meet or
exceed or demonstrate that it could not meet despite its best efforts.
(3)(i) Recipients shall submit their overall goals and a description
of the methodology used in establishing them with their MBE program.
When the overall goals expire, new overall goals shall be set and
submitted to the Department for approval. Contract goals need not be
submitted in the applicant's MBE program, but the program shall contain
a description of the methodology to be used in establishing them.
Contract goals may require approval by the Department prior to contract
solicitation.
(ii) At the time the recipient submits its overall goals to the
Department for approval, the recipient shall publish a notice announcing
these goals, informing the public that the goals and a description of
how they were selected are available for inspection during normal
business hours at the principal office of the recipient for 30 days
following the date of the notice, and informing the public that the
Department and the recipient will accept comments on the goals for 45
days from the date of the notice. The notice shall include addresses to
which comments may be sent, and shall be published in general
circulation media and available minority-focus media and trade
association publications, and shall state that the comments are for
informational purposes only.
(4) Recipients covered by the disadvantaged business enterprise
program requirements of subpart D of this part shall establish an
overall goal and contract goal for firms owned and controlled by
socially and economically disadvantaged individuals. Other recipients
shall establish separate overall and contract goals for firms owned and
controlled by minorities and firms owned and controlled by women,
respectively.
(5) The applicant shall consider the following factors in setting
overall goals:
(i) Overall goals shall be based on projection of the number and
types of contracts to be awarded by the applicant and a projection of
the number and types of MBEs likely to be available to compete for
contracts from the recipient over the period during which the goals will
be in effect.
(ii) Overall goals shall also be based on past results of the
applicant's/recipient's efforts to contract with MBEs and the reasons
for the high or low level of those results.
(6) The applicant/recipient shall review the overall goals at least
annually. The review process shall analyze projected versus actual MBE
participation during the previous year. The necessary revisions shall
be made based on the analysis and submitted to the Department for
approval.
(7) Goals shall be set for specific contracts based on the known
availability of qualified MBEs.
(8) Recipients and contractors shall, at a minimum, seek MBEs in the
same geographic area in which they seek contractors or subcontractors
generally for a given solicitation. If the recipient or contractor
cannot meet the goals using MBEs from this geographic area, the
recipient or contractor, as part of its efforts to meet the goal, shall
expand its search to a reasonable wider geographic area.
(h) A means to ensure that competitors make good faith efforts to
meet MBE contract goals. (1) For all contracts for which contract goals
have been established, the recipient shall, in the solicitation, inform
competitors that the apparent successful competitor will be required to
submit MBE participation information to the recipient and that the award
of the contract will be conditioned upon satisfaction of the
requirements established by the recipient pursuant to this subsection.
(i) The apparent successful competitor's submission shall include the
following information:
(A) The names and addresses of MBE firms that will participate in the
contract;
(B) A description of the work each named MBE firm will perform;
(C) The dollar amount of participation by each named MBE firm.
(ii) The recipient may select the time at which it requires MBE
information to be submitted. Provided, that the time of submission
shall be before the recipient commits itself to the performance of the
contract by the apparent successful competitor.
(2) If the MBE participation submitted in response to paragraph
(h)(1) of this section does not meet the MBE contract goals, the
apparent successful competitor shall satisfy the recipient that the
competitor has made good faith efforts to meet the goals.
(i) The recipient may prescribe other requirements of equal or
greater effectiveness in lieu of good faith efforts. Any recipient
choosing alternative requirements shall inform the DOT office concerned
by letter of the content of the requirements it has prescribed within 30
days of the effective date of this subsection. The recipient may put
these alternative requirements into effect immediately and prior DOT
approval of alternative requirements is not necessary.
(ii) If the Department determines that the alternative requirements
are not as or more effective than the good faith efforts provisions of
this subsection, the Department may require the recipient to use the
good faith efforts requirements of this subsection instead of the
requirements it has prescribed.
(3) Meeting MBE contract goals, making good faith efforts as provided
in paragraph (h)(2) of this section, or meeting requirements established
by recipients in lieu of good faith efforts, is a condition of receiving
a DOT-assisted contract for which contract goals have been established.
(i) (Reserved)
(j) A description of the methods by which the recipient will require
subrecipients, contractors, and subcontractors to comply with applicable
MBE requirements. (1) The recipient shall include in its MBE program a
description and the specific language of any preconditions to subgrants
or contracts pertaining to the use of MBEs, including subcontracting
programs, it awards with DOT funds in addition to those required by this
section. It shall specify on what size and/or type of contracts and
subgrants it includes such preconditions. The description shall contain
a summary of the ways the recipient provides help to its subrecipients,
contractors, and subcontractors in drafting and implementing their
programs for using MBEs. The description shall also include the means
by which the recipient enforces the requirements placed on
subrecipients, contractors and subcontractors.
(2) Any MBE subcontracting programs required by the recipient in
addition to those required by this section shall be submitted to the
recipient by the apparent successful bidder/proposer. The
bidders/proposers shall be advised in the solicitation that failure to
submit the additional MBE subcontracting program shall make the
bidder/proposer ineligible for award.
(k) Procedures by which the applicant/recipient will implement MBE
set-asides. Where not prohibited by state or local law and determined
by the recipient to be necessary to meet MBE goals, procedures to
implement MBE set-asides shall be established. MBE set-asides shall be
used only in cases where at least three MBEs with capabilities
consistent with contract requirements exist so as to permit competition.
To determine whether a competitor that has failed to meet MBE
contract goals may receive the contract, the recipient must decide
whether the efforts the competitor made to obtain MBE participation were
''good faith efforts'' to meet the goals. Efforts that are merely pro
forma are not good faith efforts to meet the goals. Efforts to obtain
MBE participation are not good faith efforts to meet the goals, even if
they are sincerely motivated, if, given all relevant circumstances, they
could not reasonably be expected to produce a level of MBE participation
sufficient to meet the goals. In order to award a contract to a
competitor that has failed to meet MBE contract goals, the recipient
must determine that the competitor's efforts were those that, given all
relevant circumstances, a competitor actively and aggressively seeking
to meet the goals would make.
To assist recipients in making the required judgment, the Department
has prepared a list of the kinds of efforts that contractors may make in
obtaining MBE participation. It is not intended to be a mandatory
checklist; the Department does not require recipients to insist that a
contractor do any one, or any particular combination, of the things on
the list. Nor is the list intended to be exclusive or exhaustive.
Other factors or types of efforts may be relevant in appropriate cases.
In determining whether a contractor has made good faith efforts, it will
usually be important for a recipient to look not only at the different
kinds of efforts that the contractor has made, but also the quantity and
intensity of these efforts.
The Department offers the following list of kinds of efforts that
recipients may consider:
(1) Whether the contractor attended any pre-solicitation or pre-bid
meetings that were scheduled by the recipient to inform MBEs of
contracting and subcontracting opportunities;
(2) Whether the contractor advertised in general circulation, trade
association, and minority-focus media concerning the subcontracting
opportunities;
(3) Whether the contractor provided written notice to a reasonable
number of specific MBEs that their interest in the contract was being
solicited, in sufficient time to allow the MBEs to participate
effectively;
(4) Whether the contractor followed up initial solicitations of
interest by contacting MBEs to determine with certainty whether the MBEs
were interested;
(5) Whether the contractor selected portions of the work to be
performed by MBEs in order to increase the likelihood of meeting the MBE
goals (including, where appropriate, breaking down contracts into
economically feasible units to facilitate MBE participation);
(6) Whether the contractor provided interested MBEs with adequate
information about the plans, specifications and requirements of the
contract;
(7) Whether the contractor negotiated in good faith with interested
MBEs, not rejecting MBEs as unqualified without sound reasons based on a
thorough investigation of their capabilities;
(8) Whether the contractor made efforts to assist interested MBEs in
obtaining bonding, lines of credit, or insurance required by the
recipient or contractor; and
(9) Whether the contractor effectively used the services of available
minority community organizations; minority contractors' groups; local,
state and Federal minority business assistance offices; and other
organizations that provide assistance in the recruitment and placement
of MBEs.
(Title VI of the Civil Rights Act of 1964; sec. 30 of the Airport
and Airway Development Act of 1970, as amended; sec. 905 of the
Railroad Revitalization and Regulatory Reform Act of 1976; sec. 19 of
the Urban Mass Transportation Act of 1964, as amended; 23 U.S.C. 324;
E.O. 11625; E.O. 12138)
(45 FR 21184, Mar. 31, 1980, as amended at 46 FR 23461, Apr. 27,
1981; 52 FR 39230, Oct. 21, 1987)
49 CFR 23.47 Counting MBE participation toward meeting MBE goals.
MBE participation shall be counted toward meeting MBE goals set in
accordance with this subpart as follows:
(a) Once a firm is determined to be an eligible MBE in accordance
with this subpart, the total dollar value of the contract awarded to the
MBE is counted toward the applicable MBE goals.
(b) The total dollar value of a contract to an MBE owned and
controlled by both minority males and non-minority females is counted
toward the goals for minorities and women, respectively, in proportion
to the percentage of ownership and control of each group in the
business. The total dollar value of a contract with an MBE owned and
controlled by minority women is counted toward either the minority goal
or the goal for women, but not to both. The contractor or recipient
employing the firm may choose the goal to which the contract value is
applied.
(c) A recipient or contractor may count toward its MBE goals a
portion of the total dollar value of a contract with a joint venture
eligible under the standards of this subpart equal to the percentage of
the ownership and controls of the MBE partner in the joint venture.
(d)(1) A recipient or contractor may count toward its MBE goals only
expenditures to MBEs that perform a commercially useful function in the
work of a contract. An MBE is considered to perform a commercially
useful function when it is responsible for execution of a distinct
element of the work of a contract and carrying out its responsibilities
by actually performing, managing, and supervising the work involved. To
determine whether an MBE is performing a commercially useful function,
the recipient or contractor shall evaluate the amount of work
subcontracted, industry practices, and other relevant factors.
(2) Consistent with normal industry practices, an MBE may enter into
subcontracts. If an MBE contractor subcontracts a significantly greater
portion of the work of the contract than would be expected on the basis
of normal industry practices, the MBE shall be presumed not to be
performing a commercially useful function. The MBE may present evidence
to rebut this presumption to the recipient. The recipient's decision on
the rebuttal of this presumption is subject to review by the Department.
(e)(1) A recipient or contractor may count toward its MBE, DBE or WBE
goals 60 percent of its expenditures for materials and supplies required
under a contract and obtained from an MBE, DBE or WBE regular dealer,
and 100 percent of such expenditures to an MBE, WBE, or DBE
manufacturer.
(2) For purposes of this section, a manufacturer is a firm that
operates or maintains a factory or establishment that produces on the
premises the materials or supplies obtained by the recipient or
contractor.
(3) For purposes of this section, a regular dealer is a firm that
owns, operates, or maintains a store, warehouse, or other establishment
in which the materials or supplies required for the performance of the
contract are bought, kept in stock, and regularly sold to the public in
the usual course of business. To be a regular dealer, the firm must
engage in, as its principal business, and in its own name, the purchase
and sale of the products in question. A regular dealer in such bulk
items as steel, cement, gravel, stone, and petroleum products need not
keep such products in stock, if it owns or operates distribution
equipment. Brokers and packagers shall not be regarded as manufacturers
or regular dealers within the meaning of this section.
(f) A recipient or contractor may count toward its MBE, DBE, or WBE
goals the following expenditures to MBE, DBE, or WBE firms that are not
manufacturers or regular dealers:
(1) The fees or commissions charged for providing a bona fide
service, such as professional, technical, consultant or managerial
services and assistance in the procurement of essential personnel,
facilities, equipment, materials or supplies required for performance of
the contract, provided that the fee or commission is determined by the
recipient to be reasonable and not excessive as compared with fees
customarily allowed for similar services.
(2) The fees charged for delivery of materials and supplies required
on a job site (but not the cost of the materials and supplies
themselves) when the hauler, trucker, or delivery service is not also
the manufacturer of or a regular dealer in the materials and supplies,
provided that the fee is determined by the recipient to be reasonable
and not excessive as compared with fees customarily allowed for similar
services.
(3) The fees or commissions charged for providing any bonds or
insurance specifically required for the performance of the contract,
provided that the fee or commission is determined by the recipient to be
reasonable and not excessive as compared with fees customarily allowed
for similar services.
(45 FR 21184, Mar. 31, 1980, as amended at 52 FR 39230, Oct. 21,
1987)
49 CFR 23.49 Maintenance of records and reports.
(a) In order to monitor the progress of its MBE program the
applicant/recipient shall develop a recordkeeping system which will
identify and assess MBE contract awards, prime contractors' progress in
achieving MBE subcontract goals, and other MBE affirmative action
efforts.
(b) Specifically, the applicant/recipient shall maintain records
showing:
(1) Procedures which have been adopted to comply with the
requirements of this part.
(2) Awards to MBEs. These awards shall be measured against projected
MBE awards and/or MBE goals. To assist in this effort, the applicant
shall obtain regular reports from prime contractors on their progress in
meeting contractual MBE obligations.
(3) Specific efforts to identify and award contracts to MBEs.
(c) Records shall be available upon the request of an authorized
officer or employee of the government.
(d)(1) The recipient shall submit reports conforming in frequency and
format to existing contract reporting requirements of the applicable
Departmental element. Where no such contract reporting requirements
exist, MBE reports shall be submitted quarterly.
(2) These reports shall include as a minimum:
(i) The number of contracts awarded to MBEs;
(ii) A description of the general categories of contracts awarded to
MBEs;
(iii) The dollar value of contracts awarded to MBEs;
(iv) The percentage of the dollar value of all contracts awarded
during this period which were awarded to MBEs; and
(v) An indication of whether and the extent of which the percentage
met or exceeded the goal specified in the application.
(3) The records and reports required by this section shall provide
information relating to firms owned and controlled by minorities
separately from information relating to firms owned and controlled by
women. If the records and reports include any section 8(a) contractors
that are not minorities or women, information concerning these
contractors shall also be recorded and reported separately.
49 CFR 23.51 Certification of the eligibility of minority business
enterprises.
(a) To ensure that this part benefits only MBEs which are owned and
controlled in both form and substance by one or more minorities or
women, DOT recipients shall use Schedules A and B (reproduced at the end
of this part) to certify firms who wish to participate as MBEs in DOT
under this part.
(b) Except as provided in paragraph (c) of this section, each
business, including the MBE partner in a joint venture, wishing to
participate as a MBE under this part in a DOT-assisted contract shall
complete and submit Schedue A. Each entity wishing to participate as a
joint venture MBE under this part in DOT-assisted contracts shall in
addition complete and submit Schedule B. The schedule(s) shall be
signed and notarized by the authorized representative of the business
entity. A business seeking certification as an MBE shall submit the
required schedules with its bid or proposal for transmission to the
contracting agency involved.
(c) Under the following circumstances, a business seeking to
participate as an MBE under this subpart need not submit schedule A or
B:
(1) If a DOT recipient has established a different certification
process that DOT has determined to be as or more effective than the
process provided for by this section. Where such a process exists,
potential MBE contractors shall submit the information required by the
recipient's process.
(2) If the potential MBE contractor states in writing that it has
submitted the same information to or has been certified by the DOT
recipient involved, any DOT element, or another Federal agency that uses
essentially the same definition and ownership and control criteria as
DOT. The potential MBE contractor shall obtain the information and
certification (if any) from the other agency and submit it to the
recipient or cause the other agency to submit it. The recipient may
rely upon such a certification. Where another agency has collected
information but not made a determination concerning eligibility, the DOT
recipient shall make its own determination based on the information it
has obtained from the other agency.
(3) If the potential MBE contractor has been determined by the Small
Business Administration to be owned and controlled by socially and
economically disadvantaged individuals under section 8(a) of the Small
Business Act, as amended.
49 CFR 23.53 Eligibility standards.
(a) The following standards shall be used by recipients in
determining whether a firm is owned and controlled by one or more
minorities or women is and shall therefore be eligible to be certified
as an MBE. Businesses aggrieved by the determination may appeal in
accordance with procedures set forth in 23.55.
(1) Bona fide minority group membership shall be established on the
basis of the individual's claim that he or she is a member of a minority
group and is so regarded by that particular minority community.
However, the recipient is not required to accept this claim if it
determines the claim to be invalid.
(2) An eligible minority business enterprise under this part shall be
an independent business. The ownership and control by minorities or
women shall be real, substantial, and continuing and shall go beyond the
pro forma ownership of the firm as reflected in its ownership documents.
The minority or women owners shall enjoy the customary incidents of
ownership and shall share in the risks and profits commensurate with
their ownership interests, as demonstrated by a examination of the
substance rather than form of arrangements. Recognition of the business
as a separate entity for tax or corporate purposes is not necessarily
sufficient for recognition as an MBE. In determining whether a
potential MBE is an independent business, DOT recipients shall consider
all relevant factors, including the date the business was established,
the adequacy of its resources for the work of the contract, and the
degree to which financial, equipment leasing, and other relationships
with nonminority firms vary from industry practice.
(3) The minority or women owners shall also possess the power to
direct or cause the direction of the management and policies of the firm
and to make the day-to-day as well as major decisions on matters of
management, policy, and operations. The firm shall not be subject to
any formal or informal restrictions which limit the customary discretion
of the minority or women owners. There shall be no restrictions
through, for example, bylaw provisions, partnership agreements, or
charter requirements for cumulative voting rights or otherwise that
prevent the minority or women owners, without the cooperation or vote of
any owner who is not a minority or woman, from making a business
decision of the firm.
(4) If the owners of the firm who are not minorities or women are
disproportionately responsible for the operation of the firm, then the
firm is not controlled by minorities or women and shall not be
considered an MBE within the meaning of this part. Where the actual
management of the firm is contracted out to individuals other than the
owner, those persons who have the ultimate power to hire and fire the
managers can, for the purposes of this part, be considered as
controlling the business.
(5) All securities which constitute ownership and/or control of a
corporation for purposes of establishing it as an MBE under this part
shall be held directly by minorities or women. No securities held in
trust, or by any guardian for a minor, shall be considered as held by
minority or women in determining the ownership or control of a
corporation.
(6) The contributions of capital or expertise by the minority or
women owners to acquire their interests in the firm shall be real and
substantial. Examples of insufficient contributions include a promise
to contribute capital, a note payable to the firm or its owners who are
not socially and economically disadvantaged, or the mere participation
as an employee, rather than as a manager.
(b) In addition to the above standards, DOT recipients shall give
special consideration to the following circumstances in determining
eligibility under this part.
(1) Newly formed firms and firms whose ownership and/or control has
changed since the date of the advertisement of the contract are closely
scrutinized to determine the reasons for the timing of the formation of
or change in the firm.
(2) A previous and/or continuing employer-employee relationship
between or among present owners is carefully reviewed to ensure that the
employee-owner has management responsibilities and capabilities
discussed in this section.
(3) Any relationship between an MBE and a business which is not an
MBE which has an interest in the MBE is carefully reviewed to determine
if the interest of the non-MBE conflicts with the ownership and control
requirements of this section.
(c) A joint venture is eligible under this part if the MBE partner of
the joint venture meets the standards for an eligible MBE set forth
above and the MBE partner is responsible for a clearly defined portion
of the work to be performed and shares in the ownership, control,
management responsibilities, risks, and profits of the joint venture.
(d) A joint venture is eligible to compete in an MBE set-aside under
this part if the MBE partner of the joint venture meets the standards of
an eligible MBE set forth above, and the MBE partner's share in the
ownership, control, and management responsibilities, risks, and profits
of the joint venture is at least 51 percent and the MBE partner is
responsible for a clearly defined portion of the work to be performed.
(e) A business wishing to be certified as an MBE or joint venture MBE
by a DOT recipient shall cooperate with the recipient in supplying
additional information which may be requested in order to make a
determination.
(f) Once certified, an MBE shall update its submission annually by
submitting a new Schedule A or certifying that the Schedule A on file is
still accurate. At any time there is a change in ownership or control
of the firm, the MBE shall submit a new schedule A.
(g) Except as provided in 23.55, the denial of a certification by
the Department or a recipient shall be final, for that contract and
other contracts being let by the recipient at the time of the denial of
certification. MBEs and joint ventures denied certification may correct
deficiencies in their ownership and control and apply for certification
only for future contracts.
(h) Recipients shall safeguard from disclosure to unauthorized
persons information that reasonably may be regarded as confidential
business information, consistent with Federal, state and local law.
49 CFR 23.55 Appeals of denials of certification as an MBE.
(a) Filing. Any firm which believes that it has been wrongly denied
certification as an MBE or joint venture under 23.51 and 23.53 by the
Department or a recipient of DOT financial assistance may file an appeal
in writing, signed and dated, with the Department. The appeal shall be
filed no later than 180 days after the date of denial of certification.
The Secretary may extend the time for filing or waive the time limit in
the interest of justice, specifying in writing the reasons for so doing.
Third parties who have reason to believe that another firm has been
wrongly denied or granted certification as an MBE or joint venture may
advise the Secretary. This information is not considered an appeal
pursuant to this section.
(b) Decision to investigate. The Secretary ensures that a prompt
investigation is made pursuant to prescribed DOT title VI investigation
procedures.
(c) Status of certification during the investigation. The Secretary
may at his/her discretion, deny the MBE or joint venture in question
eligibility to participate as an MBE DOT-assisted contracts let during
the pendancy of the investigation, after providing the MBE or joint
venture in question an opportunity to show cause by written statement to
the Secretary why this should not occur.
(d) Cooperation in investigation. All parties shall cooperate fully
with the investigation. Failure or refusal to furnish requested
information or other failure to cooperate is a violation of this part.
(e) Determinations. The Secretary makes one of the following
determinations and informs the MBE or joint venture in writing of the
reasons for the determination:
(1) The MBE or joint venture is certified; or
(2) The MBE or joint venture is not eligible to be certified and is
denied eligibility to participate as an MBE in any direct or
DOT-assisted contract until a new application for certification is
approved by the recipient.
49 CFR 23.55 Subpart D -- Implementation of Section 105(f) of the
Surface Transportation Assistance Act of 1982
Source: 48 FR 33442, July 21, 1983, unless otherwise noted.
49 CFR 23.61 Purpose.
(a) The purpose of this subpart is to implement section 106(c) of the
Surface Transportation and Uniform Relocation Assistance Act of 1987
(Pub. L. 100-17) and section 105(f) of the Airport and Airway Safety and
Capacity Expansion Act of 1987 (Pub. L. 100-223) so that, except to the
extent the Secretary determines otherwise, not less than ten percent of
the funds authorized by the Act for the programs listed in 23.63 of
this subpart is expended with small business concerns owned and
controlled by socially and economically disadvantaged individuals.
(b) The ten percent level of participation for disadvantaged
businesses established by section 106(c) and section 105(f) will be
achieved if recipients under the programs covered by this subpart set
and meet overall disadvantaged business goals of at least ten percent.
(48 FR 33442, July 21, 1983, as amended at 52 FR 39230, Oct. 21,
1987; 53 FR 18286, May 23, 1988)
49 CFR 23.62 Definitions.
The following definitions apply to this subpart. Where these
definitions are inconsistent with the definitions of 23.5 of this part,
these definitions control for all other purposes under this part.
Act means the Surface Transportation and Uniform Relocation
Assistance Act of 1987 (Pub. L. 100-17), with respect to financial
assistance programs of the FHWA and UMTA, and the Airport and Airway
Safety and Capacity Expansion Act of 1987 (Pub. L. 100-223), with
respect to FAA programs.
Disadvantaged business means a small business concern: (a) Which is
at least 51 percent owned by one or more socially and economically
disadvantaged individuals, or, in the case of any publicly owned
business, at least 51 percent of the stock of which is owned by one or
more socially and economically disadvantaged individuals; and (b) whose
management and daily business operations are controlled by one or more
of the socially and economically disadvantaged individuals who own it.
Small business concern means a small business as defined pursuant to
section 3 of the Small Business Act and relevant regulations promulgated
pursuant thereto except that a small business concern shall not include
any concern or group of concerns controlled by the same socially and
economically disadvantaged individual or individuals which has annual
average gross receipts in excess of $14 million over the previous three
fiscal years. The Secretary shall adjust this figure from time to time
for inflation.
Socially and economically disadvantaged individuals means those
individuals who are citizens of the United States (or lawfully admitted
permanent residents) and who are women, Black Americans, Hispanic
Americans, Native Americans, Asian-Pacific Americans, or Asian-Indian
Americans and any other minorities or individuals found to be
disadvantaged by the Small Business Administration pursuant to section
8(a) of the Small Business Act. Recipients shall make a rebuttable
presumption that individuals in the following groups are socially and
economically disadvantaged. Recipients also may determine, on a
case-by-case basis, that individuals who are not a member of one of the
following groups are socially and economically disadvantaged.
(a) Black Americans which includes persons having origins in any of
the Black racial groups of Africa;
(b) Hispanic Americans which includes persons of Mexican, Puerto
Rican, Cuban, Central or South American, or other Spanish or Portuguese
culture or origin, regardless of race;
(c) Native Americans which includes persons who are American Indians,
Eskimos, Aleuts, or Native Hawaiians;
(d) Asian-Pacific Americans which includes persons whose origins are
from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the
Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific, and
the Northern Marianas; and
(e) Asian-Indian Americans which includes persons whose origins are
from India, Pakistan, and Bangladesh.
(48 FR 33442, July 21, 1983, as amended at 52 FR 39230, Oct. 21,
1987; 53 FR 18286, May 23, 1988)
49 CFR 23.63 Applicability.
This subpart applies to all DOT financial assistance in the following
categories that recipients expend in DOT-assisted contracts:
(a) Federal-aid highway funds authorized by title I of the Act;
(b) Urban mass transportation funds authorized by title I or III of
the Act or the Urban Mass Transportation Act of 1964, as amended; and
(c) Funds authorized by title I, II (except section 203) or III of
the Surface Transportation Assistance Act of 1982 (Pub. L. 97-424) and
obligated on or after April 2, 1987.
(d) Funds authorized under section title I of the Airport and Airway
Safety and Capacity Expansion Act of 1987 (Pub. L. 100-223).
(52 FR 39231, Oct. 21, 1987, as amended at 53 FR 18286, May 23, 1988)
49 CFR 23.64 Submission of overall goals.
(a) Each recipient of funds to which this subpart applies that is
required to have an MBE program under 23.41 of this part shall
establish an overall goal for the use of disadvantaged businesses.
(b) Each recipient required to establish an overall goal shall
calculate it in terms of a percentage of one of the following bases, as
applicable:
(1) For recipients of Federal-aid highway funds, all such funds that
the recipient will expend in DOT-assisted contracts in the forthcoming
fiscal year; or
(2) For recipients of urban mass transportation or airport funds, all
such funds (exclusive of funds to be expended for purchases of transit
vehicles) that the recipient will expend in DOT-assisted contracts in
the forthcoming fiscal year. In appropriate cases, the UMTA or FAA
Administrator may permit recipients to express overall goals as a
percentage of funds for a particular grant, project, or group of grants
and/or projects.
(c) Each recipient of Federal-aid highway funds, urban mass
transportation funds, or airport funds shall submit its overall goal to
FHWA or UMTA or FAA, as appropriate, for approval 60 days before the
beginning of the Federal fiscal year to which the goal applies. An UMTA
or FAA recipient calculating its overall goal as a percentage of funds
for a particular grant, project, or group of grants or projects shall
submit its overall goal to UMTA or FAA at a time determined by the UMTA
or FAA Administrator.
(d) Recipients submitting a goal of ten percent or more shall submit
the goal under the procedures set forth in 23.45(g) of this part.
(e) If an FHWA or UMTA or FAA recipient requests approval of an
overall goal of less than ten percent, the recipient shall take the
following steps in addition to those set forth in 23.45(g) of this
part:
(1) Submit with its request a justification including the elements
set forth in 23.65;
(2) Ensure that the request is signed, or concurred in, by the
Governor of the state (in the case of a state transportation agency),
the Mayor or other elected official(s) responsible for the operation of
a mass transit agency; or, with respect to an airport sponsor, the
elected official, head of the board, or other official responsible for
the operation of the sponsor, and
(3) Consult with minority and general contractors' associations,
community organizations, and other officials or organizations which
could be expected to have information concerning the availability of
disadvantaged businesses and the adequacy of the recipient's efforts to
increase the participation of such businesses. If it appears to the
Administrator that the recipient has failed to consult with a relevant
person or organization, the Administrator may direct the recipient to
consult with that person or organization.
(48 FR 33442, July 21, 1983, as amended at 53 FR 18286, May 23, 1988)
49 CFR 23.65 Content of justification.
An FHWA or UMTA or FAA recipient requesting approval of an overall
goal of less than ten percent shall include information on the following
points in its justification. Guidance concerning this information is
found in appendix D.
(a) The recipient's efforts to locate disadvantaged businesses;
(b) The recipient's efforts to make disadvantaged businesses aware of
contracting opportunities;
(c) The recipient's initiatives to encourage and develop
disadvantaged businesses;
(d) Legal or other barriers impeding the participation of
disadvantaged businesses at at least a ten percent level in the
recipient's DOT-assisted contracts, and the recipient's efforts to
overcome or mitigate the effects of these barriers;
(e) The availability of disadvantaged businesses to work on the
recipient's DOT-assisted contracts;
(f) The size and other characteristics of the minority population of
the recipient's jurisdiction, and the relevance of these factors to the
availability or potential availability of disadvantaged businesses to
work on the recipient's DOT-assisted contracts; and
(g) A summary of the views and information concerning the
availability of disadvantaged businesses and the adequacy of the
recipient's efforts to increase the participation of such businesses
provided by the persons and organizations consulted by the recipient
under 23.64(f)(3).
(48 FR 33442, July 21, 1983, as amended at 53 FR 18286, May 23, 1988)
49 CFR 23.66 Approval and disapproval of overall goals.
(a) The Administrator reviews and approves any overall goal of ten
percent or more submitted by a recipient as provided in 23.45(g) of
this part.
(b) The Administrator of the concerned Departmental element approves
a requested goal of less than ten percent if he or she determines, on
the basis of the recipient's justification and any other information
available to the Administrator, that
(1) The recipient is making all appropriate efforts to increase
disadvantaged business participation in its DOT-assisted contracts to a
ten percent level; and
(2) Despite the recipient's efforts, the recipient's requested goal
represents a reasonable expectation for the participation of
disadvantaged businesses in its DOT-assisted contracts, given the
availability of disadvantaged businesses to work on these contracts.
(c) Before approving or disapproving a requested goal of less than
ten percent, the Administrator provides the Director of the DOT Office
of Small and Disadvantaged Business Utilization with an opportunity to
review and comment on the request.
(d) If the Administrator does not approve the goal the recipient has
requested, the Administrator, after consulting with the recipient,
establishes an adjusted overall goal. The adjusted overall goal
represents the Administrator's determination of a reasonable expectation
for the participation of disadvantaged businesses in the recipients
DOT-assisted contracts, and is based on the information provided by the
recipient and/or other information available to the Administrator.
(e) The Administrator may condition the approval or establishment of
any overall goal on any reasonable future action by the recipient.
49 CFR 23.67 Special provision for transit vehicle manufacturers.
(a) Each UMTA recipient shall require that each transit vehicle
manufacturer, as a condition of being authorized to bid on transit
vehicle procurements in which UMTA funds participate, certify that it
has complied with the requirements of this section. This requirement
shall go into effect on October 1, 1983.
(b) Each manufacturer shall establish and submit for the UMTA
Administrator's approval an annual percentage overall goal. The base
from which the goal is calculated shall be the amount of UMTA financial
assistance participating in transit vehicle contracts to be performed by
the manufacturer during the fiscal year in question. Funds attributable
to work performed outside the United States and its territories,
possessions, and commonwealths shall be excluded from this base. The
requirements and procedures of 23.64 (d) and (e)(1) and 23.65 --
23.66 of this subpart shall apply to transit vehicle manufacturers as
they apply to recipients.
(c) The manufacturer may make the certification called for in
paragraph (a) if it has submitted the goal required by paragraph (b) and
the UMTA Administrator has either approved it or not disapproved it.
49 CFR 23.68 Compliance.
(a) Compliance with the requirements of this subpart is enforced
through the provisions of this section, not through the provisions of
subpart E of this part.
(b) Failure of a recipient to have an approved MBE program, including
an approved overall goal, as required by 23.64 of this subpart, is
noncompliance with this subpart.
(c) If a recipient fails to meet an approved overall goal, it shall
have the opportunity to explain to the Administrator of the concerned
Department element why the goal could not be achieved and why meeting
the goal was beyond the recipient's control.
(d)(1) If the recipient does not make such an explanation, or if the
Administrator determines that the recipient's explanation does not
justify the failure to meet the approved overall goal, the Administrator
may direct the recipient to take appropriate remedial action. Failure
to take remedial action directed by the Administrator is noncompliance
with this subpart.
(2) Before the Administrator determines whether a recipient's
explanation of justifies its failure to meet the approved overall goal,
the Administrator gives the Director, Office of Small and Disadvantaged
Business Utilization, an opportunity to review and comment on the
recipient's explanation.
(e)(1) In the event of noncompliance with this subpart by a recipient
of Federal-aid highway funds, the FHWA Administrator may take any action
provided for in 23 CFR 1.36.
(2) In the event of noncompliance with this subpart by a recipient of
funds administered by UMTA or FAA, the UMTA or FAA Administrator may
take appropriate enforcement action. Such action may include the
suspension or termination of Federal funds or the refusal to approve
projects, grants, or contracts until deficiencies are remedied.
(48 FR 33442, July 21, 1983; 48 FR 41163, Sept. 14, 1983, as amended
at 53 FR 18286, May 23, 1988)
49 CFR 23.69 Challenge procedure.
(a) Each recipient required to establish an overall goal under 23.64
shall establish a challenge procedure consistent with this section to
determine whether an individual presumed to be socially and economically
disadvantaged as provided in 23.62 is in fact socially and economically
disadvantaged.
(b) The recipient's challenge procedure shall provide as follows:
(1) Any third party may challenge the socially and economically
disadvantaged status of any individual (except an individual who has a
current 8(a) certification from the Small Business Administration)
presumed to be socially and economically disadvantaged if that
individual is an owner of a firm certified by or seeking certification
from the recipient as a disadvantaged business. The challenge shall be
made in writing to the recipient.
(2) With its letter, the challenging party shall include all
information available to it relevant to a determination of whether the
challenged party is in fact socially and economically disadvantaged.
(3) The recipient shall determine, on the basis of the information
provided by the challenging party, whether there is reason to believe
that the challenged party is in fact not socially and disadvantaged.
(i) If the recipient determines that there is not reason to believe
that the challenged party is not socially and economically
disadvantaged, the recipient shall so inform the challenging party in
writing. This terminates the proceeding.
(ii) If the recipient determines that there is reason to believe that
the challenged party is not socially and economically disadvantaged, the
recipient shall begin a proceeding as provided in paragraphs (b) (4),
(5), and (6) of this section.
(4) The recipient shall notify the challenged party in writing that
his or her status as a socially and economically disadvantaged
individual has been challenged. The notice shall identify the
challenging party and summarize the grounds for the challenge. The
notice shall also require the challenged party to provide to the
recipient, within a reasonable time, information sufficient to permit
the recipient to evaluate his or her status as a socially and
economically disadvantaged individual.
(5) The recipient shall evaluate the information available to it and
make a proposed determination of the social and economic disadvantage of
the challenged party. The recipient shall notify both parties of this
proposed determination in writing, setting forth the reasons for its
proposal. The recipient shall provide an opportunity to the parties for
an informal hearing, at which they can respond to this proposed
determination in writing and in person.
(6) Following the informal hearing, the recipient shall make a final
determination. The recipient shall inform the parties in writing of the
final determination, setting forth the reasons for its decision.
(7) In making the determinations called for in paragraphs (b) (3),
(5), and (6) of this section, the recipient shall use the standards set
forth in appendix C to this subpart.
(8) During the pendancy of a challenge under this section, the
presumption that the challenged party is a socially and economically
disadvantaged individual shall remain in effect.
(c) The final determination of the recipient under paragraphs
(b)(3)(i) and (b)(6) may be appealed to the Department by the adversely
affected party to the proceeding under the procedures of 23.55 of this
part.
49 CFR 23.69 Pt. 23, Subpt. D, App. A
49 CFR 23.69 Appendix A to Subpart D -- Section-by-Section Analysis
This section-by-section analysis describes the provisions of the
final rule. This material is normally published in the preamble to the
final rule. However, the Department believes that it may be useful to
recipients, contractors, and the public to publish this information in
an appendix to the final regulation. As a result, this information will
be available to users of the Code of Federal Regulations as well as to
persons who have access to the Federal Register print of the regulation.
This section states that the purpose of subpart D is to implement
section 106(c) of the Surface Transportation and Uniform Relocation
Assistance Act of 1987 and section 105(f) of the Airport and Airway
Safety and Capacity Expansion Act of 1987. The rest of the section
restates the text of the statute and states that the ten percent level
of disadvantaged business participation established by the statute will
be achieved if recipients set and meet goals of at least ten percent.
The Department of Transportation is committed to carrying out section
106(c) and section 105(f) and achieving its objectives, and intends to
enforce the obligations of the recipients and contractors under section
106(c) and section 105(f) and 49 CFR part 23.
As used in subpart D, the word Act means the Surface Transportation
and Uniform Relocation Assistance Act of 1987 Airport and Airway Safety
and Capacity Expansion Act of 1987. The definition of the term
disadvantaged business in subpart D is very similar to the definition of
the term minority business enterprise used for other purposes in 49 CFR
part 23. A different term is employed in recognition of the fact that a
slightly different set of individuals is eligible to own and control a
disadvantaged business than is eligible to own and control a minority
business enterprise. In either case, at least 51 percent of the
business must be owned by one or more of the eligible individuals, and
the firm's management and daily business operations must be controlled
by one or more of the eligible individuals who own it. It is important
to note that the business owners themselves must control the operations
of the business. Absentee ownership, or titular ownership by an
individual who does not take an active role in controlling the business,
is not consistent with eligibility as a disadvantaged business under
this regulation. In order to be an eligible disadvantaged business, a
firm must meet the criteria of 23.53 of this regulation and must be
certified as 49 CFR part 23 provides.
Small business concern is defined as a small business meeting the
standards of section 3 of the Small Business Act and relevant
regulations that implement it. These regulations are summarized in
appendix B to the subpart. It should be emphasized that any business
which fails to qualify under the standards as a small concern, including
a firm certified by SBA under the 8(a) program, cannot be certified as a
disadvantaged business, even though it is owned and controlled by
socially and economically disadvantaged individuals. Since the small
business status of a firm can change over the years, we recommend that
recipients make a point of reviewing periodically the small business
status of firms with existing certifications periodically to make sure
that they still qualify.
Congress determined, in order to ensure that the DBE program meets
its objective of helping small minority businesses become
self-sufficient and able to compete in the market with non-disadvantaged
firms, that DBE firms should ''graduate'' from the program once their
average annual receipts reached $14 million.
In implementing this provision, recipients should note that a firm is
not ''graduated'' from the program, and hence no longer an eligible DBE,
until its average annual gross receipts over the previous three-year
period exceed $14 million. The fact that a firm exceeds $14 million in
gross receipts in a single year does not necessarily result in
''graduation.'' For example, suppose a firm has the following history:
1985 -- $11 million
1986 -- $13 million
1987 -- $14 million
1988 -- $14 million
1989 -- $15 million
The firm makes $14 million in 1987. However, the firm's average
annual gross receipts for 1985-87 are $12.67 million, so the firm
remains eligible in 1988. This hypothetical firm would remain eligible
in 1989 as well, since its average annual gross receipts for 1986-88
would be $13.67 million. However, the firm's average annual gross
receipts for 1987-89 would be $14.3 million. As a result, the firm would
not be an eligible DBE in 1990.
It should also be pointed out the $14 million ceiling, like small
business size limits under section 3 of the Small Business Act, includes
revenues of ''affiliates'' of the firm as well as the firm itself. This
is the import of the ''any concern or group of concerns'' language. In
addition, firms still are subject to applicable lower limits on business
size established by the Small Business Administration in 13 CFR part
121. For example, if SBA regulations say that $7.5 million average
gross annual revenues is the size limit for a certain type of business,
that size limit, rather than the overall $14 million ceiling, determines
whether the firm qualifies in terms of its size to be a DBE.
Socially and economically disadvantaged individuals is the term that
defines the persons eligible to own and control a disadvantaged
business. The term includes the following people: First, anyone found
to be socially and economically disadvantaged by SBA under the 8(a)
program is regarded as socially and economically disadvantaged for the
purpose of DOT-assisted programs. Second, any individual who is a
member of one of the designated groups (Black Americans, Hispanic
Americans, Native Americans, Asian-Pacific Americans, and Asian
Indian-Americans or women) is rebuttably presumed to be socially and
economically disadvantaged. By rebuttably presumed, we mean that the
socially and economically disadvantaged status of any individual who is
a member of one of the groups is normally assumed by the recipient.
With the exception of persons whose origins are from Burma and Thailand
the members of these presumed groups are exactly the same persons who
are considered to be minorities for purposes of the 23.5 definition of
''minority.''
Individuals whose origins are from Burma and Thailand are not
presumed to be socially and economically disadvantaged individuals for
purposes of subpart D. This means that firms owned and controlled by
such individuals are eligible to be considered as MBEs for purposes of
FRA, NHTSA and other DOT financial assistance programs but not as
disadvantaged businesses for purposes of FHWA, UMTA and FAA programs
(unless their owners are determined to be socially and economically
disadvantaged on an individual basis). If SBA determines any additional
groups to be presumptively socially and economically disadvantaged,
these groups will become eligible for consideration as owners of
disadvantaged businesses on the same basis as Black Americans, Hispanic
Americans, and members of the other presumptive groups.
A recipient may, through its certification program, determine that
individuals who are not members of any of the presumptive groups are
socially and economically disadvantaged. On this basis, for example,
disabled Vietnam veterans, Appalachian white males, Hasidic Jews, or any
other individuals who are able to demonstrate to the recipient that they
are socially and economically disadvantaged may be treated as eligible
to own and control a disadvantaged business, on the same basis as a
member of one of the presumptive groups. It must be emphasized that
these individuals are not determined to be socially and economically
disadvantaged on the basis of their group membership. Rather, the
social and economic disadvantage of each must be determined on an
individual, case-by-case basis. Guidance for making these
determinations is found in appendix C.
This section provides that subpart D applies to all DOT financial
assistance in a number of categories that recipients expend ''in
DOT-assisted contracts.'' This last phrase is very important. The base
from which goals are calculated is not the total amount of money which
each recipient receives from FHWA or FAA or UMTA. It is the amount of
money that the recipient expends in DOT-assisted contracts. Funds that
the recipient does not expend in contracts (i.e., funds spent by an FHWA
or FAA recipient to acquire right-of-way or otherwise acquire land or
pay its own employees to supervise construction; funds used by an UMTA
recipient to pay salaries of bus drivers) not part of the base from
which the overall goal is calculated. Only those funds to be expended
by the recipient in contracts are available to create contracting
opportunities for disadvantaged businesses, so only these funds comprise
the base from which goals for the use of disadvantaged businesses are
calculated.
The first category of program funds to which subpart D applies is
Federal-aid highway funds authorized by title I of the Act. The second
category is urban mass transportation funds authorized by title I (i.e.,
interstate transfer and substitution funds) or title III of the Act.
The third category is funds authorized by title I, title II (except
section 203), or title III of the Surface Transportation Assistance Act
of 1982 which were obligated on or after April 2, 1987 (the enactment
date of the STURAA). The provisions of subpart D also apply to the
FAA-administered airport funds authorized by the Airport and Airway
Safety and Capacity Expansion Act of 1987.
This section concerns the procedures for submission of overall goals
to be used by recipients of funds covered by this subpart. Paragraph
(a) is intended to avoid the imposition of new administrative burdens on
recipients of relatively low amounts of DOT financial assistance. This
paragraph provides that only those recipients who are required to have
MBE programs under 49 CFR part 23 must comply with the goal setting
requirements of subpart D. This includes all state transportation
agencies who receive FHWA funds and UMTA recipients who receive at least
$250,000 in UMTA capital and operating funds, exclusive of funds for
transit vehicle purchases, or $100,000 in UMTA planning funds.
Recipients of FAA airport program funds who receive planning funds in
excess of $75,000 or more than $250,000 (general aviation airports),
$400,000 (non-hub airports), or $500,000 (hub airports) in FAA
assistance also must submit overall goals. UMTA or FAA recipients who
are not required to have an MBE program by 23.41 need not comply with
the goal setting provisions of subpart D.
Paragraph (b) describes how recipients calculate their overall goals.
Recipients of FHWA funds use as the base for calculating their
percentage goal all Federal-aid funds that the recipient will expend in
DOT-assisted contracts in the forthcoming fiscal year. Funds authorized
by section 202 of the STAA are considered to be Federal-aid highway
funds for this purpose. For UMTA or FAA funds, the base is all Federal
funds (exclusive of funds to be expended for transit vehicle purchases)
that the recipient will expend in DOT-assisted contracts in the
forthcoming fiscal year. The UMTA or FAA Administrator may, however,
allow recipients to base their goals on Federal funds received for a
particular grant, project, or group of grants or projects.
The Department is aware that recipients may not be aware of the exact
amount of Federal funds to be received or to be used in
Federally-assisted contracts in the forthcoming fiscal year. However,
it is reasonable to expect that recipients will have a close enough
projection so that they can determine a reasonable expectation for
disadvantaged business participation expressed in percentage terms.
Paragraph (c) provides that, with the exception of UMTA or FAA
recipients calculating their goals on a grant or project basis, each
UMTA, FHWA, or FAA recipient which must submit an overall goal is
required to do so by the August 1 preceding the beginning of the fiscal
year to which the goals apply. For example, goal submissions pertaining
to fiscal year 1985 are due August 1, 1984. In the case of Fiscal Year
1984, DOT expects recipients to submit their overall goals for approval
as close to August 1 as possible.
Paragraph (d) provides that, if the recipient is submitting a goal of
ten percent or more, the recipient simply submits the goal under the
procedures of 23.45(g) of this part, exactly in the manner that goals
have been required to be submitted under the existing regulation.
Paragraph (e) concerns the situation in which a recipient is
requesting approval of an overall goal of less than ten percent. Such a
recipient is required to comply with the steps set forth in 23.45(g).
However, it is required to take three additional steps. First, it must
submit a justification for its request containing the information listed
in 23.65.
Second, it must ensure that the request is signed or concurred in by
the Governor of the state (in the case of a state transportation agency)
or the Mayor or other elected official responsible for the operation of
a mass transit agency. If the official responsible for the operation of
a mass transit agency or airport sponsor is not a Mayor, another
appropriate elected official or officials should provide the signature
or concurrence (e.g., a County Executive, the Chairman of a Board of
Directors for a transit authority consisting of elected officials,
etc.). The reason for this requirement is to ensure that a request for a
goal of less than ten percent has the backing of the responsible elected
official. This should help to prevent frivolous requests or requests
based solely on the views of the non-elected staff of a state or local
agency. It is also intended to protect the Department from becoming
involved in a disagreement between, for example, a state transportation
agency and a governor over disadvantaged business policy. It will also
signal to the Department that a request for a lower goal has the backing
of the highest responsible elected official involved with the
jurisdiction.
The third requirement is that, before making a request for a goal of
less than ten percent, the recipient must consult with minority and
general contracting associations, community organizations (particularly
minority community organizations) and other officials or organizations
which can be expected to have information concerning the availability of
disadvantaged businesses and the adequacy of recipients' efforts to
increase the participation of such businesses. This consultation need
not involve a formal public comment period. However, it should involve
contact between responsible official(s) of the recipient and
representatives of the organizations consulted, which should also have
the opportunity to provide written information.
The provision is based on the belief that the organizations consulted
are likely to be in a position to give the recipient useful information
concerning the availability of disadvantaged businesses and the
effectiveness of and problems with the recipient's efforts to increase
disadvantaged business participation. The information sought in the
consultation is intended to include the views of the consulted parties
on the points listed in paragraph (a) -- (f) of 23.65. Such information
is important to the recipient in formulating a request for a goal of
less than ten percent, the Department in evaluating such a request, and
to both the recipient and the Department in attempting to determine what
additional steps would be appropriate to increase disadvantaged business
participation in the future.
There may be some circumstances in which a recipient will have failed
to consult with a party whose information could be very useful to the
formulation and evaluation of a request for a goal less than ten
percent. If the Administrator becomes aware of such a case, the
Administrator has the discretion to tell the recipient to go back and
consult with that party. Pending this further consultation, the
Administrator would not approve the request for a goal of less than ten
percent.
Section 23.65 lists the types of information that a recipient seeking
a goal of less than ten percent must provide to the Administrator. The
purpose of this information is to enable the Department to make an
informed determination of what the reasonable expection for the
recipient's disadvantaged business participation level is for the
forthcoming fiscal year. These items of information are discussed in
greater detail in appendix D. In the absence of a justification, the
FHWA, UMTA, or FAA Administrators will not be able to consider a request
for a goal of less than ten percent.
Paragraph (a) of this section concerns the situation in which a
recipient submits for approval an overall goal of ten percent or more.
In response to such a request, the Administrator follows the review and
approval procedure provided in 23.45(g) of the existing rule. The
FHWA, UMTA, or FAA Administrators will review and approve goals
submitted under this paragraph in the same manner and in accordance with
the same policies as they have reviewed and approved overall goals under
the existing 49 CFR part 23.
Paragraph (b) concerns a situation in which a recipient has requested
approval of a goal of less than ten percent. In order to approve the
goal the recipient has requested, the Administrator must make two
determinations. First, the Administrator must determine that the
recipient is making all appropriate efforts to increase disadvantaged
participation on its DOT-assisted contracts to at least a ten percent
level. Second, the Administrator must determine that, despite the
recipient's efforts, the goal requested by the recipient is the
reasonable expectation, short of ten percent, for the participation of
disadvantaged businesses in its DOT-assisted contracts, given the
availability of disadvantaged businesses to work on these contracts.
Both of these determinations are very important. The concept of a
goal as the reasonable expectation for the recipient's performance
recognizes the possibility that there may be limits, related to the
availability of disadvantaged businesses, that prevent the attainment of
a ten percent goal. Before granting a request for a goal below ten
percent, the Administrator must determine that such a limit does in fact
exist. However, the idea of a reasonable expectation also assumes that
the recipient is doing everything it can to increase disadvantaged
business participation, both by seeking to increase the availability of
disadvantaged businesses and seeking to increase the ability of
available disadvantages businesses to work on its contracts. If the
recipient is not taking all appropriate steps to increase disadvantaged
business participation, then the goal it has requested is not its
reasonable expectation for disadvantaged business participation.
If the Administrator does not approve the goal the recipient has
requested, the Administrator, after consulting with the recipient,
establishes an adjusted overall goal, which represents his or her
determination of the reasonable expectation for recipient's
disadvantaged business participation. This adjusted overall goal is on
information provided by the recipient or any other information available
to the Administrator from other sources, including input from interested
groups and the past performance of the recipient or other recipients
whose situation is analogous to that of the recipient in question. In
approving either the goal requested by the recipient or in establishing
an adjusted overall goal, the Administrator may always condition the
approval or establishment of an overall goal on any reasonable future
action by the recipient.
This section addresses the special situation of the purchase of
transit vehicles by UMTA recipients. The intent of this section is to
provide a simplified method by which transit vehicle manufacturers and
UMTA recipients can meet disadvantaged business obligations. The
Department does not directly regulate transit vehicle manufacturers,
since they are not the recipients of Federal financial assistance from
UMTA. Rather, they are contractors to UMTA recipients. Consequently,
paragraph (a) imposes the basic obligation of this section on UMTA
recipients themselves.
Paragraph (a) is a requirement that UMTA recipients condition the
authority of manufacturers to bid on UMTA-assisted transit vehicle
procurements on a certification by the manufacturer that it has complied
with the other provisions of this section. In order to permit
manufacturers reasonable start-up time, and to avoid disruption of the
whole procurement process, this requirement does not go into effect
until October 1, 1983.
Paragraph (b) requires that, in order to make this certification,
manufacturers have UMTA-approved overall goal. The base for calculating
these goals is the amount of UMTA financial assistance participating in
transit vehicle contracts to be performed by the manufacturer during the
fiscal year in question. The Department is aware that UMTA recipients
order some vehicles from foreign manufacturers and that the vehicles
produced by domestic manufacturers use foreign components in some cases.
The Department's regulation does not, of course, have extraterritorial
application. Consequently, the manufacturer may exclude from the base
from which the goal is calculated the value of the work performed
abroad. For example, suppose an UMTA recipient buys a bus from a
Canadian manufacturer for $100,000. Fifty percent of the work on the
bus is performed in Canada. In this case, the amount of funds
contributing toward the base from which the manufacturer's goal is
calculated is $40,000 (i.e., eighty percent of the $50,000 of the value
of the bus attributable to work performed in the United States).
In submitting an overall goal for the UMTA Administrator's approval,
the manufacturer is required to follow the same procedures as recipients
with respect to timing, justification of goals, etc. The Administrator
follows the same criteria and has the same authority with respect to
approval and conditioning of recipient's overall goals as he or she does
with respect to recipient's goals. The UMTA Administrator may issue
additional guidance with respect to procedures for the submission of
overall goals and the content or justification of overall goals that
take into account special circumstances of transit vehicle
manufacturers, if this appears appropriate.
Paragraph (c) provides that the manufacturer may make the
certification to recipients required by paragraph (a) if it has
submitted the goals provided for by this section and the UMTA
Administrator has either approved them or not disapproved them. This
provision is intended to prevent delays in transit vehicle procurements.
Paragraph (a) points out that compliance with subpart D, as
distinguished from compliance with other portions of the regulation, is
enforced through 23.68 rather than through subpart E of the regulation.
For example, a recipient's failure to have an approved overall goal as
required by subpart D would be treated under 23.68. A complaint of
discrimination against a recipient by a particular disadvantaged
business would be handled under the procedures of subpart E. Paragraphs
(b) and (d)(1) list the three circumstances in which a recipient may
find itself in noncompliance with subpart D. These are the only three
circumstances in which a recipient may be found in noncompliance with
subpart D. While a recipient may be in noncompliance with 49 CFR part
23 for other reasons, these other types of noncompliance are handled
through the procedures of subpart E.
Paragraph (b) names the first two situations in which a recipient may
be found in noncompliance with subpart D. First, the recipient can be
in noncompliance by failing to have an approved overall goal as required
by 23.64. This includes not only the situation in which the recipient
does not submit a goal to the Department for approval, but also
situations in which a recipient does not accept an adjusted overall goal
established by the Administrator or fails or refuses to carry out
conditions established by the Administrator under 23.66(e).
Second, a recipient may be in noncompliance if it does not have an
approved disadvantaged business program. Subpart D does not, in itself,
require the creation of such a program. However, such a program, as
prescribed by other provisions of 49 CFR part 23, is essential if a
recipient is to comply with the disadvantaged business participation
requirements of subpart D. Consequently, the failure to have a program,
or failure to have a program which fully meets the requirements of 49
CFR part 23, is noncompliance with subpart D.
For example, 49 CFR part 23 requires that, before a recipient awards
a contract, it ensure that the apparent successful bidder has met the
contract goal or has demonstrated good faith efforts to do so. If a
recipiet's program does not provide for making this determination before
the award of contract, but instead provides for checking the
disadvantaged business participation efforts of the contractor only
after the award of the contract, the recipient has a program that does
not conform to 49 CFR part 23. The recipient may therefore be found in
noncompliance with subpart D.
Paragraphs (c) and (d)(1) concern the procedure that recipients and
the Department must follow when a recipient is falling or has fallen
short of its approved overall goal. The goal-setting process is
intended to determine, in advance, the reasonable expectation for the
recipient's disadvantaged business participation. These paragraphs are
intended to provide for the situation in which the recipient's
performance does not meet this expectation. At any time the
Administrator requests it, or at the recipient's own initiative, the
recipient would make an explanation to the Administrator concerning why
the goal could not be achieved. This explanation, if it is to be
satisfactory to the Administrator, must demonstrate that recipient's
failure to meet the goal is for reasons beyond the recipient's control.
For example, if the recipient expected substantial disadvantaged
business participation in a major project, and the project was postponed
by litigation or a natural disaster, the recipient could make a case
that its failure to meet the goal was attributable to factors beyond its
control. A situation that might arise more frequently concerns the
failure of contractors to meet contract goals. Under the Department's
regulation, recipients may award contracts to contractors who do not
meet contract goals if these contractors demonstrate to the recipient
that they have made good faith efforts to do so. It is conceivable that
a recipient would have set contract goals commensurate with its overall
goal, would have given appropriate scrutiny to the claims of contractors
that they made unsuccessful but good faith efforts to meet these
contract goals, and awarded contracts to contractors who did not meet
contract goals in a number of instances. Collectively, these contract
awards would cause the recipient to fall below its overall goal.
The Administrator may take circumstances of this kind into account in
determining whether a recipient's failure to meet its overall goal was
because of factors beyond the recipient's control. In doing so,
however, the Administrator also would consider the degree of scrutiny by
the recipients of contractors' claims of unsuccessful good faith efforts
and the efforts the recipient made in order to make up for shortfalls in
particular contracts and prevent such shortfalls in other contracts.
If the recipient's explanation that factors beyond its control
prevented achievement of the overall goal is determined by the
Administrator to justify the failure to reach the goal, the matter is
closed. If the recipient does not provide an explanation or if the
Administrator determines that the recipient's explanation is not
adequate, the Administrator may take the additional step of directing
the recipient to take appropriate remedial action. Remedial action
includes prospective steps to improve disadvantaged business
participation, such as additional outreach, assistance to disadvantaged
businesses or, where not inconsistent with state or local law, the use
of set-asides. In order to take the remedial steps which the
Administrator prescribes, the recipient may have to devote additional
resources to the task.
Failure or refusal by the recipient to take these remedial steps is
the third form of noncompliance with subpart D. The Department wants to
make it very clear that failure to meet an overall goal, as such, does
not constitute noncompliance with subpart D. However, if the recipient
fails to meet the goal, does not satisfactorily explain its failure to
meet the goal as being beyond its control, and then fails or refuses to
take remedial steps prescribed by the Administrator, it would be in
noncompliance.
Paragraph (e) sets forth the sources of sanctions for recipient
noncompliance under subpart D. These sanctions are the same measures
that are available to the FHWA, UMTA or FAA Administrator with respect
to the failure of a recipient to carry out any condition of receiving
Federal financial assistance.
The proposal in the NPRM to make the presumption of social and
economic disadvantage rebuttable caused some confusion among recipients
who commented. They asked whether this meant that they had to
investigate the social and economic status of each business owner that
sought certification for programs covered by subpart D. They also asked
by what criteria, and through what procedure, the rebuttable presumption
would be applied.
This section is intended to answer these questions. First, the basic
meaning of a presumption of social and economic disadvantage is that the
recipient assumes that a member of the designated groups is socially and
economically disadvantaged. In making certification decisions, the
recipient relies on this presumption, and does not investigate the
social and economic status of individuals who fall into one of the
presumptive groups.
However, saying that the presumption is rebuttable means that a third
party may challenge the actual social and/or economic disadvantage of a
business owner who has received or is seeking certification for his firm
from the recipient. The procedures for making such a challenge are
spelled out in this section. They are set forth in detail in 23.69 and
are basically self-explanatory. Two points deserve emphasis. First,
the procedures are intended to be informal. Recipients are not required
to establish elaborate court-like tribunals, use strict rules of
evidence, etc. Second, while a challenge is in progress, the
presumption of social and economic disadvantage remains in effect.
Therefore, if a firm has been certified, and the social and economic
disadvantage of its owner is under challenge, the firm continues to be
certified and eligible to be considered a disadvantaged business for
purposes of the recipient's DOT-assisted contracting activities.
The NPRM proposed to make technical amendments to 23.41(a)(2)(i) and
23.41(a)(3)(ii). These amendments added additional UMTA funding sources
(e.g. Section 9A) to the list of sources from which funds would
contribute toward the threshold amounts for determining whether UMTA
recipients had to have MBE programs. There were no comments on these
proposed changes. These amendments are adopted unchanged from the NPRM.
The final rule makes similar amendments to 23.41 (a)(2)(ii) and
(a)(3)(iii).
In order to prevent uncertainty, the Department wishes to restate the
relationship between subpart D and the remainder of 49 CFR part 23.
Under 49 CFR part 23, certain recipients are required to have MBE
programs. It is only these recipients who are required to follow the
provisions of subpart D. Recipients who must implement subpart D do so
only with respect to their FHWA and UMTA programs cited in subpart D.
For example, a state department of transportation receiving funds from
FHWA, UMTA, NHTSA, FRA, and FAA would be required to follow the subpart
D goal procedures with respect only to its FHWA and UMTA funds. It
would not be required to do so for its FAA, NHTSA, and FRA funds. The
recipient would continue to follow all applicable procedures of 49 CFR
part 23 with respect to the FAA, FRA, and the NHTSA funds.
With respect to FHWA and UMTA-assisted programs, recipients will now
set only one DBE goal, at both the overall and contract goal level.
There are no longer separate DBE and WBE goals. Rather, the single DBE
goal applies to all DBEs, whether they are owned and controlled by
minorities or by women.
The contract award procedures of 49 CFR part 23 apply to contracts
under subpart D just as they do to contracts under other provisions of
49 CFR part 23. Recipients may award contracts to those successful
bidders who meet contract goals or demonstrate that they made good faith
efforts to do so.
Recipients must certify the eligibility of firms to participate under
subpart D programs just as they do with respect to programs covered by
other provisions of 49 CFR part 23. For businesses owned and controlled
by members of the presumptive groups listed in the definition of
socially and economically disadvantaged individuals in subpart D, the
certification process is, with one exception, exactly the same as the
certification process that has existed all along under 49 CFR part 23.
The exception is that individuals with origins in Burma, Thailand, and
Portugal are presumed to be socially and economically disadvantaged.
They can be eligible under subpart D only if they successfully
demonstrate to the recipient that they are socially and economically
disadvantaged as individuals.
However, businesses owned and controlled by individuals with origins
in these countries continue to be eligible minority businesses under
other provisions of 49 CFR part 23. The result is that these firms may
be certified for participation in FAA, FRA, NHTSA, or other DOT-assisted
programs as before, but must make an individual showing of social and
economic disadvantage in order to be regarded as eligible to participate
in FHWA and UMTA programs as disadvantaged businesses. The same
requirement for an individual determination of social and economic
disadvantage applies to any individual who is not a member of one of the
presumptive groups, such as a nonminority woman, a handicapped person,
etc.
Substantial concern has been expressed about the infiltration of
DOT-assisted programs by ''fronts'' -- businesses that claim to be owned
and controlled by minorities, women, or other disadvantaged individuals,
but which, in fact are ineligible for participation is DOT-assisted
programs as MBEs, WBEs or disadvantaged businesses.
The Department wants to take this opportunity to reemphasize the
importance of scrutiny of all firms seeking to participate in
DOT-assisted programs. We believe strongly that recipients should take
prompt action to ensure that only firms meeting the eligibility criteria
of 49 CFR part 23 participate as MBEs, WBEs, or disadvantaged businesses
in DOT-assisted programs. This means not only that recipients should
carefully check the eligibility of firms applying for certification for
the first time, but also that they should review the eligibility of
firms with existing certifications in order to ensure that they are
still eligible. A firm's circumstances, organization, ownership or
control can change over time, resulting in a once-eligible firm becoming
ineligible. A second look at a firm previously found to be eligible may
reveal factors leading, on renewed consideration, to a determination
that it is ineligible.
49 CFR part 23 does not, as presently drafted, prescribe any
particular procedures for actions by recipients to remove the eligiblity
of firms that they have previously treated as eligible. When a
recipient comes to believe that a firm with a current certification is
not eligible, the Department recommends that the recipients take certain
steps before removing the firm's eligibility. The recipient should
inform the firm in writing of its concerns about the firm's eligibility,
give the firm an opportunity to respond to these concerns in person and
in writing, and provide the firm a written explanation of the reasons
for the recipient's final decision. This process may be brief and
informal. For example, the firm's opportunity to respond to the
recipient's concerns need not involve a formal court-type hearing.
However, in the interest of ensuring that eligibility removal decisions
are made fairly, these steps should take place before a firm's
eligibility is removed. The Department believes that such a procedure
in so-called ''decertification'' cases will make the procedure fairer
and better administratively, as well as help prevent unnecessary
procedural litigation. Procedures of this kind are not a regulatory
requirement, but the Department believes that, as a matter of policy,
that they are advisable for recipients to use.
Once a recipient has made a final decision on certification, that
determination goes into effect immediately with respect to the
recipient's DOT-assisted contracts (see 23.53(g)). If a firm that has
been denied certification or has been decertified appeals the
recipient's action to the Department under 23.55, or if a third party
challenges the recipient's decision to certify the firm under 23.55,
the recipient's action remains in effect until and unless the Department
makes a determination under 23.55 reversing the recipient's action.
The recipient's action is not stayed during the pendancy of a 23.55
appeal.
For example, if a recipient has decertified a firm and the firm
appeals the decertification to DOT, the firm remains ineligible for
consideration as a disadvantaged business with respect to the
recipient's DOT-assisted programs until and unless the Department finds
that the firm is eligible. Likewise, if the recipient has certified the
firm as eligible, the firm remains eligible while the Department's
consideration of a third party's challenge to its eligiblity is pending.
The Department has followed this policy and interpretation of its
regulations consistently under the existing rule, and we will continue
to do so with respect to subpart D.
There is only one exception to this rule. Section 23.55(c) provides
that, in appropriate cases, the Secretary may deny the firm in question
eligiblity to participate as an MBE (or disadvantaged business) on
DOT-assisted contracts let during the pendacy of the investigation,
after providing the firm an opportunity to show cause by written
statement to the Secretay why this should not occur. This paragraph is
intended, and has been consistently interpreted and applied by the
Department, to cover only a situation in which the recipient has decided
that a firm is eligible and a third party has challenged the correctness
of the recipient's determination. As a matter of policy, the Department
believes that the award of contracts to ineligible firms is a very
serious blow to the integrity of the Department's program.
Consequently, if it appears to the Department that a challenged firm's
eligibility is in serious doubt, the Department, under 23.55(c), can
administratively ''enjoin'' the firm's participation pending a final
determination on the merits of the challenge to its certification. This
provision does not, however, authorize the Department to maintain a
firm's certification in effect pending the outcome of the 23.55 Appeal,
when the recipient has refused to certify or has decertified the firm.
(48 FR 33442, July 21, 1983, as amended at 52 FR 39231, Oct. 21,
1987; 53 FR 18287, May 23, 1988)
49 CFR 23.69 Pt. 23, Subpt. D, App. B
49 CFR 23.69 Appendix B to Subpart D -- Determinations of Business Size
In determining the eligibility of businesses for purposes of 49 CFR
part 23, recipients must determine whether or not a business is a small
business concern as defined by section 3 of the Small Business Act. If
a business is not a small business concern according to these standards,
then it is not eligible to participate as an MBE, WBE, or disadvantaged
business under 49 CFR part 23. This is true even though the business
may be owned and controlled by minorities, women, or socially and
economically disadvantaged individuals and is eligible in all other
respects. Even a firm certified by the SBA under the 8(a) program is
not eligible under this regulation if it is not a small business.
In determining whether a business is a small business concern,
recipients should apply the standards established by the Small Business
Administration in 13 CFR part 121. In particular, recipients should
refer to 121.3-8 (Definition of Small Business for Government
Procurement) and 121.3-12 (Definition of Small Business for Government
Subcontractors). This appendix lists the most frequent applications of
these sections to the kinds of contracting done by FHWA and UMTA
recipients. For information on types of businesses not listed in this
appendix (e.g., manufacturers), recipients should consult 121.3-8 and
the appendices to 13 CFR part 121.
Recipients should apply the following size standards:
1. Subcontracts of $10,000 or less: A business is small if,
including its affiliates, it does not have more than 500 employees.
2. Subcontracts over $10,000 and prime contracts:
A business is regarded as small if it meets the following criteria:
(a) Construction.
(1) General Construction (in which less than 75 percent of the work
falls into one of the categories in paragraph (2)): The firm's average
annual receipts for the three preceding fiscal years do not exceed $12
million.
(2) Special trade contractors:
(b) Suppliers of manufactured goods: The firm, including its
affiliates, must not have more than 500 employees.
(c) Service contractors:
49 CFR 23.69 Pt. 23, Subpt. D, App. C
49 CFR 23.69 Appendix C to Subpart D -- Guidance for Making
Determinations of Social and Economic Disadvantage
Before making any determination of social and economic disadvantage,
the recipient should always determine whether a firm is a small business
concern. If it is not, then the firm is not eligible to be considered a
disadvantaged business, and no further determinations need be made.
Under the definition of ''socially and economically disadvantaged
individual'' used in subpart D of this part, members of the named groups
(Black Americans, Hispanic Americans, Native Americans, Asian Pacific
Americans, and Asian-Indian Americans) and persons certified as socially
and economically disadvantaged by the Small Business Administration
(SBA) under the SBA's section 8(a) program are presumed to be both
socially and economically disadvantaged. This presumption is
rebuttable. This means that, as part of a challenge to the eligibility
of a firm a recipient has certified under 23.69 of this regulation, a
third party may present evidence that the firm's owners are not truly
socially and/or ecomonically disadvantaged, even though they are members
of one of the presumptive groups. Recipients must follow the challenge
procedure in 23.69 when a challenge is made, using this appendix for
guidance in making determinations under that procedure.
Under the regulation, anyone who has been certified by SBA under its
8(a) program as socially and economically disadvantaged is automatically
considered to be a socially and economically disadvantaged individual
for purposes of this regulation. However, the absence of an 8(a)
certification does not mean that an individual or firm is ineligible
under this regulation.
Recipients should continue the existing practice of making their own
judgments about whether an individual is in fact a member of one of the
presumptive groups. If an individual has not maintained identification
with the group to the extent that he or she is commonly recognized as a
group member, it is unlikely that he or she will in fact have suffered
the social disadvantage which members of the group are presumed to have
experiences. If an individual has not held himself or herself out to be
a member of one of the groups, has not acted as a member of a community
of disadvantaged persons, and would not be identified by persons in the
population at large as belonging to the disadvantaged group, the
individual should be required to demonstrate social disadvantage on an
individual basis.
For example, an individual could demonstrate that he had a Chinese
ancestor. However, this hypothetical person has never lived in a
Chinese-American community, has held himself out to be white for
driver's license or other official records purposes, has not previously
claimed to be a Chinese-American, and would not be perceived by others
in either the Chinese-American community or non-minority community to be
a Chinese-American (or any other sort of Asian-Pacific American) by
virtue of his appearance, culture, language or associations. The
recipient should not regard this individual as an Asian-Pacific
American.
Individuals who are not presumed to be socially and economically
disadvantaged by virtue of membership in one of these groups may,
nevertheless, be found to be socially and economically disadvantaged on
a case-by-case basis. If an individual requests that his or her
business be certified as an eligible disadvantaged business under
subpart D, the recipient, as part of its certification process, is
responsible for making a determination of social and economic
disadvantage.
In making determinations of social and economic disadvantage,
recipients should be guided by the following standards, which have been
adopted from materials prepared by the SBA.
(1) Elements of Social Disadvantage. In order to determine that an
individual is socially disadvantaged, the recipient must conclude that
the individual meets the following standards:
(i) The individual's social disadvantage must stem from his or her
color; national origin; gender; physical handicap; long-term
residence in an environment isolated from the mainstream of American
society; or other similar cause beyond the individual's control. The
individual cannot establish social disadvantage on the basis of factors
which are common to small business persons who are not socially
disadvantaged. For example, because of their marginal financial status,
many small businesses have difficulty obtaining credit through normal
banking channels. An individual predicating a social disadvantage claim
on denial of bank credit to his or her firm would have to establish that
the denial was besed on one or more of the listed causes, or similar
causes -- not simply on the individual's or the firm's marginal
financial status.
(ii) The individual must demonstrate that he or she has personally
suffered social disadvantage, not merely claim membership in a
non-designated group which could be considered socially disadvantaged.
This can be achieved, for example, by describing specific instances of
discrimination which the individual has experienced, or by recounting in
some detail how his or her development in the business world has been
thwarted by one or more of the listed causes or similar causes. As a
general rule, the more specific an explanation of how one has personally
suffered social disadvantage, the more persuasive it will be. In
assessing such facts, the recipient should place substantial weight on
prior administrative or judicial findings of discrimination experienced
by the individual. Such findings, however, are not necessarily
conclusive evidence of an individual's social disadvantage; nor are
they a prerequisite for establishing social disadvantage.
(iii) The individual's social disadvantage must be rooted in
treatment which he or she has experienced in American society, not in
other countries.
(iv) The individual's social disadvantage must be chronic,
longstanding, and substantial, not fleeting or insignificant.
Typically, a number of incidents illustrating a person's social
disadvantage, occurring over a substantial period of time, would be
necessary to make a successful claim. Usually, only by demonstrating a
series of obstacles which have impeded one's progress in the business
world can an individual demonstrate chronic, longstanding, and
substantial social disadvantage.
(v) The individual's social disadvantage must have negatively
affected his or her entry into, and/or advancement in, the business
world.
The closer the individual can link social disadvantage to impairment
of business opportunities, the stronger the case. For example, the
recipient should place little weight on annoying incidents experienced
by an individual which have had little or no impact on the person's
career or business development. On the other hand, the recipient should
place greater weight on concrete occurrences which have tangibly
disadvantaged an individual in the business world.
(2) Evidence of Social Disadvantage. The recipient should entertain
any relevant evidence in support of an individual's claim of social
disadvantage. In addition to a personal statement from the individual
claiming to be socially disadvantaged, such evidence may include, but is
not limited to: third party statements; copies of administrative or
judicial findings of discrimination; and other documentation in support
of matters discussed in the personal statement. The recipient should
particularly consider and place emphasis on the following experiences of
the individual, where relevant: education, employment, and business
history. However, the individual may present evidence relating to other
matters as well. Moreover, the attainment of a quality education or job
should not absolutely disqualify the individual from being found
socially disadvantaged if sufficient other evidence of social
disadvantage is presented the recipient.
(i) Education. The recipient should consider, as evidence of an
individual's social disadvantage, denial of equal access to business or
professional schools; denial of equal access to curricula; exclusion
from social and professional association with students and teachers;
denial of educational honors; social patterns or pressures which have
discouraged the individual from pursuing a professional or business
education; and other similar factors.
(ii) Employment. The recipient should consider, as evidence of an
individual's social disadvantage: discrimination in hiring;
discrimination in promotions and other aspects of professional
advancement; discrimination in pay and fringe benefits; discrimination
in other terms and conditions of employment; retaliatory behavior by an
employer; social patterns or pressures which have channelled the
individual into non-professional or non-business fields; and other
similar factors.
(iii) Business History. The recipient should consider, as evidence
of an individual's social disadvantage, unequal access to credit or
capital; acquisition of credit under unfavorable circumstances;
discrimination in receipt (award and/or bid) of government contracts;
discrimination by potential clients; exclusion from business or
professional organizations; and other similar factors which have
retarded the individual's business development.
Recipients should always make a determination of social disadvantage
before proceeding to make a determination of economic disadvantage. If
the recipient determines that the individual is not socially
disadvantaged, it is not necessary to make the economic disadvantage
determination.
As a general rule, economically disadvantaged individuals are
socially disadvantaged individuals whose ability to compete in the free
enterprise system has been impaired due to diminished capital and credit
opportunities, as compared to others in the same or similar line of
business and competitive market area who are not socially disadvantaged.
In determining the degree of diminished credit and capital opportunites
of a socially disadvantaged individual, consideration will be given to
both the disadvantaged individual and the applicant concern with which
he or she is affiliated.
In considering the economic disadvantage of firms and owners, it is
important for recipients to understand that they are making a
comparative judgment about relative disadvantage. Obviously, someone
who is destitute is not likely to be in any position to own a business.
The test is not absolute deprivation, but rather disadvantage compared
to business owners who are not socially disadvantaged individuals and
firms owned by such individuals.
It is the responsibility of applicant firms and their owners to
provide information to the recipient about their economic situation when
they seek eligibility as disadvantaged businesses. Recipients are
encouraged to become as knowledgeable as they can about the types of
businesses with which they deal, so that they can make a reasonably
informed comparison between an applicant firm and other firms in the
same line of business. Recipients are not required to make a detailed,
point-by-point, accountant-like comparison of the businesses involved.
Recipients are expected to make a basic judgment about whether the
applicant firm and its socially disadvantaged owner(s) are in a more
difficult economic situation than most firms (including established
firms) and owners who are not socially disadvantaged.
It is very important for recipients to realize that making a
determination of social and economic disadvantage, standing alone, does
not mean that a firm is eligible. The recipient must also determine
that the firm is 51 percent owned by socially and economically
disadvantaged individuals and that these individuals control the firm.
In making these latter determinations, recipients should continue to
follow 23.51-23.53 of subpart C of 49 CFR part 23.
If a firm or other party believes that any recipient's social and
economic disadvantage determination is in error, the firm or party may
make an administrative certification appeal to the Department as
provided in 49 CFR 23.55.
49 CFR 23.69 Pt. 23, Subpt. D, App. D
49 CFR 23.69 Appendix D to Subpart D -- Justification for Requests for
Approval of Overall Goals of Less Than Ten Percent
The purpose of a justification for a request for approval of an
overall goal of less than ten percent is to explain why the goal
requested by the recipient is the reasonable expectation for the
participation of disadvantaged businesses in the recipient's
DOT-assisted contracts. The justification has two basic elements.
First, the recipient should show that it is doing as much as it can to
increase disadvantaged business participation to at least a ten percent
level. Second, the recipient should show that, given the availability
of disadvantaged businesses, the requested goal is the reasonable
expectation for the level of disadvantaged business participation that
these efforts are likely to obtain.
With respect to the specific elements of the justification listed in
23.65, the Department offers the following guidance, usually in the form
of questions the answers to which will help the Department make an
informed decision. It should be emphasized that this material is
guidance, and is not intended to create a regulatory requirement or a
mandatory list of the contents for recipient's submissions. However, it
will help the Department to make expeditious and well-informed decisions
if recipients provide reasonably complete and detailed information.
Doing so will also facilitate suggestions by the Department on
additional ways recipients can increase disadvantaged business
participation.
(a) Efforts to locate disadvantaged businesses. What contacts has
the recipient made with sources of information about disadvantaged
businesses (such as minority contractors, associations, the Commerce
Department's Minority Business Development Administration, DOT Office of
Small and Disadvantaged Utilization (and its Program Management
Centers), and other recipients' directories of disadvantaged
businesses)? In what geographic areas has it sought to locate
additional disadvantaged businesses? Have these or other information
sources produced additional names of disadvantaged businesses
potentially available to work on the recipient's DOT-assisted contract?
What follow-up was done with respect to these firms?
(b) Efforts to make disadvantaged businesses aware of contracting
opportunities. What steps does the recipient take through publications,
advertising, pre-bid conferences, direct contact, putting disadvantaged
businesses in touch with firms that may bid on prime contracts, and
other means to let disadvantaged businesses know about specific
contracting and subcontracting opportunities as they arise? (Activity
of this kind by the recipient is important because, in many cases,
disadvantaged businesses may not be in a position to learn of
contracting opportunities through informal communications networks
available to non-disadvantaged firms.)
(c) Initiatives to encourage and develop disadvantaged businesses.
What is the recipient doing to assist the formation and growth of
disadvantaged firms, by means such as training, technical assistance,
financial assistance and involvement of other sources of support (such
as the FHWA Supportive Services Program and other Federal, state, or
local agencies and associations)? What has the recipient done to
facilitate the ability of disadvantaged businesses to perform contracts
(e.g., splitting a large contract or project into smaller segments that
disadvantaged businesses can more readily perform)?
(d) Legal or other barriers to disadvantaged business participation.
What specific barriers to disadvantaged business participation has the
recipient identified? (Common barriers include bonding,
prequalification and licensing requirements; difficulty in obtaining
financing; any state or local residency requirement or preference, or
any other formal or informal limitations on the area from which
disadvantaged businesses are sought; and the reluctance of some members
of the non-disadvantaged contracting community to use firms owned and
controlled by socially and economically disadvantaged persons.) What is
the recipient doing about the barriers it has identified? (Examples of
efforts to overcome or mitigate the effect of these barriers include
changes to or exceptions from state or local requirements as they affect
disadvantaged businesses, technical or financial assistance to
disadvantaged businesses to help them meet existing requirements, or
cooperative efforts with financial institutions and non-minority
contractors' associations.)
(e) The availability of disadvantaged businesses. How many
disadvantaged businesses are available to perform work for the recipient
on DOT-assisted contracts? The starting point for the recipient's
information should be its directory or list of certified disadvantaged
businesses. The number of firms in this directory may not give a
complete picture, however. Disadvantaged firms in other jurisdictions,
not currently certified by the recipient, may be willing and able to
work on the recipient's contracts. On the other hand, firms in the
directory may have limited availability (e.g., lack of interest in the
recipient's work, other commitments, limitations of the amount of work
they can handle). In some cases (e.g., where a state spends a large
portion of its funds on a single large project requiring very
specialized contractors), the availability of work that disadvantaged
firms can perform could be a limitation. The recipient, as appropriate,
should discuss these factors as they affect a determination of the
reasonable expectation for disadvantaged business participation in its
DOT-assisted contracts.
The recipient should not only advise the Department how many
disadvantaged firms exist, but also analyze the dollar volume of the
recipient's work the available firms are likely to be able to perform in
the fiscal year (or other period) in question.
(f) Size and other characteristics of the recipient's jurisdiction's
minority population. What is the size of the minority population of the
recipient's jurisdiction? (In some cases, not only the size but also
the composition or residence pattern of the minority population may be
relevant). Where relevant, what is the size of the minority population
of nearby jurisdictions?
Minority population is usually not an exact index of the availability
of disadvantaged businesses. In some cases, disadvantaged business
participation levels for various recipients have ranged well above or
below the minority population of the jurisdictions involved. In any
event, recipients should tie any assertions they make on the basis of
minority population to the effect they believe it has on disadvantaged
business availability.
(g) Views and information from the consultation process. With whom
has the recipient consulted and what did the consulted parties say with
respect to anything in paragraph (a)-(f)? In particular, what were the
views of and information provided by the disadvantaged business
community concerning the availability of such firms, barriers to their
participation and what is needed to overcome them, the efficacy of the
recipient's efforts to increase disadvantaged business participation and
what could be done to improve these efforts?
49 CFR 23.69 Subpart E -- Compliance and Enforcement
49 CFR 23.73 Complaints.
(a) Filing. Any person who believes himself or herself, another
person, or any specific class of individuals to be subjected to a
violation of this part may file a complaint in writing, signed and
dated, with the Department. The complaint shall be filed no later than
180 days after the date of an alleged violation or the dates on which a
continuing course of conduct in violation of this part was disclosed.
The Secretary may extend the time for filing or waive the time limit in
the interest of justice, specifying in writing the reason for so doing.
(b) Investigations. The Secretary ensures that a prompt
investigation is made pursuant to prescribed DOT Title VI investigation
procedures.
(c) Cooperation in investigation. The respondent to the complaint
shall cooperate fully with the investigation. Failure or refusal by the
respondent to furnish requested information or other failure to
cooperate is a violation of this part.
(d) Determinations. Upon completion of the investigation, the
Secretary informs the recipient or contractor and complainant of the
results of the investigation in writing. If the investigation indicates
a failure to comply with this part, the conciliation procedures of
23.81 and, if necessary, the enforcement procedures of 23.83 are
followed.
(e) Intimidation or retaliation acts prohibited. No recipient,
contractor, or other person shall intimidate, threaten, coerce, or
discriminate against any individual for the purpose of interfering with
any right or privilege secured by this part, or because he or she made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part. The identity of
complainants shall be kept confidential at their election during the
conduct of any investigation, proceeding, or hearing under this part.
But when such confidentiality is likely to hinder the investigation the
complainant shall be advised for the purpose of waiving the privilege.
49 CFR 23.75 Compliance reviews of recipients.
(a) Desk audit. All compliance reviews conducted after financial
assistance has been approved or contracts have been awarded begin with a
desk audit. The desk audit is a review of all material and information
concerning the recipient's MBE performance.
(b) On-site review. An on-site review includes interviews, visits to
project or facility sites receiving DOT funds, and inspection of any
statistical or documentary materials relevant to the recipient's
performance which were not available for review during the desk audit.
(c) Cooperation. The recipient shall cooperate fully with these
reviews. Failure or refusal to furnish requested information or failure
to cooperate is a violation of this part.
(d) Determination. As a result of its review of the recipient, the
Departmental element civil rights staff makes one of the following
determinations:
(1) The recipient is in compliance with its MBE obligations; or
(2) There is reasonable cause to believe that the recipient is not in
compliance with its MBE obligations in certain specified respects.
Proceedings shall be begun in accordance with 23.81 and, if necessary,
23.83.
49 CFR 23.81 Conciliation procedures for financial assistance programs.
(a) Reasonable cause notice. Whenever the responsible office of
civil rights makes a determination of reasonable cause to believe that a
recipient is in noncompliance, a notice is sent promptly and in writing
by registered mail, return receipt requested, describing the areas of
noncompliance requiring the applicant or recipient to show cause within
30 days why enforcement proceedings or other appropriate action to
ensure compliance should not be instituted and offering the recipient an
opportunity to conciliate. The responsible office of civil rights shall
pursue conciliation efforts for at least 30 days from the date of the
reasonable cause notice.
(1) Successful conciliation. If a conciliation agreement is signed
by the Departmental element's office of civil rights and recipient, it
is approved or disapproved by the head of the Departmental element
within 20 days of receiving it. If the head of the Departmental element
disapproves the agreement, the reasons therefor are stated in writing.
The head of the Departmental element may propose amendments to the
agreement which are forwarded to the recipient, requesting the
recipient's acceptance or rejection of the amended agreement within 20
days of receipt.
(2) Unsuccessful conciliation. If no agreement is signed within 120
days of the notice of reasonable cause enforcement proceedings set forth
in 23.83 begin. The head of the responsible office of civil rights,
upon a written determination that an additional 30 days are needed to
complete conciliation, may extend the conciliation period for 30 days.
Subsequent extensions may be made upon such written determinations. The
determinations shall include reasons for the extension and shall be
provided to the complainant and respondent.
(b) Effect of conciliation agreement. If a conciliation agreement is
approved, the existence of the determination of noncompliance does not
act as a bar to the provision of financial assistance as long as the
terms of the agreement are fulfilled. A compliance review is conducted
by the Department element within nine months of the approval of an
agreement.
49 CFR 23.83 Enforcement proceedings for financial assistance programs.
(a) Whenever conciliation efforts pursuant to 23.81 are
unsuccessful, enforcement proceedings begin. These proceedings are
conducted in accordance with the Department's procedures for enforcing
Title VI (49 CFR part 21).
(b) A finding of noncompliance and the imposition of any sanction
pursuant to these proceedings is binding on all other Departmental
elements. Sanctions are limited to the recipient with respect to whom
the noncompliance finding has been made and to the particular program or
activity, or part thereof, in which noncompliance has been found.
49 CFR 23.85 Emergency enforcement procedure.
(a) General. Whenever the Secretary determines that the conciliation
and enforcement proceedings set forth in 23.81 and 23.83 will not
result in the timely and adequate enforcement of the provisions of this
part, he/she initiates special enforcement procedures to obtain
compliance.
(b) Emergency reasonable cause notice. A notice is sent, registered
mail, return receipt requested, describing the areas of alleged
noncompliance, setting forth the reasons why the normal course of
conciliation and enforcement pursuant to 23.81 and 23.83 will not
result in timely and adequate enforcement, and requiring the recipient
to show cause, within a specified period of time, generally not to
exceed 15 days, why appropriate action, described in the notice, to
ensure compliance should not be taken. The notice states that the
recipient must respond in writing or orally on the record before an
official appointed by the Secretary or the proposed action will be
taken.
(c) Decision. If the Secretary, after reviewing the recipient's oral
or written response, determines that such action is necessary, he/she
orders that all or any part of the contracting activities of the
recipient affected by the recipient's alleged noncompliance be halted
until the matter is resolved under 23.81 or 23.83. The Secretary's
action under this paragraph may not affect any contract already awarded.
When the Secretary makes an order under this paragraph, resolution of
the matter shall proceed on an expedited basis.
49 CFR 23.87 Suspension and debarment; referral to the Department of
Justice.
(a) If, at any time, any person has reason to believe that any person
or firm has willfully and knowingly provided incorrect information or
made false statements, or otherwise acted in a manner subjecting that
person or firm to suspension or debarment action under 49 CFR part 29,
he or she may contact the appropriate DOT element concerning the
existence of a cause for suspension or debarment, as provided in 49 CFR
29.17.
(b) Upon the receipt of information indicating a violation of 18
U.S.C. 1001, or any other Federal criminal statute, the Department may
refer the matter to the Department of Justice for appropriate legal
action.
(50 FR 18494, May 1, 1985)
49 CFR 23.87 Pt. 23, Schedule A
49 CFR 23.87 Schedule A -- Information for Determining Minority
Business Enterprise Eligibility
1. Name of firm 2. Address of firm 3. Phone Number of firm 4.
Indicate whether firm is sole proprietorship, partnership,
joint venture, corporation or other business entity (please specify)
-- 5. Nature of firm's business 6. Years firm has been in
business
7. Ownership of firm: Identify those who own 5 percent or more of
the firm's ownership. Columns e and f need be filled out only if the
firm is less than 100 percent minority owned.
With firms less than 100 percent minority owned, list the
contributions of money, equipment, real estate, or expertise of each of
the owners.
8. Control of firm: (a) Identify by name, race, sex, and title in
the firm those individuals (including owners and non-owners) who are
responsible for day-to-day management and policy decisionmaking,
including, but not limited to, those with prime responsibility for:
(1) Financial decisions
(2) Management decisions, such as --
a. Estimating b. Marketing and sales c. Hiring and firing of
management personnel d. Purchases of major items or supplies (3)
Supervision of field operations
9. For each of those listed in question 8, provide a brief summary of
the person's experience and number of years with the firm, indicating
the person's qualifications for the responsibilities given him or her.
10. Describe or attach a copy of any stock options or other ownership
options that are outstanding, and any agreements between owners or
between owners and third parties which restrict ownership or control of
minority owners.
11. Identify any owner (see item 7) or management official (see item
8) of the named firm who is or has been an employee of another firm that
has an ownership interest in or a present business relationship with the
named firm. Present business relationships include shared space,
equipment, financing, or employees as well as both firms having some of
the same owners.
12. What are the gross receipts of the firm for each of the last two
years?
Year ending
$
Year ending
$
13. Name of bonding company, if any: --
Bonding limit
Source of letters of credit, if any
14. Are you authorized to do business in the state as well as
locally, including all necessary business licenses?
15. Indicate if this firm or other firms with any of the same
officers have previously received or been denied certification or
participation as an MBE and describe the circumstances. Indicate the
name of the certifying authority and the date of such certification or
denial.
''The undersigned swears that the foregoing statements are true and
correct and include all material information necessary to identify and
explain the operations of -------- (name of firm) as well as the
ownership thereof. Further, the undersigned agrees to provide through
the prime contractor or, if no prime, directly to the grantee current,
complete and accurate information regarding actual work performed on the
project, the payment therefor and any proposed changes, if any, of the
foregoing arrangements and to permit the audit and examination of books,
records and files of the named firm. Any material misrepresentation
will be grounds for terminating any contract which may be awarded and
for initiating action under Federal or State laws concerning false
statements.''
Note: If, after filing this Schedule A and before the work of this
firm is completed on the contract covered by this regulation, there is
any significant change in the information submitted, you must inform the
grantee of the change through the prime contractor or, if no prime
contractor, inform the grantee directly.
Signature Name Title Date
Corporate Seal (where appropriate).
Date State of County of
On this -- day of ---- , 19 -- , before me appeared (Name) -------- ,
to me personally known, who, being duly sworn, did execute the foregoing
affidavit, and did state that he or she was properly authorized by (Name
of firm) -------- to execute the affidavit and did so as his or her free
act and deed.
(Seal)
Notary Public
Commission expires
49 CFR 23.87 Pt. 23, Schedule B
49 CFR 23.87 Schedule B -- Information for Determining Joint Venture
Eligibility
(This form need not be filled in if all joint venture firms are
minority owned.)
1. Name of joint venture 2. Address of joint venture 3. Phone
number of joint venture 4. Identify the firms which comprise the
joint venture. (The
MBE partner must complete Schedule A.)
(a) Describe the role of the MBE firm in the joint venture. (b)
Describe very briefly the experience and business
qualifications of each non-MBE joint venturer:
5. Nature of the joint venture's business
6. Provide a copy of the joint venture agreement.
7. What is the claimed percentage of MBE ownership?
8. Ownship of joint venture: (This need not be filled in if
described in the joint venture agreement, provided by question 6.)
(a) Profit and loss sharing.
(b) Capital contributions, including equipment.
(c) Other applicable ownership interests.
9. Control of and participation in this contract. Identify by name,
race, sex, and ''firm'' those individuals (and their titles) who are
responsible for day-to-day management and policy decisionmaking,
including, but not limited to, those with prime responsibility for:
(a) Financial decisions
(b) Management decisions, such as:
(1) Estimating (2) Marketing and sales (3) Hiring and firing of
management personnel (4) Purchasing of major items or supplies
(c) Supervision of field operations
Note: If, after filing this Schedule B and before the completion of
the joint venture's work on the contract covered by this regulation,
there is any significant change in the information submitted, the joint
venture must inform the grantee, either directly or through the prime
contractor if the joint venture is a subcontractor.
''The undersigned swear that the foregoing statements are correct and
include all material information necessary to identify and explain the
terms and operation of our joint venture and the intended participation
by each joint venturer in the undertaking. Further, the undersigned
covenant and agree to provide to the grantee current, complete and
accurate information regarding actual joint venture work and the payment
therefor and any proposed changes in any of the joint venture
arrangements and to permit the audit and examination of the books,
records and files of the joint venture, or those of each joint venturer
relevant to the joint venture, by authorized representatives of the
grantee or the Federal funding agency. Any material misrepresentation
will be grounds for terminating any contract which may be awarded and
for initiating action under Federal or State laws concerning false
statements.''
Date
State of
County of
On this -- day of ---- , 19 -- , before me appeared (Name) -------- ,
to me personally known, who, being duly sworn, did execute the foregoing
affidavit, and did state that he or she was properly authorized by (Name
of firm) -------- to execute the affidavit and did so as his or her free
act and deed.
Notary Public
Commission expires
(Seal)
Date
State of
County of
On this -- day of ---- , 19 -- , before me appeared (Name) -------- ,
to me personally known, who, being duly sworn, did execute the foregoing
affidavit, and did state that he or she was properly authorized by (Name
of firm) -------- to execute the affidavit and did so as his or her free
act and deed.
Notary Public
Commission expires
(Seal)
49 CFR 23.87 PART 24 -- UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS
49 CFR 23.87 Subpart A -- General
Sec.
24.1 Purpose.
24.2 Definitions.
24.3 No duplication of payments.
24.4 Assurances, monitoring and corrective action.
24.5 Manner of notices.
24.6 Administration of jointly-funded projects.
24.7 Federal agency waiver of regulations.
24.8 Compliance with other laws and regulations.
24.9 Recordkeeping and reports.
24.10 Appeals.
49 CFR 23.87 Subpart B -- Real Property Acquisition
24.101 Applicability of acquisition requirements.
24.102 Basic acquisition policies.
24.103 Criteria for appraisals.
24.104 Review of appraisals.
24.105 Acquisition of tenant-owned improvements.
24.106 Expenses incidental to transfer of title to the Agency.
24.107 Certain litigation expenses.
24.108 Donations.
49 CFR 23.87 Subpart C -- General Relocation Requirements
24.201 Purpose.
24.202 Applicability.
24.203 Relocation notices.
24.204 Availability of comparable replacement dwelling before
displacement.
24.205 Relocation planning, advisory services, and coordination.
24.206 Eviction for cause.
24.207 General requirements -- claims for relocation payments.
24.208 Relocation payments not considered as income.
49 CFR 23.87 Subpart D -- Payments for Moving and Related Expenses
24.301 Payment for actual reasonable moving and related expenses --
residential moves.
24.302 Fixed payment for moving expenses -- residential moves.
24.303 Payment for actual reasonable moving and related expenses --
nonresidential moves.
24.304 Reestablishment expenses -- nonresidential moves.
24.305 Ineligible moving and related expenses.
24.306 Fixed payment for moving expenses -- nonresidentia1 moves.
24.307 Discretionary utility relocation payments.
49 CFR 23.87 Subpart E -- Replacement Housing Payments
24.401 Replacement housing payment for 180-day homeowner-occupants.
24.402 Replacement housing payment for 90-day occupants.
24.403 Additional rules governing replacement housing payments.
24.404 Replacement housing of last resort.
49 CFR 23.87 Subpart F -- Mobile Homes
24.501 Applicability.
24.502 Moving and related expenses -- mobile homes.
24.503 Replacement housing payment for 180-day mobile
homeowner-occupants.
24.504 Replacement housing payment for 90-day mobile home occupants.
24.505 Additional rules governing relocation payments to mobile home
occupants.
49 CFR 23.87 Subpart G -- Certification
24.601 Purpose.
24.602 Certification application.
24.603 Monitoring and corrective action.
Appendix A to Part 24 -- Additional Information
Appendix B to Part 24 -- Statistical Report Form
Authority: Section 213, Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 Pub. L. 91-646, 84 Stat.
1894 (42 U.S.C. 4601) as amended by the Surface Transportation and
Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17,
101 Stat. 246-256 (42 U.S.C. 4601 note); and 49 CFR 1.48(cc).
Source: 54 FR 8928, Mar. 2, 1989, unless otherwise noted.
49 CFR 23.87 Subpart A -- General
49 CFR 24.1 Purpose.
The purpose of this part is to promulgate rules to implement the
Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970, as amended (42 U.S.C. 4601 et seq.), in accordance with the
following objectives:
(a) To ensure that owners of real property to be acquired for Federal
and federally-assisted projects are treated fairly and consistently, to
encourage and expedite acquisition by agreements with such owners, to
minimize litigation and relieve congestion in the courts, and to promote
public confidence in Federal and federally-assisted land acquisition
programs;
(b) To ensure that persons displaced as a direct result of Federal or
federally-assisted projects are treated fairly, consistently, and
equitably so that such persons will not suffer disproportionate injuries
as a result of projects designed for the benefit of the public as a
whole; and
(c) To ensure that Agencies implement these regulations in a manner
that is efficient and cost effective.
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.2 Definitions.
(a) Agency. The term Agency means the Federal agency, State, State
agency, or person that acquires real property or displaces a person.
(1) Acquiring agency. The term acquiring agency means a State
agency, as defined in paragraph (a)(4) of this section, which has the
authority to acquire property by eminent domain under State law, and a
State agency or person which does not have such authority. Any Agency
or person solely acquiring property pursuant to the provisions of
24.101(a) (1), (2), (3), or (4) need not provide the assurances required
by 24.4(a)(1) or (2).
(2) Displacing agency. The term displacing agency means any Federal
agency carrying out a program or project, and any State, State agency,
or person carrying out a program or project with Federal financial
assistance, which causes a person to be a displaced person.
(3) Federal agency. The term Federal agency means any department,
Agency, or instrumentality in the executive branch of the Government,
any wholly owned Government corporation, the Architect of the Capitol,
the Federal Reserve Banks and branches thereof, and any person who has
the authority to acquire property by eminent domain under Federal law.
(4) State agency. The term State agency means any department, Agency
or instrumentality of a State or of a political subdivision of a State,
any department, Agency, or instrumentality of two or more States or of
two or more political subdivisions of a State or States, and any person
who has the authority to acquire property by eminent domain under State
law.
(b) Appraisal. The term appraisal means a written statement
independently and impartially prepared by a qualified appraiser setting
forth an opinion of defined value of an adequately described property as
of a specific date, supported by the presentation and analysis of
relevant market information.
(c) Business. The term business means any lawful activity, except a
farm operation, that is conducted:
(1) Primarily for the purchase, sale, lease and/or rental of personal
and/or real property, and/or for the manufacture, processing, and/or
marketing of products, commodities, and/or any other personal property;
or
(2) Primarily for the sale of services to the public; or
(3) Primarily for outdoor advertising display purposes, when the
display must be moved as a result of the project; or
(4) By a nonprofit organization that has established its nonprofit
status under applicable Federal or State law.
(d) Comparable replacement dwelling. The term comparable replacement
dwelling means a dwelling which is:
(1) Decent, safe and sanitary as described in paragraph (f) of this
section;
(2) Functionally equivalent to the displacement dwelling. The term
functionally equivalent means that it performs the same function,
provides the same utility, and is capable of contributing to a
comparable style of living. While a comparable replacement dwelling
need not possess every feature of the displacement dwelling, the
principal features must be present. Generally, functional equivalency
is an objective standard, reflecting the range of purposes for which the
various physical features of a dwelling may be used. However, in
determining whether a replacement dwelling is functionally equivalent to
the displacement dwelling, the Agency may consider reasonable trade-offs
for specific features when the replacement unit is equal to or better
than the displacement dwelling. (See appendix A of this part);
(3) Adequate in size to accommodate the occupants;
(4) In an area not subject to unreasonable adverse environmental
conditions;
(5) In a location generally not less desirable than the location of
the displaced person's dwelling with respect to public utilities and
commercial and public facilities, and reasonably accessible to the
person's place of employment;
(6) On a site that is typical in size for residential development
with normal site improvements, including customary landscaping. The
site need not include special improvements such as outbuildings,
swimming pools, or greenhouses. (See also 24.403(a)(2).);
(7) Currently available to the displaced person on the private
market. However, a comparable replacement dwelling for a person
receiving government housing assistance before displacement may reflect
similar government housing assistance. (See appendix A of this part.);
and
(8) Within the financial means of the displaced person.
(i) A replacement dwelling purchased by a homeowner in occupancy at
the displacement dwelling for at least 180 days prior to initiation of
negotiations (180-day homeowner) is considered to be within the
homeowner's financial means if the homeowner will receive the full price
differential as described in 24.401(c), all increased mortgage interest
costs as described at 24.401(d) and all incidental expenses as
described at 24.401(e), plus any additional amount required to be paid
under 24.404, Replacement housing of last resort.
(ii) A replacement dwelling rented by an eligible displaced person is
considered to be within his or her financial means if, after receiving
rental assistance under this part, the person's monthly rent and
estimated average monthly utility costs for the replacement dwelling do
not exceed the person's base monthly rental for the displacement
dwelling as described at 24.402(b)(2).
(iii) For a displaced person who is not eligible to receive a
replacement housing payment because of the person's failure to meet
length-of-occupancy requirements, comparable replacement rental housing
is considered to be within the person's financial means if an Agency
pays that portion of the monthly housing costs of a replacement dwelling
which exceeds 30 percent of such person's gross monthly household income
or, if receiving a welfare assistance payment from a program that
designates amounts for shelter and utilities, the total of the amounts
designated for shelter and utilities. Such rental assistance must be
paid under 24.404, Replacement housing of last resort.
(e) Contribute materially. The term contribute materially means that
during the 2 taxable years prior to the taxable year in which
displacement occurs, or during such other period as the Agency
determines to be more equitable, a business or farm operation:
(1) Had average annual gross receipts of at least $5000; or
(2) Had average annual net earnings of at least $1000; or
(3) Contributed at least 33 1/3 percent of the owner's or operator's
average annual gross income from all sources.
(4) If the application of the above criteria creates an inequity or
hardship in any given case, the Agency may approve the use of other
criteria as determined appropriate.
(f) Decent, safe, and sanitary dwelling. The term decent, safe, and
sanitary dwelling means a dwelling which meets applicable housing and
occupancy codes. However, any of the following standards which are not
met by an applicable code shall apply unless waived for good cause by
the Federal agency funding the project. The dwelling shall:
(1) Be structurally sound, weathertight, and in good repair.
(2) Contain a safe electrical wiring system adequate for lighting and
other devices.
(3) Contain a heating system capable of sustaining a healthful
temperature (of approximately 70 degrees) for a displaced person, except
in those areas where local climatic conditions do not require such a
system.
(4) Be adequate in size with respect to the number of rooms and area
of living space needed to accommodate the displaced person. There shall
be a separate, well lighted and ventilated bathroom that provides
privacy to the user and contains a sink, bathtub or shower stall, and a
toilet, all in good working order and properly connected to appropriate
sources of water and to a sewage drainage system. In the case of a
housekeeping dwelling, there shall be a kitchen area that contains a
fully usable sink, properly connected to potable hot and cold water and
to a sewage drainage system, and adequate space and utility service
connections for a stove and refrigerator.
(5) Contains unobstructed egress to safe, open space at ground level.
If the replacement dwelling unit is on the second story or above, with
access directly from or through a common corridor, the common corridor
must have at least two means of egress.
(6) For a displaced person who is handicapped, be free of any
barriers which would preclude reasonable ingress, egress, or use of the
dwelling by such displaced person.
(g) Displaced person -- (1) General. The term displaced person means
any person who moves from the real property or moves his or her personal
property from the real property: (This includes a person who occupies
the real property prior to its acquisition, but who does not meet the
length of occupancy requirements of the Uniform Act as described at
24.401(a) and 24.402(a)):
(i) As a direct result of a written notice of intent to acquire, the
initiation of negotiations for, or the acquisition of, such real
property in whole or in part for a project.
(ii) As a direct result of rehabilitation or demolition for a
project; or
(iii) As a direct result of a written notice of intent to acquire, or
the acquisition, rehabilitation or demolition of, in whole or in part,
other real property on which the person conducts a business or farm
operation, for a project. However, eligibility for such person under
this paragraph applies only for purposes of obtaining relocation
assistance advisory services under 24.205(c), and moving expenses under
24.301, 24.302 or 24.303.
(2) Persons not displaced. The following is a nonexclusive listing
of persons who do not qualify as displaced persons under this part:
(i) A person who moves before the initiation of negotiations (see
also 24.403(d)), unless the Agency determines that the person was
displaced as a direct result of the program or project; or
(ii) A person who initially enters into occupancy of the property
after the date of its acquisition for the project; or
(iii) A person who has occupied the property for the purpose of
obtaining assistance under the Uniform Act;
(iv) A person who is not required to relocate permanently as a direct
result of a project. Such determination shall be made by the Agency in
accordance with any guidelines established by the Federal agency funding
the project (see Also appendix A of this part); or
(v) An owner-occupant who moves as a result of an acquisition as
described at 24.101(a) (1) and (2) , or as a result of the
rehabilitation or demolition of the real property. (However, the
displacement of a tenant as a direct result of any acquisition,
rehabilitation or demolition for a Federal or federally-assisted project
is subject to this part.); or
(vi) A person whom the Agency determines is not displaced as a direct
result of a partial acquisition; or
(vii) A person who, after receiving a notice of relocation
eligibility (described at 24.203(b)), is notified in writing that he or
she will not be displaced for a project. Such notice shall not be
issued unless the person has not moved and the Agency agrees to
reimburse the person for any expenses incurred to satisfy any binding
contractual relocation obligations entered into after the effective date
of the notice of relocation eligibility; or
(viii) An owner-occupant who voluntarily conveys his or her property,
as described at 24.101(a) (1) and (2), after being informed in writing
that if a mutually satisfactory agreement on terms of the conveyance
cannot be reached, the Agency will not acquire the property. In such
cases, however, any resulting displacement of a tenant is subject to the
regulations in this part; or
(ix) A person who retains the right of use and occupancy of the real
property for life following its acquisition by the Agency; or
(x) A person who retains the right of use and occupancy of the real
property for a fixed term after its acquisition by the Department of
Interior under Pub. L. 93-477 or Pub. L. 93-303; or
(xi) A person who is determined to be in unlawful occupancy prior to
the initiation of negotiations (see paragraph (y) of this section), or a
person who has been evicted for cause, under applicable law, as provided
for in 24.206.
(h) Dwelling. The term dwelling means the place of permanent or
customary and usual residence of a person, according to local custom or
law, including a single family house; a single family unit in a
two-family, multi-family, or multi-purpose property; a unit of a
condominium or cooperative housing project; a non-housekeeping unit; a
mobile home; or any other residential unit.
(i) Farm operation. The term farm operation means any activity
conducted solely or primarily for the production of one or more
agricultural products or commodities, including timber, for sale or home
use, and customarily producing such products or commodities in
sufficient quantity to be capable of contributing materially to the
operator's support.
(j) Federal financial assistance. The term Federal financial
assistance means a grant, loan, or contribution provided by the United
States, except any Federal guarantee or insurance and any interest
reduction payment to an individual in connection with the purchase and
occupancy of a residence by that individual.
(k) Initiation of negotiations. Unless a different action is
specified in applicable Federal program regulations, the term initiation
of negotiations means the following:
(1) Whenever the displacement results from the acquisition of the
real property by a Federal agency or State agency, the initiation of
negotiations means the delivery of the initial written offer of just
compensation by the Agency to the owner or the owner's representative to
purchase the real property for the project. However, if the Federal
agency or State agency issues a notice of its intent to acquire the real
property, and a person moves after that notice, but before de1ivery to
the initial written purchase offer, the initiation of negotiations means
the actual move of the person from the property.
(2) Whenever the displacement is caused by rehabilitation, demolition
or privately undertaken acquisition of the real property (and there is
no related acquisition by a Federal agency or a State agency), the
initiation of negotiations means the notice to the person that he or she
will be displaced by the project or, if there is no notice, the actual
move of the person from the property.
(3) In the case of a permanent relocation to protect the public
health and welfare, under the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (Pub. L. 96-510, or Superfund)
the initiation of negotiations means the formal announcement of such
relocation or the Federal or federally-coordinated health advisory where
the Federal Government later decides to conduct a permanent relocation.
(l) Lead agency. The term lead agency means the Department of
Transportation acting through the Federal Highway Administration.
(m) Mortgage. The term mortgage means such classes of liens as are
commonly given to secure advances on, or the unpaid purchase price of,
real property, under the laws of the State in which the real property is
located, together with the credit instruments, if any, secured thereby.
(n) Nonprofit organization. The term nonprofit organization means an
organization that is incorporated under the applicable laws of a State
as a non-profit organization, and exempt from paying Federal income
taxes under section 501 of the Internal Revenue Code (26 U.S.C. 501).
(o) Notice of intent to acquire or notice of eligibility for
relocation assistance. Written notice furnished to a person to be
displaced, including those to be displaced by rehabilitation or
demolition activities from property acquired prior to the commitment of
Federal financial assistance to the activity, that establishes
eligibility for relocation benefits prior to the initiation of
negotiation and/or prior to the commitment of Federal financial
assistance.
(p) Owner of a dwelling. A person is considered to have met the
requirement to own a dwelling if the person purchases or holds any of
the following interests in real property;
(1) Fee title, a life estate, a land contract, a 99-year lease, or a
lease including any options for extension with at least 50 years to run
from the date of acquisition; or
(2) An interest in a cooperative housing project which includes the
right to occupy a dwelling; or
(3) A contract to purchase any of the interests or estates described
in paragraphs (p) (1) or (2) of this section, or
(4) Any other interest, including a partial interest, which in the
judgment of the Agency warrants consideration as ownership.
(q) Person. The term person means any individual, family,
partnership, corporation, or association.
(r) Program or project. The phrase program or project means any
activity or series of activities undertaken by a Federal agency or with
Federal financial assistance received or anticipated in any phase of an
undertaking in accordance with the Federal funding agency guidelines.
(s) Salvage value. The term salvage value means the probable sale
price of an item, if offered for sale on the condition that it will be
removed from the property at the buyer's expense, allowing a reasonable
period of time to find a person buying with knowledge of the uses and
purposes for which it is adaptable and capable of being used, including
separate use of serviceable components and scrap when there is no
reasonable prospect of sale except on that basis.
(t) Small business. A business having at least one, but not more
than 500 employees working at the site being acquired or displaced by a
program or project.
(u) State. Any of the several States of the United States or the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, the Trust Territories of the Pacific
Islands or a political subdivision of any of these jurisdictions.
(v) Tenant. The term tenant means a person who has the temporary use
and occupancy of real property owned by another.
(w) Uneconomic remnant. The term uneconomic remnant means a parcel
of real property in which the owner is left with an interest after the
partial acquisition of the owner's property, and which the acquiring
agency has determined has little or no value or utility to the owner.
(x) Uniform Act. The term Uniform Act means the Uniform Relocation
Assistance and Real Property Acquisition Policy Act of 1970 (84 Stat.
1894; 42 U.S.C. 4601 et seq.; Pub. L. 91-646), and amendments thereto.
(y) Unlawful occupancy. A person is considered to be in unlawful
occupancy if the person has been ordered to move by a court of competent
jurisdiction prior to the initiation of negotiations or is determined by
the Agency to be a squatter who is occupying the real property without
the permission of the owner and otherwise has no legal right to occupy
the property under State law. A displacing agency may, at its
discretion, consider such a squatter to be in lawful occupancy.
(z) Utility costs. The term utility costs means expenses for heat,
lights, water and sewer.
(aa) Utility facility. The term utility facility means any electric,
gas, water, steampower, or materials transmission or distribution
system; any transportation system; any communications system,
including cable television; and any fixtures, equipment, or other
property associated with the operation, maintenance, or repair of any
such system. A utility facility may be publicly, privately, or
cooperatively owned.
(bb) Utility relocation. The term utility relocation means the
adjustment of a utility facility required by the program or project
undertaken by the displacing agency. It includes removing and
reinstalling the facility, including necessary temporary facilities;
acquiring necessary right-of-way on new location; moving, rearranging
or changing the type of existing facilities; and taking any necessary
safety and protective measures. It shall also mean constructing a
replacement facility that has the functional equivalency of the existing
facility and is necessary for the continued operation of the utility
service, the project economy, or sequence of project construction.
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.3 No duplication of payments.
No person shall receive any payment under this part if that person
receives a payment under Federal, State, or local law which is
determined by the Agency to have the same purpose and effect as such
payment under this part. (See appendix A of this part, 24.3.)
49 CFR 24.4 Assurances, monitoring and corrective action.
(a) Assurances -- (1) Before a Federal agency may approve any grant
to, or contract, or agreement with, a State agency under which Federal
financial assistance will be made available for a project which results
in real property acquisition or displacement that is subject to the
Uniform Act, the State agency must provide appropriate assurances that
it will comply with the Uniform Act and this part. A displacing
agency's assurances shall be in accordance with section 210 of the
Uniform Act. An acquiring agency's assurances shall be in accordance
with section 305 of the Uniform Act and must contain specific reference
to any State law which the Agency believes provides an exception to
section 301 or 302 of the Uniform Act. If, in the judgment of the
Federal agency, Uniform Act compliance will be served, a State agency
may provide these assurances at one time to cover all subsequent
federally-assisted programs or projects. An Agency which both acquires
real property and displaces persons may combine its section 210 and
section 305 assurances in one document.
(2) If a Federal agency or State agency provides Federal financial
assistance to a ''person'' causing displacement, such Federal or State
agency is responsible for ensuring compliance with the requirements of
this part, notwithstanding the person's contractual obligation to the
grantee to comply.
(3) As an alternative to the assurance requirement described in
paragraph (a)(1) of this section, a Federal agency may provide Federal
financial assistance to a State agency after it has accepted a
certification by such State agency in accordance with the requirements
in subpart G of this part.
(b) Monitoring and corrective action. The Federal agency will
monitor compliance with this part, and the State agency shall take
whatever corrective action is necessary to comply with the Uniform Act
and this part. The Federal agency may also apply sanctions in
accordance with applicable program regulations. (Also see 24.603,
subpart G.)
(c) Prevention of fraud, waste, and mismanagement. The Agency shall
take appropriate measures to carry out this part in a manner that
minimizes fraud, waste, and mismanagement.
49 CFR 24.5 Manner of notices.
Each notice which the Agency is required to provide to a property
owner or occupant under this part, except the notice described at
24.102(b), shall be personally served or sent by certified or registered
first-class mail, return receipt requested, and documented in Agency
files. Each notice shall be written in plain, understandable language.
Persons who are unable to read and understand the notice must be
provided with appropriate translation and counseling. Each notice shall
indicate the name and telephone number of a person who may be contacted
for answers to questions or other needed help.
49 CFR 24.6 Administration of jointly-funded projects.
Whenever two or more Federal agencies provide financial assistance to
an Agency or Agencies, other than a Federal agency, to carry out
functionally or geographically related activities which will result in
the acquisition of property or the displacement of a person, the Federal
agencies may by agreement designate one such agency as the cognizant
Federal agency. In the unlikely event that agreement among the Agencies
cannot be reached as to which agency shall be the cognizant Federal
agency, then the lead agency shall designate one of such agencies to
assume the cognizant role. At a minimum, the agreement shall set forth
the federally assisted activities which are subject to its terms and
cite any policies and procedures, in addition to this part, that are
applicable to the activities under the agreement. Under the agreement,
the cognizant Federal agency shall assure that the project is in
compliance with the provisions of the Uniform Act and this part. All
federally assisted activities under the agreement shall be deemed a
project for the purposes of this part.
49 CFR 24.7 Federal agency waiver of regulations.
The Federal agency funding the project may waive any requirement in
this part not required by law if it determines that the waiver does not
reduce any assistance or protection provided to an owner or displaced
person under this part. Any request for a waiver shall be justified on
a case-by-case basis.
49 CFR 24.8 Compliance with other laws and regulations.
The implementation of this part must be in compliance with other
applicable Federal laws and implementing regulations, including, but not
limited to, the following:
(a) Section I of the Civil Rights Act of 1866 (42 U.S.C. 1982 et
seq.).
(b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.).
(c) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et
seq.), as amended.
(d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(e) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 790 et
seq.).
(f) The Flood Disaster Protection Act of 1973 (Pub. L. 93-234).
(g) The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).
(h) Executive Order 11063 -- Equal Opportunity and Housing, as
amended by Executive Order l2259.
(i) Executive Order 11246 -- Equal Employment Opportunity.
(j) Executive Order 11625 -- Minority Business Enterprise.
(k) Executive Orders 11988, Floodplain Management, and 11990,
Protection of Wetlands.
(l) Executive Order 12250 -- Leadership and Coordination of
Non-Discrimination Laws.
(m) Executive Order 12259 -- Leadership and Coordination of Fair
Housing in Federal Programs.
(n) Executive Order 12630 -- Governmental Actions and Interference
with Constitutionally Protected Property Rights.
49 CFR 24.9 Recordkeeping and reports.
(a) Records. The Agency shall maintain adequate records of its
acquisition and displacement activities in sufficient detail to
demonstrate compliance with this part. These records shall be retained
for at least 3 years after each owner of a property and each person
displaced from the property receives the final payment to which he or
she is entitled under this part, or in accordance with the applicable
regulations of the Federal funding agency, whichever is later.
(b) Confidentiality of records. Records maintained by an Agency in
accordance with this part are confidential regarding their use as public
information, unless applicable law provides otherwise.
(c) Reports. The Agency shall submit a report of its real property
acquisition and displacement activities under this part if required by
the Federal agency funding the project. A report will not be required
more frequently than every 3 years, or as the Uniform Act provides,
unless the Federal funding agency shows good cause. The report shall be
prepared and submitted in the format contained in appendix B of this
part.
49 CFR 24.10 Appeals.
(a) General. The Agency shall promptly review appeals in accordance
with the requirements of applicable law and this part.
(b) Actions which may be appealed. Any aggrieved person may file a
written appeal with the Agency in any case in which the person believes
that the Agency has failed to properly consider the person's application
for assistance under this part. Such assistance may include, but is not
limited to, the person's eligibility for, or the amount of, a payment
required under 24.106 or 24.107, or a relocation payment required
under this part. The Agency shall consider a written appeal regardless
of form.
(c) Time limit for initiating appeal. The Agency may set a
reasonable time limit for a person to file an appeal. The time limit
shall not be less than 60 days after the person receives written
notification of the Agency's determination on the person's claim.
(d) Right to representation. A person has a right to be represented
by legal counsel or other representative in connection with his or her
appeal, but solely at the person's own expense.
(e) Review of files by person making appeal. The Agency shall permit
a person to inspect and copy all materials pertinent to his or her
appeal, except materials which are classified as confidential by the
Agency. The Agency may, however, impose reasonable conditions on the
person's right to inspect, consistent with applicable laws.
(f) Scope of review of appeal. In deciding an appeal, the Agency
shall consider all pertinent justification and other material submitted
by the person, and all other available information that is needed to
ensure a fair and full review of the appeal.
(g) Determination and notification after appeal. Promptly after
receipt of all information submitted by a person in support of an
appeal, the Agency shall make a written determination on the appeal,
including an explanation of the basis on which the decision was made,
and furnish the person a copy. If the full relief requested is not
granted, the Agency shall advise the person of his or her right to seek
judicial review.
(h) Agency official to review appeal. The Agency official conducting
the review of the appeal shall be either the head of the Agency or his
or her authorized designee. However, the official shall not have been
directly involved in the action appealed.
49 CFR 24.10 Subpart B -- Real Property Acquisition
49 CFR 24.101 Applicability of acquisition requirements.
(a) General. The requirements of this subpart apply to any
acquisition of real property for a Federal program or project, and to
programs and projects where there is Federal financial assistance in any
part of project costs except for:
(1) Voluntary transactions that meet all of the following conditions:
(i) No specific site or property needs to be acquired, although the
Agency may limit its search for alternative sites to a general
geographic area. Where an Agency wishes to purchase more than one site
within a geographic area on this basis, all owners are to be treated
similarly.
(ii) The property to be acquired is not part of an intended, planned,
or designated project area where all or substantially all of the
property within the area is to be acquired within specific time limits.
(iii) The Agency will not acquire the property in the event
negotiations fail to result in an amicable agreement, and the owner is
so informed in writing.
(iv) The Agency will inform the owner of what it believes to be the
fair market value of the property.
(2) Acquisitions for programs or projects undertaken by an Agency or
person that receives Federal financial assistance but does not have
authority to acquire property by eminent domain, provided that such
Agency or person shall:
(i) Prior to making an offer for the property, clearly advise the
owner that it is unable to acquire the property in the event
negotiations fail to result in an amicable agreement; and
(ii) Inform the owner of what it believes to be fair market value of
the property.
(3) The acquisition of real property from a Federal agency, State, or
State agency, if the Agency desiring to make the purchase does not have
authority to acquire the property through condemnation.
(4) The acquisition of real property by a cooperative from a person
who, as a condition of membership in the cooperative, has agreed to
provide without charge any real property that is needed by the
cooperative.
(b) Less-than-full-fee interest in real property. In addition to fee
simple title, the provisions of this subpart apply when acquiring fee
title subject to retention of a life estate or a life use; to
acquisition by leasing where the lease term, including option(s) for
extension, is 50 years or more; and to the acquisition of permanent
easements. (See appendix A of this part, 24.101(b).)
(c) Federally-assisted projects. For projects receiving Federal
financial assistance, the provisions of 24.102, 24.103, 24.104, and
24.105 apply to the greatest extent practicable under State law. (See
24.4(a).)
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.102 Basic acquisition policies.
(a) Expeditious acquisition. The Agency shall make every reasonable
effort to acquire the real property expeditiously by negotiation.
(b) Notice to owner. As soon as feasible, the owner shall be
notified of the Agency's interest in acquiring the real property and the
basic protections, including the agency's obligation to secure an
appraisal, provided to the owner by law and this part. (See also
24.203.)
(c) Appraisal, waiver thereof, and invitation to owner. (1) Before
the initiation of negotiations the real property to be acquired shall be
appraised, except as provided in 24.102(c)(2), and the owner, or the
owner's designated representative, shall be given an opportunity to
accompany the appraiser during the appraiser's inspection of the
property.
(2) An appraisal is not required if the owner is donating the
property and releases the Agency from this obligation, or the Agency
determines that an appraisal is unnecessary because the valuation
problem is uncomplicated and the fair market value is estimated at
$2,500 or less, based on a review of available data.
(d) Establishment and offer of just compensation. Before the
initiation of negotiations, the Agency shall establish an amount which
it believes is just compensation for the real property. The amount
shall not be less than the approved appraisal of the fair market value
of the property, taking into account the value of allowable damages or
benefits to any remaining property. (See also 24.104.) Promptly
thereafter, the Agency shall make a written offer to the owner to
acquire the property for the full amount believed to be just
compensation.
(e) Summary statement. Along with the initial written purchase
offer, the owner shall be given a written statement of the basis for the
offer of just compensation, which shall include:
(1) A statement of the amount offered as just compensation. In the
case of a partial acquisition, the compensation for the real property to
be acquired and the compensation for damages, if any, to the remaining
real property shall be separately stated.
(2) A description and location identification of the real property
and the interest in the real property to be acquired.
(3) An identification of the buildings, structures, and other
improvements (including removable building equipment and trade fixtures)
which are considered to be part of the real property for which the offer
of just compensation is made. Where appropriate, the statement shall
identify any separately held ownership interest in the property, e.g., a
tenant-owned improvement, and indicate that such interest is not covered
by the offer.
(f) Basic negotiation procedures. The Agency shall make reasonable
efforts to contact the owner or the owner's representative and discuss
its offer to purchase the property, including the basis for the offer of
just compensation; and, explain its acquisition policies and
procedures, including its payment of incidental expenses in accordance
with 24.106. The owner shall be given reasonable opportunity to
consider the offer and present material which the owner believes is
relevant to determining the value of the property and to suggest
modification in the proposed terms and conditions of the purchase. The
Agency shall consider the owner's presentation.
(g) Updating offer of just compensation. If the information
presented by the owner, or a material change in the character or
condition of the property, indicates the need for new appraisal
information, or if a significant delay has occurred since the time of
the appraisal(s) of the property, the Agency shall have the appraisal(s)
updated or obtain a new appraisal(s). If the latest appraisal
information indicates that a change in the purchase offer is warranted,
the Agency shall promptly reestablish just compensation and offer that
amount to the owner in writing.
(h) Coercive action. The Agency shall not advance the time of
condemnation, or defer negotiations or condemnation or the deposit of
funds with the court, or take any other coercive action in order to
induce an agreement on the price to be paid for the property.
(i) Administrative settlement. The purchase price for the property
may exceed the amount offered as just compensation when reasonable
efforts to negotiate an agreement at that amount have failed and an
authorized Agency official approves such administrative settlement as
being reasonable, prudent, and in the public interest. When Federal
funds pay for or participate in acquisition costs, a written
justification shall be prepared which indicates that available
information (e.g., appraisals, recent court awards, estimated trial
costs, or valuation problems) supports such a settlement.
(j) Payment before taking possession. Before requiring the owner to
surrender possession of the real property, the Agency shall pay the
agreed purchase price to the owner, or in the case of a condemnation,
deposit with the court, for the benefit of the owner, an amount not less
than the Agency's approved appraisal of the fair market value of such
property, or the court award of compensation in the condemnation
proceeding for the property. In exceptional circumstances, with the
prior approval of the owner, the Agency may obtain a right-of-entry for
construction purposes before making payment available to an owner.
(k) Uneconomic remnant. If the acquisition of only a portion of a
property would leave the owner with an uneconomic remnant, the Agency
shall offer to acquire the uneconomic remnant along with the portion of
the property needed for the project. (See 24.2(w).)
(l) Inverse condemnation. If the Agency intends to acquire any
interest in real property by exercise of the power of eminent domain, it
shall institute formal condemnation proceedings and not intentionally
make it necessary for the owner to institute legal proceedings to prove
the fact of the taking of the real property.
(m) Fair rental. If the Agency permits a former owner or tenant to
occupy the real property after acquisition for a short term or a period
subject to termination by the Agency on short notice, the rent shall not
exceed the fair market rent for such occupancy.
49 CFR 24.103 Criteria for appraisals.
(a) Standards of appraisal. The format and level of documentation
for an appraisal depend on the complexity of the appraisal problem. The
Agency shall develop minimum standards for appraisals consistent with
established and commonly accepted appraisal practice for those
acquisitions which, by virtue of their low value or simplicity, do not
require the in-depth analysis and presentation necessary in a detailed
appraisal. A detailed appraisal shall be prepared for all other
acquisitions. A detailed appraisal shall reflect nationally recognized
appraisal standards, including, to the extent appropriate, the Uniform
Appraisal Standards for Federal Land Acquisition. An appraisal must
contain sufficient documentation, including valuation data and the
appraiser's analysis of that data, to support his or her opinion of
value. At a minimum, a detailed appraisal shall contain the following
items:
(1) The purpose and/or the function of the appraisal, a definition of
the estate being appraised, and a statement of the assumptions and
limiting conditions affecting the appraisal.
(2) An adequate description of the physical characteristics of the
property being appraised (and, in the case of a partial acquisition, an
adequate description of the remaining property), a statement of the
known and observed encumbrances, if any, title information, location,
zoning, present use, an analysis of highest and best use, and at least a
5-year sales history of the property.
(3) All relevant and reliable approaches to value consistent with
commonly accepted professional appraisal practices. When sufficient
market sales data are available to reliably support the fair market
value for the specific appraisal problem encountered, the Agency, at its
discretion, may require only the market approach. If more than one
approach is utilized, there shall be an analysis and reconciliation of
approaches to value that are sufficient to support the appraiser's
opinion of value.
(4) A description of comparable sales, including a description of all
relevant physical, legal, and economic factors such as parties to the
transaction, source and method of financing, and verification by a party
involved in the transaction.
(5) A statement of the value of the real property to be acquired and,
for a partial acquisition, a statement of the value of the damages and
benefits, if any, to the remaining real property, where appropriate.
(6) The effective date of valuation, date of appraisal, signature,
and certification of the appraiser.
(b) Influence of the project on just compensation. To the extent
permitted by applicable law, the appraiser shall disregard any decrease
or increase in the fair market value of the real property caused by the
project for which the property is to be acquired, or by the likelihood
that the property would be acquired for the project, other than that due
to physical deterioration within the reasonable control of the owner.
(c) Owner retention of improvements. If the owner of a real property
improvement is permitted to retain it for removal from the project site,
the amount to be offered for the interest in the real property to be
acquired shall be not less than the difference between the amount
determined to be just compensation for the owner's entire interest in
the real property and the salvage value (defined at 24.2(s)) of the
retained improvement.
(d) Qualifications of appraisers. The Agency shall establish
criteria for determining the minimum qualifications of appraisers.
Appraiser qualifications shall be consistent with the level of
difficulty of the appraisal assignment. The Agency shall review the
experience, education, training, and other qualifications of appraisers,
including review appraisers, and utilize only those determined to be
qualified.
(e) Conflict of interest. No appraiser or review appraiser shall
have any interest, direct or indirect, in the real property being
appraised for the Agency that would in any way conflict with the
preparation or review of the appraisal. Compensation for making an
appraisal shall not be based on the amount of the valuation. No
appraiser shall act as a negotiator for real property which that person
has appraised, except that the Agency may permit the same person to both
appraise and negotiate an acquisition where the value of the acquisition
is $2,500, or less.
49 CFR 24.104 Review of appraisals.
The Agency shall have an appraisal review process and, at a minimum:
(a) A qualified reviewing appraiser shall examine all appraisals to
assure that they meet applicable appraisal requirements and shall, prior
to acceptance, seek necessary corrections or revisions.
(b) If the reviewing appraiser is unable to approve or recommend
approval of an appraisal as an adequate basis for the establishment of
the offer of just compensation, and it is determined that it is not
practical to obtain an additional appraisal, the reviewing appraiser may
develop appraisal documentation in accordance with 24.103 to support an
approved or recommended value.
(c) The review appraiser's certification of the recommended or
approved value of the property shall be set forth in a signed statement
which identifies the appraisal reports reviewed and explains the basis
for such recommendation or approval. Any damages or benefits to any
remaining property shall also be identified in the statement.
49 CFR 24.105 Acquisition of tenant-owned improvements.
(a) Acquisition of improvements. When acquiring any interest in real
property, the Agency shall offer to acquire at least an equal interest
in all buildings, structures, or other improvements located upon the
real property to be acquired, which it requires to be removed or which
it determines will be adversely affected by the use to which such real
property will be put. This shall include any improvement of a
tenant-owner who has the right or obligation to remove the improvement
at the expiration of the lease term.
(b) Improvements considered to be real property. Any building,
structure, or other improvement, which would be considered to be real
property if owned by the owner of the real property on which it is
located, shall be considered to be real property for purposes of this
subpart.
(c) Appraisal and establishment of just compensation for tenant-owned
improvements. Just compensation for a tenant-owned improvement is the
amount which the improvement contributes to the fair market value of the
whole property or its salvage value, whichever is greater. (Salvage
value is defined at 24.2(s).)
(d) Special conditions. No payment shall be made to a tenant-owner
for any real property improvement unless:
(1) The tenant-owner, in consideration for the payment, assigns,
transfers, and releases to the Agency all of the tenant-owner's right,
title, and interest in the improvement; and
(2) The owner of the real property on which the improvement is
located disclaims all interest in the improvement; and
(3) The payment does not result in the duplication of any
compensation otherwise authorized by law.
(e) Alternative compensation. Nothing in this subpart shall be
construed to deprive the tenant-owner of any right to reject payment
under this subpart and to obtain payment for such property interests in
accordance with other applicable law.
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.106 Expenses incidental to transfer of title to the Agency.
(a) The owner of the real property shall be reimbursed for all
reasonable expenses the owner necessarily incurred for:
(1) Recording fees, transfer taxes, documentary stamps, evidence of
title, boundary surveys, legal descriptions of the real property, and
similar expenses incidental to conveying the real property to the
Agency. However, the Agency is not required to pay costs solely
required to perfect the owner's title to the real property; and
(2) Penalty costs and other charges for prepayment of any preexisting
recorded mortgage entered into in good faith encumbering the real
property; and
(3) The pro rata portion of any prepaid real property taxes which are
allocable to the period after the Agency obtains title to the property
or effective possession of it, whichever is earlier.
(b) Whenever feasible, the Agency shall pay these costs directly so
that the owner will not have to pay such costs and then seek
reimbursement from the Agency.
49 CFR 24.107 Certain litigation expenses.
The owner of the real property shall be reimbursed for any reasonable
expenses, including reasonable attorney, appraisal, and engineering
fees, which the owner actually incurred because of a condemnation
proceeding, if:
(a) The final judgment of the court is that the Agency cannot acquire
the real property by condemnation; or
(b) The condemnation proceeding is abandoned by the Agency other than
under an agreed-upon settlement; or
(c) The court having jurisdiction renders a judgment in favor of the
owner in an inverse condemnation proceeding or the Agency effects a
settlement of such proceeding.
49 CFR 24.108 Donations.
An owner whose real property is being acquired may, after being fully
informed by the Agency of the right to receive just compensation for
such property, donate such property or any part thereof, any interest
therein, or any compensation paid therefor, to the Agency as such owner
shall determine. The Agency is responsible for assuring that an
appraisal of the real property is obtained unless the owner releases the
Agency from such obligation, except as provided in 24.102(c)(2).
49 CFR 24.108 Subpart C -- General Relocation Requirements
49 CFR 24.201 Purpose.
This subpart prescribes general requirements governing the provision
of relocation payments and other relocation assistance in this part.
49 CFR 24.202 Applicability.
These requirements apply to the relocation of any displaced person as
defined at 24.2(g).
49 CFR 24.203 Relocation notices.
(a) General information notice. As soon as feasible, a person
scheduled to be displaced shall be furnished with a general written
description of the displacing agency's relocation program which does at
least the following:
(1) Informs the person that he or she may be displaced for the
project and generally describes the relocation payment(s) for which the
person may be eligible, the basic conditions of eligibility, and the
procedures for obtaining the payment(s).
(2) Informs the person that he or she will be given reasonable
relocation advisory services, including referrals to replacement
properties, help in filing payment claims, and other necessary
assistance to help the person successfully relocate.
(3) Informs the person that he or she will not be required to move
without at least 90 days' advance written notice (see paragraph (c) of
this section), and informs any person to be displaced from a dwelling
that he or she cannot be required to move permanently unless at least
one comparable replacement dwelling has been made available.
(4) Describes the person's right to appeal the Agency's determination
as to a person's application for assistance for which a person may be
eligible under this part.
(b) Notice of relocation eligibility. Eligibility for relocation
assistance shall begin on the date of initiation of negotiations
(defined in 24.2(k)) for the occupied property. When this occurs, the
Agency shall promptly notify all occupants in writing of their
eligibility for applicable relocation assistance.
(c) Ninety-day notice -- (1) General. No lawful occupant shall be
required to move unless he or she has received at least 90 days advance
written notice of the earliest date by which he or she may be required
to move.
(2) Timing of notice. The displacing agency may issue the notice 90
days before it expects the person to be displaced or earlier.
(3) Content of notice. The 90-day notice shall either state a
specific date as the earliest date by which the occupant may be required
to move, or state that the occupant will receive a further notice
indicating, at least 30 days in advance, the specific date by which he
or she must move. If the 90-day notice is issued before a comparable
replacement dwelling is made available, the notice must state clearly
that the occupant will not have to move earlier than 90 days after such
a dwelling is made available. (See 24.204(a).)
(4) Urgent need. In unusual circumstances, an occupant may be
required to vacate the property on less than 90 days advance written
notice if the displacing agency determines that a 90-day notice is
impracticable, such as when the person's continued occupancy of the
property would constitute a substantial danger to health or safety. A
copy of the Agency's determination shall be included in the applicable
case file.
49 CFR 24.204 Availability of comparable replacement dwelling before
displacement.
(a) General. No person to be displaced shall be required to move
from his or her dwelling unless at least one comparable replacement
dwelling (defined at 24.2(d)) has been made available to the person.
Where possible, three or more comparable replacement dwellings shall be
made available. A comparable replacement dwelling will be considered to
have been made available to a person, if:
(1) The person is informed of its location; and
(2) The person has sufficient time to negotiate and enter into a
purchase agreement or lease for the property; and
(3) Subject to reasonable safeguards, the person is assured of
receiving the relocation assistance and acquisition payment to which the
person is entitled in sufficient time to complete the purchase or lease
of the property.
(b) Circumstances permitting waiver. The Federal agency funding the
project may grant a waiver of the policy in paragraph (a) of this
section in any case where it is demonstrated that a person must move
because of:
(1) A major disaster as defined in section 102(c) of the Disaster
Relief Act of 1974 (42 U.S.C. 5121); or
(2) A presidentially declared national emergency; or
(3) Another emergency which requires immediate vacation of the real
property, such as when continued occupancy of the displacement dwelling
constitutes a substantial danger to the health or safety of the
occupants or the public.
(c) Basic conditions of emergency move. Whenever a person is
required to relocate for a temporary period because of an emergency as
described in paragraph (b) of this section, the Agency shall:
(1) Take whatever steps are necessary to assure that the person is
temporarily relocated to a decent, safe, and sanitary dwelling; and
(2) Pay the actual reasonable out-of-pocket moving expenses and any
reasonable increase in rent and utility costs incurred in connection
with the temporary relocation; and
(3) Make available to the displaced person as soon as feasible, at
least one comparable replacement dwelling. (For purposes of filing a
claim and meeting the eligibility requirements for a relocation payment,
the date of displacement is the date the person moves from the
temporarily-occupied dwelling.)
49 CFR 24.205 Relocation planning, advisory services, and coordination.
(a) Relocation planning. During the early stages of development,
Federal and Federal-aid programs or projects shall be planned in such a
manner that the problems associated with the displacement of
individuals, families, businesses, farms, and nonprofit organizations
are recognized and solutions are developed to minimize the adverse
impacts of displacement. Such planning, where appropriate, shall
precede any action by an Agency which will cause displacement, and
should be scoped to the complexity and nature of the anticipated
displacing activity including an evaluation of program resources
available to carry out timely and orderly relocations. Planning may
involve a relocation survey or study which may include the following:
(1) An estimate of the number of households to be displaced including
information such as owner/tenant status, estimated value and rental
rates of properties to be acquired, family characteristics, and special
consideration of the impacts on minorities, the elderly, large families,
and the handicapped when applicable.
(2) An estimate of the number of comparable replacement dwellings in
the area (including price ranges and rental rates) that are expected to
be available to fulfill the needs of those households displaced. When
an adequate supply of comparable housing is not expected to be
available, consideration of housing of last resort actions should be
instituted.
(3) An estimate of the number, type and size of the businesses,
farms, and nonprofit organizations to be displaced and the approximate
number of employees that may be affected.
(4) Consideration of any special relocation advisory services that
may be necessary from the displacing agency and other cooperating
agencies.
(b) Loans for planning and preliminary expenses. In the event that
an Agency elects to consider using the duplicative provision in section
215 of the Uniform Act which permits the use of project funds for loans
to cover planning and other preliminary expenses for the development of
additional housing, the lead agency will establish criteria and
procedures for such use upon the request of the Federal agency funding
the program or project.
(c) Relocation assistance advisory services -- (1) General. The
Agency shall carry out a relocation assistance advisory program which
satisfies the requirements of Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.), Title VIII of the Civil Rights Act of 1968
(42 U.S.C. 3601 et seq.), and Executive Order 11063 (27 FR 11527,
November 24, 1962), and offers the services described in paragraph
(c)(2) of this section. If the Agency determines that a person
occupying property adjacent to the real property acquired for the
project is caused substantial economic injury because of such
acquisition, it may offer advisory services to such person.
(2) Services to be provided. The advisory program shall include such
measures, facilities, and services as may be necessary or appropriate in
order to:
(i) Determine the relocation needs and preferences of each person to
be displaced and explain the relocation payments and other assistance
for which the person may be eligible, the related eligibility
requirements, and the procedures for obtaining such assistance. This
shall include a personal interview with each person.
(ii) Provide current and continuing information on the availability,
purchase prices, and rental costs of comparable replacement dwellings,
and explain that the person cannot be required to move unless at least
one comparable replacement dwelling is made available as set forth in
24.204(a).
(A) As soon as feasible, the Agency shall inform the person in
writing of the specific comparable replacement dwelling and the price or
rent used for establishing the upper limit of the replacement housing
payment (see 24.403 (a) and (b)) and the basis for the determination,
so that the person is aware of the maximum replacement housing payment
for which he or she may qualify.
(B) Where feasible, housing shall be inspected prior to being made
available to assure that it meets applicable standards. (See 24.2 (d)
and (f).) If such an inspection is not made, the person to be displaced
shall be notified that a replacement housing payment may not be made
unless the replacement dwelling is subsequently inspected and determined
to be decent, safe, and sanitary.
(C) Whenever possible, minority persons shall be given reasonable
opportunities to relocate to decent, safe, and sanitary replacement
dwellings, not located in an area of minority concentration, that are
within their financial means. This policy, however, does not require an
Agency to provide a person a larger payment than is necessary to enable
a person to relocate to a comparable replacement dwelling.
(D) All persons, especially the elderly and handicapped, shall be
offered transportation to inspect housing to which they are referred.
(iii) Provide current and continuing information on the availability,
purchase prices, and rental costs of suitable commercial and farm
properties and locations. Assist any person displaced from a business
or farm operation to obtain and become established in a suitable
replacement location.
(iv) Minimize hardships to persons in adjusting to relocation by
providing counseling, advice as to other sources of assistance that may
be available, and such other help as may be appropriate.
(v) Supply persons to be displaced with appropriate information
concerning Federal and State housing programs, disaster loan and other
programs administered by the Small Business Administration, and other
Federal and State programs offering assistance to displaced persons, and
technical help to persons applying for such assistance.
(vi) Any person who occupies property acquired by an Agency, when
such occupancy began subsequent to the acquisition of the property, and
the occupancy is permitted by a short term rental agreement or an
agreement subject to termination when the property is needed for a
program or project, shall be eligible for advisory services, as
determined by the Agency.
(d) Coordination of relocation activities. Relocation activities
shall be coordinated with project work and other displacement-causing
activities to ensure that, to the extent feasible, persons displaced
receive consistent treatment and the duplication of functions is
minimized. (Also see 24.6, subpart A.)
49 CFR 24.206 Eviction for cause.
Eviction for cause must conform to applicable state and local law.
Any person who occupies the real property and is not in unlawful
occupancy on the date of the initiation of negotiations, is presumed to
be entitled to relocation payments and other assistance set forth in
this part unless the Agency determines that:
(a) The person received an eviction notice prior to the initiation of
negotiations and, as a result of that notice is later evicted; or
(b) The person is evicted after the initation of negotiations for
serious or repeated violation of material terms of the lease or
occupancy agreement; and
(c) In either case the eviction was not undertaken for the purpose of
evading the obligation to make available the payments and other
assistance set forth in this part.
For purposes of determining eligibility for relocation payments, the
date of displacement is the date the person moves, or if later, the date
a comparable replacement dwelling is made available. This section
applies only to persons who would otherwise have been displaced by the
project.
49 CFR 24.207 General requirements -- claims for relocation payments.
(a) Documentation. Any claim for a relocation payment shall be
supported by such documentation as may be reasonably required to support
expenses incurred, such as bills, certified prices, appraisals, or other
evidence of such expenses. A displaced person must be provided
reasonable assistance necessary to complete and file any required claim
for payment.
(b) Expeditious payments. The Agency shall review claims in an
expeditious manner. The claimant shall be promptly notified as to any
additional documentation that is required to support the claim. Payment
for a claim shall be made as soon as feasible following receipt of
sufficient documentation to support the claim.
(c) Advance payments. If a person demonstrates the need for an
advance relocation payment in order to avoid or reduce a hardship, the
Agency shall issue the payment, subject to such safeguards as are
appropriate to ensure that the objective of the payment is accomplished.
(d) Time for filing -- (1) All claims for a relocation payment shall
be filed with the Agency within 18 months after:
(i) For tenants, the date of displacement;
(ii) For owners, the date of displacement or the date of the final
payment for the acquisition of the rea1 property, whichever is later.
(2) This time period shall be waived by the Agency for good cause.
(e) Multiple occupants of one displacement dwelling. If two or more
occupants of the displacement dwelling move to separate replacement
dwellings, each occupant is entitled to a reasonable prorated share, as
determined by the Agency, of any relocation payments that would have
been made if the occupants moved together to a comparable replacement
dwelling. However, if the Agency determines that two or more occupants
maintained separate households within the same dwelling, such occupants
have separate entitlements to relocation payments.
(f) Deductions from relocation payments. An Agency shall deduct the
amount of any advance relocation payment from the relocation payment(s)
to which a displaced person is otherwise entitled. Similarly, a Federal
agency shall, and a State agency may, deduct from relocation payments
any rent that the displaced person owes the Agency; provided that no
deduction shall be made if it would prevent the displaced person from
obtaining a comparable replacement dwelling as required by 24.204. The
Agency shall not withhold any part of a relocation payment to a
displaced person to satisfy an obligation to any other creditor.
(g) Notice of denial of claim. If the Agency disapproves all or part
of a payment claimed or refuses to consider the claim on its merits
because of untimely filing or other grounds, it shall promptly notify
the claimant in writing of its determination, the basis for its
determination, and the procedures for appealing that determination.
49 CFR 24.208 Relocation payments not considered as income.
No relocation payment received by a displaced person under this part
shall be considered as income for the purpose of the Internal Revenue
Code of 1954, which has been redesignated as the Internal Revenue Code
of 1986 or for the purpose of determining the eligibility or the extent
of eligibility of any person for assistance under the Social Security
Act or any other Federal law, except for any Federal law providing
low-income housing assistance.
49 CFR 24.208 Subpart D -- Payments for Moving and Related Expenses
49 CFR 24.301 Payment for actual reasonable moving and related expenses
-- residential moves.
Any displaced owner-occupant or tenant of a dwelling who qualifies as
a displaced person (defined at 24.2(g)) is entitled to payment of his
or her actual moving and related expenses, as the Agency determines to
be reasonable and necessary, including expenses for:
(a) Transportation of the displaced person and personal property.
Transportation costs for a distance beyond 50 miles are not eligible,
unless the Agency determines that relocation beyond 50 miles is
justified.
(b) Packing, crating, unpacking, and uncrating of the personal
property.
(c) Disconnecting, dismantling, removing, reassembling, and
reinstalling relocated household appliances, and other personal
property.
(d) Storage of the personal property for a period not to exceed l2
months, unless the Agency determines that a longer period is necessary.
(e) Insurance for the replacement value of the property in connection
with the move and necessary storage.
(f) The replacement value of property lost, stolen, or damaged in the
process of moving (not through the fault or negligence of the displaced
person, his or her agent, or employee) where insurance covering such
loss, theft, or damage is not reasonably available.
(g) Other moving-related expenses that are not listed as ineligible
under 24.305, as the Agency determines to be reasonable and necessary.
49 CFR 24.302 Fixed payment for moving expenses -- residential moves.
Any person displaced from a dwelling or a seasonal residence is
entitled to receive an expense and dislocation allowance as an
alternative to a payment for actual moving and related expenses under
24.301. This allowance shall be determined according to the applicable
schedule approved by the Federal Highway Administration. This includes
a provision that the expense and dislocation allowance to a person with
minimal personal possessions who is in occupancy of a dormitory style
room shared by two or more other unrelated persons or a person whose
residential move is performed by an agency at no cost to the person
shall be limited to $50.
49 CFR 24.303 Payment for actual reasonable moving and related expenses
-- nonresidential moves.
(a) Eligible costs. Any business or farm operation which qualifies
as a displaced person (defined at 24.2(g)) is entitled to payment for
such actual moving and related expenses, as the Agency determines to be
reasonable and necessary, including expenses for:
(1) Transportation of personal property. Transportation costs for a
distance beyond 50 miles are not eligible, unless the Agency determines
that relocation beyond 50 miles is justified.
(2) Packing, crating, unpacking, and uncrating of the personal
property.
(3) Disconnecting, dismantling, removing, reassembling, and
reinstalling relocated machinery, equipment, and other personal
property, including substitute personal property described at
24.303(a)(12). This includes connection to utilities available nearby.
It also includes modifications to the personal property necessary to
adapt it to the replacement structure, the replacement site, or the
utilities at the replacement site, and modifications necessary to adapt
the utilities at the replacement site to the personal property.
(Expenses for providing utilities from the right-of-way to the building
or improvement are excluded.)
(4) Storage of the personal property for a period not to exceed 12
months, unless the Agency determines that a longer period is necessary.
(5) Insurance for the replacement value of the personal property in
connection with the move and necessary storage.
(6) Any license, permit, or certification required of the displaced
person at the replacement location. However, the payment may be based
on the remaining useful life of the existing license, permit, or
certification.
(7) The replacement value of property lost, stolen, or damaged in the
process of moving (not through the fault or negligence of the displaced
person, his or her agent, or employee) where insurance covering such
loss, theft, or damage is not reasonably available.
(8) Professional services necessary for:
(i) Planning the move of the personal property,
(ii) Moving the personal property, and
(iii) Installing the relocated personal property at the replacement
location.
(9) Relettering signs and replacing stationery on hand at the time of
displacement that are made obsolete as a result of the move.
(10) Actual direct loss of tangible personal property incurred as a
result of moving or discontinuing the business or farm operation. The
payment shall consist of the lesser of:
(i) The fair market value of the item for continued use at the
displacement site, less the proceeds from its sale. (To be eligible for
payment, the claimant must make a good faith effort to sell the personal
property, unless the Agency determines that such effort is not
necessary. When payment for property loss is claimed for goods held for
sale, the fair market value shall be based on the cost of the goods to
the business, not the potential selling price.); or
(ii) The estimated cost of moving the item, but with no allowance for
storage. (If the business or farm operation is discontinued, the
estimated cost shall be based on a moving distance of 50 miles.)
(11) The reasonable cost incurred in attempting to sell an item that
is not to be relocated.
(12) Purchase of substitute personal property. If an item of
personal property which is used as part of a business or farm operation
is not moved but is promptly replaced with a substitute item that
performs a comparable function at the replacement site, the displaced
person is entitled to payment of the lesser of:
(i) The cost of the substitute item, including installation costs at
the replacement site, minus any proceeds from the sale or trade-in of
the replaced item; or
(ii) The estimated cost of moving and reinstalling the replaced item
but with no allowance for storage. At the Agency's discretion, the
estimated cost for a low cost or uncomplicated move may be based on a
single bid or estimate.
(13) Searching for a replacement location. A displaced business or
farm operation is entitled to reimbursement for actual expenses, not to
exceed $1,000, as the Agency determines to be reasonable, which are
incurred in searching for a replacement location, including:
(i) Transportation.
(ii) Meals and lodging away from home.
(iii) Time spent searching, based on reasonable salary or earnings.
(iv) Fees paid to a real estate agent or broker to locate a
replacement site, exclusive of any fees or commissions related to the
purchase of such site.
(14) Other moving-related expenses that are not listed as ineligible
under 24.305, as the Agency determines to be reasonable and necessary.
(b) Notification and inspection. The following requirements apply to
payments under this section:
(1) The Agency shall inform the displaced person, in writing, of the
requirements of paragraphs (b) (2) and (3) of this section as soon as
possible after the initiation of negotiations. This information may be
included in the relocation information provided to the displaced person
as set forth in 24.203.
(2) The displaced person must provide the Agency reasonable advance
written notice of the approximate date of the start of the move or
disposition of the personal property and a list of the items to be
moved. However, the Agency may waive this notice requirement after
documenting its file accordingly.
(3) The displaced person must permit the Agency to make reasonable
and timely inspections of the personal property at both the displacement
and replacement sites and to monitor the move.
(c) Self moves. If the displaced person elects to take full
responsibility for the move of the business or farm operation, the
Agency may make a payment for the person's moving expenses in an amount
not to exceed the lower of two acceptable bids or estimates obtained by
the Agency or prepared by qualified staff. At the Agency's discretion,
a payment for a low cost or uncomplicated move may be based on a single
bid or estimate.
(d) Transfer of ownership. Upon request and in accordance with
applicable law, the claimant shall transfer to the Agency ownership of
any personal property that has not been moved, sold, or traded in.
(e) Advertising signs. The amount of a payment for direct loss of an
advertising sign which is personal property shall be the lesser of:
(1) The depreciated reproduction cost of the sign, as determined by
the Agency, less the proceeds from its sale; or
(2) The estimated cost of moving the sign, but with no allowance for
storage.
49 CFR 24.304 Reestablishment expenses -- nonresidential moves.
In addition to the payments available under 24.303 of this subpart,
a small business, as defined in 24.2(t), farm or nonprofit organization
may be eligible to receive a payment, not to exceed $10,000, for
expenses actually incurred in relocating and reestablishing such small
business, farm or nonprofit organization at a replacement site.
(a) Eligible expenses. Reestablishment expenses must be reasonable
and necessary, as determined by the Agency. They may include, but are
not limited to, the following:
(1) Repairs or improvements to the replacement real property as
required by Federal, State or local law, code or ordinance.
(2) Modifications to the replacement property to accommodate the
business operation or make replacement structures suitable for
conducting the business.
(3) Construction and installation costs, not to exceed $1,500 for
exterior signing to advertise the business.
(4) Provision of utilities from right-of-way to improvements on the
replacement site.
(5) Redecoration or replacement of soiled or worn surfaces at the
replacement site, such as paint, panelling, or carpeting.
(6) Licenses, fees and permits when not paid as part of moving
expenses.
(7) Feasibility surveys, soil testing and marketing studies.
(8) Advertisement of replacement location, not to exceed $1,500.
(9) Professional services in connection with the purchase or lease of
a replacement site.
(10) Estimated increased costs of operation during the first 2 years
at the replacement site, not to exceed $5,000, for such items as:
(i) Lease or rental charges,
(ii) Personal or real property taxes,
(iii) Insurance premiums, and
(iv) Utility charges, excluding impact fees.
(11) Impact fees or one-time assessments for anticipated heavy
utility usage.
(12) Other items that the Agency considers essential to the
reestablishment of the business.
(13) Expenses in excess of the regulatory maximums set forth in
paragraphs (a) (3), (8) and (10) of this section may be considered
eligible if large and legitimate disparities exist between costs of
operation at the displacement site and costs of operation at an
otherwise similar replacement site. In such cases the regulatory
limitation for reimbursement of such costs may, at the request of the
Agency, be waived by the Federal agency funding the program or project,
but in no event shall total costs payable under this section exceed the
$10,000 statutory maximum.
(b) Ineligible expenses. The following is a nonexclusive listing of
reestablishment expenditures not considered to be reasonable, necessary,
or otherwise eligible:
(1) Purchase of capital assets, such as, office furniture, filing
cabinets, machinery, or trade fixtures.
(2) Purchase of manufacturing materials, production supplies, product
inventory, or other items used in the normal course of the business
operation.
(3) Interior or exterior refurbishments at the replacement site which
are for aesthetic purposes, except as provided in paragraph (a)(5) of
this section.
(4) Interest on money borrowed to make the move or purchase the
replacement property.
(5) Payment to a part-time business in the home which does not
contribute materially to the household income.
49 CFR 24.305 Ineligible moving and related expenses.
A displaced person is not entitled to payment for:
(a) The cost of moving any structure or other real property
improvement in which the displaced person reserved ownership. However,
this part does not preclude the computation under 24.401(c)(4)(iii);
or
(b) Interest on a loan to cover moving expenses; or
(c) Loss of goodwill; or
(d) Loss of profits; or
(e) Loss of trained employees; or
(f) Any additional operating expenses of a business or farm operation
incurred because of operating in a new location except as provided in
24.304(a)(10); or
(g) Personal injury; or
(h) Any legal fee or other cost for preparing a claim for a
relocation payment or for representing the claimant before the Agency;
or
(i) Expenses for searching for a replacement dwelling; or
(j) Physical changes to the real property at the replacement location
of a business or farm operation except as provided in 24.303(a)(3) and
24.304(a); or
(k) Costs for storage of personal property on real property already
owned or leased by the displaced person.
49 CFR 24.306 Fixed payment for moving expenses -- nonresidential
moves.
(a) Business. A displaced business may be eligible to choose a fixed
payment in lieu of the payments for actual moving and related expenses,
and actual reasonable reestablishment expenses provided by 24.303 and
24.304. Such fixed payment, except for payment to a nonprofit
organization, shall equal the average annual net earnings of the
business, as computed in accordance with paragraph (e) of this section,
but not less than $1,000 nor more than $20,000. The displaced business
is eligible for the payment if the Agency determines that:
(1) The business owns or rents personal property which must be moved
in connection with such displacement and for which an expense would be
incurred in such move; and, the business vacates or relocates from its
displacement site.
(2) The business cannot be relocated without a substantial loss of
its existing patronage (clientele or net earnings). A business is
assumed to meet this test unless the Agency determines that it will not
suffer a substantial loss of its existing patronage; and
(3) The business is not part of a commercial enterprise having more
than three other entities which are not being acquired by the Agency,
and which are under the same ownership and engaged in the same or
similar business activities.
(4) The business is not operated at a displacement dwelling solely
for the purpose of renting such dwelling to others.
(5) The business is not operated at the displacement site solely for
the purpose of renting the site to others.
(6) The business contributed materially to the income of the
displaced person during the 2 taxable years prior to displacement (see
24.2(e)).
(b) Determining the number of businesses. In determining whether two
or more displaced legal entities constitute a single business which is
entitled to only one fixed payment, all pertinent factors shall be
considered, including the extent to which:
(1) The same premises and equipment are shared;
(2) Substantially identical or interrelated business functions are
carried out and business and financial affairs are commingled;
(3) The entities are held out to the public, and to those customarily
dealing with them, as one business; and
(4) The same person or closely related persons own, control, or
manage the affairs of the entities.
(c) Farm operation. A displaced farm operation (defined at 24.2(i))
may choose a fixed payment, in lieu of the payments for actual moving
and related expenses and actual reasonable reestablishment expenses, in
an amount equal to its average annual net earnings as computed in
accordance with paragraph (e) of this section, but not less than $1,000
nor more than $20,000. In the case of a partial acquisition of land
which was a farm operation before the acquisition, the fixed payment
shall be made only if the Agency determines that:
(1) The acquisition of part of the land caused the operator to be
displaced from the farm operation on the remaining land; or
(2) The partial acquisition caused a substantial change in the nature
of the farm operation.
(d) Nonprofit organization. A displaced nonprofit organization may
choose a fixed payment of $1,000 to $20,000, in lieu of the payments for
actual moving and related expenses and actual reasonable reestablishment
expenses, if the Agency determines that it cannot be relocated without a
substantial loss of existing patronage (membership or clientele). A
nonprofit organization is assumed to meet this test, unless the Agency
demonstrates otherwise. Any payment in excess of $1,000 must be
supported with financial statements for the two 12-month periods prior
to the acquisition. The amount to be used for the payment is the
average of 2 years annual gross revenues less administrative expenses.
(See appendix A of this part).
(e) Average annual net earnings of a business or farm operation. The
average annual net earnings of a business or farm operation are one-half
of its net earnings before Federal, State, and local income taxes during
the 2 taxable years immediately prior to the taxable year in which it
was displaced. If the business or farm was not in operation for the
full 2 taxable years prior to displacement, net earnings shall be based
on the actual period of operation at the displacement site during the 2
taxable years prior to displacement, projected to an annual rate.
Average annual net earnings may be based upon a different period of time
when the Agency determines it to be more equitable. Net earnings
include any compensation obtained from the business or farm operation by
its owner, the owner's spouse, and dependents. The displaced person
shall furnish the Agency proof of net earnings through income tax
returns, certified financial statements, or other reasonable evidence
which the Agency determines is satisfactory.
49 CFR 24.307 Discretionary utility relocation payments.
(a) Whenever a program or project undertaken by a displacing agency
causes the relocation of a utility facility (see 24.2 (aa) and (bb))
and the relocation of the facility creates extraordinary expenses for
its owner, the displacing agency may, at its option, make a relocation
payment to the owner for all or part of such expenses, if the following
criteria are met:
(1) The utility facility legally occupies State or local government
property, or property over which the State or local government has an
easement or right-of-way; and
(2) The utility facility's right of occupancy thereon is pursuant to
State law or local ordinance specifically authorizing such use, or where
such use and occupancy has been granted through a franchise, use and
occupancy permit, or other similar agreement; and
(3) Relocation of the utility facility is required by and is
incidental to the primary purpose of the project or program undertaken
by the displacing agency; and
(4) There is no Federal law, other than the Uniform Act, which
clearly establishes a policy for the payment of utility moving costs
that is applicable to the displacing agency's program or project; and
(5) State or local government reimbursement for utility moving costs
or payment of such costs by the displacing agency is in accordance with
State law.
(b) For the purposes of this section, the term ''extraordinary
expenses'' means those expenses which, in the opinion of the displacing
agency, are not routine or predictable expenses relating to the
utility's occupancy of rights-of-way, and are not ordinarily budgeted as
operating expenses, unless the owner of the utility facility has
explicitly and knowingly agreed to bear such expenses as a condition for
use of the property, or has voluntarily agreed to be responsible for
such expenses.
(c) A relocation payment to a utility facility owner for moving costs
under this section may not exceed the cost to functionally restore the
service disrupted by the federally assisted program or project, less any
increase in value of the new facility and salvage value of the old
facility. The displacing agency and the utility facility owner shall
reach prior agreement on the nature of the utility relocation work to be
accomplished, the eligibility of the work for reimbursement, the
responsibilities for financing and accomplishing the work, and the
method of accumulating costs and making payment. (See appendix A, of
this part, 24.307.)
49 CFR 24.307 Subpart E -- Replacement Housing Payments
49 CFR 24.401 Replacement housing payment for 180-day
homeowner-occupants.
(a) Eligibility. A displaced person is eligible for the replacement
housing payment for a 180-day homeowner-occupant if the person:
(1) Has actually owned and occupied the displacement dwelling for not
less than 180 days immediately prior to the initiation of negotiations;
and
(2) Purchases and occupies a decent, safe, and sanitary replacement
dwelling within one year after the later of the following dates (except
that the Agency may extend such one year period for good cause):
(i) The date the person receives final payment for the displacement
dwelling or, in the case of condemnation, the date the full amount of
the estimate of just compensation is deposited in the court, or
(ii) The date the displacing agency's obligation under 24.204 is
met.
(b) Amount of payment. The replacement housing payment for an
eligible 180-day homeowner-occupant may not exceed $22,500. (See also
24.404.) The payment under this subpart is limited to the amount
necessary to relocate to a comparable replacement dwelling within one
year from the date the displaced homeowner-occupant is paid for the
displacement dwelling, or the date a comparable replacement dwelling is
made available to such person, whichever is later. The payment shall be
the sum of:
(1) The amount by which the cost of a replacement dwelling exceeds
the acquisition cost of the displacement dwelling, as determined in
accordance with paragraph (c) of this section; and
(2) The increased interest costs and other debt service costs which
are incurred in connection with the mortgage(s) on the replacement
dwelling, as determined in accordance with paragraph (d) of this
section; and
(3) The reasonable expenses incidental to the purchase of the
replacement dwelling, as determined in accordance with paragraph (e) of
this section.
(c) Price differential -- (1) Basic computation. The price
differential to be paid under paragraph (b)(1) of this section is the
amount which must be added to the acquisition cost of the displacement
dwelling to provide a total amount equal to the lesser of:
(i) The reasonabIe cost of a comparable replacement dwelling as
determined in accordance with 24.403(a); or
(ii) The purchase price of the decent, safe, and sanitary replacement
dwelling actually purchased and occupied by the displaced person.
(2) Mixed-use and multifamily properties. If the displacement
dwelling was part of a property that contained another dwelling unit
and/or space used for non-residential purposes, and/or is located on a
lot larger than typical for residential purposes, only that portion of
the acquisition payment which is actually attributable to the
displacement dwelling shall be considered its acquisition cost when
computing the price differential.
(3) Insurance proceeds. To the extent necessary to avoid duplicate
compensation, the amount of any insurance proceeds received by a person
in connection with a loss to the displacement dwelling due to a
catastrophic occurrence (fire, flood, etc.) shall be included in the
acquisition cost of the displacement dwelling when computing the price
differential. (Also see 24.3.)
(4) Owner retention of displacement dwelling. If the owner retains
ownership of his or her dwelling, moves it from the displacement site,
and reoccupies it on a replacement site, the purchase price of the
replacement dwelling shall be the sum of:
(i) The cost of moving and restoring the dwelling to a condition
comparable to that prior to the move; and
(ii) The cost of making the unit a decent, safe, and sanitary
replacement dwelling (defined at 24.2(f)); and
(iii) The current fair market value for residential use of the
replacement site (see appendix A of this part, 24.401(c)(4)(iii)),
unless the claimant rented the displacement site and there is a
reasonable opportunity for the claimant to rent a suitable replacement
site; and
(iv) The retention value of the dwelling, if such retention value is
reflected in the ''acquisition cost'' used when computing the
replacement housing payment.
(d) Increased mortgage interest costs. The displacing agency shall
determine the factors to be used in computing the amount to be paid to a
displaced person under paragraph (b)(2) of this section. The payment
for increased mortgage interest cost shall be the amount which will
reduce the mortgage balance on a new mortgage to an amount which could
be amortized with the same monthly payment for principal and interest as
that for the mortgage(s) on the displacement dwelling. In addition,
payments shall include other debt service costs, if not paid as
incidenta1 costs, and shall be based only on bona fide mortgages that
were valid liens on the displacement dwelling for at least 180 days
prior to the initiation of negotiations. Paragraphs (d) (1) through (5)
of this section shall apply to the computation of the increased mortgage
interest costs payment, which payment shall be contingent upon a
mortgage being placed on the replacement dwelling.
(1) The payment shall be based on the unpaid mortgage balance(s) on
the displacement dwelling; however, in the event the person obtains a
smaller mortgage than the mortgage balance(s) computed in the buydown
determination the payment will be prorated and reduced accordingly.
(See appendix A of this part.) In the case of a home equity loan the
unpaid balance shall be that balance which existed 180 days prior to the
initiation of negotiations or the balance on the date of acquisition,
whichever is less.
(2) The payment shall be based on the remaining term of the
mortgage(s) on the displacement dwelling or the term of the new
mortgage, whichever is shorter.
(3) The interest rate on the new mortgage used in determining the
amount of the payment shall not exceed the prevailing fixed interest
rate for conventional mortgages currently charged by mortgage lending
institutions in the area in which the replacement dwelling is located.
(4) Purchaser's points and loan origination or assumption fees, but
not seller's points, shall be paid to the extent:
(i) They are not paid as incidental expenses;
(ii) They do not exceed rates normal to similar real estate
transactions in the area;
(iii) The Agency determines them to be necessary; and
(iv) The computation of such points and fees shall be based on the
unpaid mortgage balance on the displacement dwelling, less the amount
determined for the reduction of such mortgage balance under this
section.
(5) The displaced person shall be advised of the approximate amount
of this payment and the conditions that must be met to receive the
payment as soon as the facts relative to the person's current mortgage
(s) are known and the payment shall be made available at or near the
time of closing on the replacement dwelling in order to reduce the new
mortgage as intended.
(e) Incidental expenses. The incidental expenses to be paid under
paragraph (b)(3) of this section or 24.402(c)(1) are those necessary
and reasonable costs actually incurred by the displaced person incident
to the purchase of a replacement dwelling, and customarily paid by the
buyer, including:
(1) Legal, closing, and related costs, including those for title
search, preparing conveyance instruments, notary fees, preparing surveys
and plats, and recording fees.
(2) Lender, FHA, or VA application and appraisal fees.
(3) Loan origination or assumption fees that do not represent prepaid
interest.
(4) Certification of structural soundness and termite inspection when
required.
(5) Credit report.
(6) Owner's and mortgagee's evidence of title, e.g., title insurance,
not to exceed the costs for a comparable replacement dwelling.
(7) Escrow agent's fee.
(8) State revenue or documentary stamps, sales or transfer taxes (not
to exceed the costs for a comparable replacement dwelling).
(9) Such other costs as the Agency determines to be incidental to the
purchase.
(f) Rental assistance payment for 180-day homeowner. A 180-day
homeowner-occupant, who could be eligible for a replacement housing
payment under paragraph (a) of this section but elects to rent a
replacement dwelling, is eligible for a rental assistance payment not to
exceed $5,250, computed and disbursed in accordance with 24.402(b).
49 CFR 24.402 Replacement housing payment for 90-day occupants.
(a) Eligibility. A tenant or owner-occupant displaced from a
dwelling is entitled to a payment not to exceed $5,250 for rental
assistance, as computed in accordance with paragraph (b) of this
section, or downpayment assistance, as computed in accordance with
paragraph (c) of this section, if such displaced person:
(1) Has actually and lawfully occupied the displacement dwelling for
at least 90 days immediately prior to the initiation of negotiations;
and
(2) Has rented, or purchased, and occupied a decent, safe, and
sanitary replacement dwelling within 1 year (unless the Agency extends
this period for good cause) after:
(i) For a tenant, the date he or she moves from the displacement
dwelling, or
(ii) For an owner-occupant, the later of:
(A) The date he or she receives final payment for the displacement
dwelling, or in the case of condemnation, the date the full amount of
the estimate of just compensation is deposited with the court; or
(B) The date he or she moves from the displacement dwelling.
(b) Rental assistance payment -- (1) Amount of payment. An eligible
displaced person who rents a replacement dwelling is entitled to a
payment not to exceed $5,250 for rental assistance. (See also 24.404.)
Such payment shall be 42 times the amount obtained by subtracting the
base monthly rental for the displacement dwelling from the lesser of:
(i) The monthly rent and estimated average monthly cost of utilities
for a comparable replacement dwelling; or
(ii) The monthly rent and estimated average monthly cost of utilities
for the decent, safe, and sanitary replacement dwelling actually
occupied by the displaced person.
(2) Base monthly rental for displacement dwelling. The base monthly
rental for the displacement dwelling is the lesser of:
(i) The average monthly cost for rent and utilities at the
displacement dwelling for a reasonable period prior to displacement, as
determined by the Agency. (For an owner-occupant, use the fair market
rent for the displacement dwelling. For a tenant who paid little or no
rent for the displacement dwelling, use the fair market rent, unless its
use would result in a hardship because of the person's income or other
circumstances); or
(ii) Thirty (30) percent of the person's average gross household
income. (If the person refuses to provide appropriate evidence of
income or is a dependent, the base monthly rental shall be established
solely on the criteria in paragraph (b)(2)(i) of this section. A full
time student or resident of an institution may be assumed to be a
dependent, unless the person demonstrates otherwise.); or
(iii) The total of the amounts designated for shelter and utilities
if receiving a welfare assistance payment from a program that designates
the amounts for shelter and utilities.
(3) Manner of disbursement. A rental assistance payment may, at the
Agency's discretion, be disbursed in either a lump sum or in
installments. However, except as limited by 24.403(f), the full amount
vests immediately, whether or not there is any later change in the
person's income or rent, or in the condition or location of the person's
housing.
(c) Downpayment assistance payment -- (1) Amount of payment. An
eligible displaced person who purchases a replacement dwelling is
entitled to a downpayment assistance payment in the amount the person
would receive under paragraph (b) of this section if the person rented a
comparable replacement dwelling. At the discretion of the Agency, a
downpayment assistance payment may be increased to any amount not to
exceed $5,250. However, the payment to a displaced homeowner shall not
exceed the amount the owner would receive under 24.401(b) if he or she
met the 180-day occupancy requirement. An Agency's discretion to
provide the maximum payment shall be exercised in a uniform and
consistent manner, so that eligible displaced persons in like
circumstances are treated equally. A displaced person eligible to
receive a payment as a 180-day owner-occupant under 24.401(a) is not
eligible for this payment. (See also appendix A of this part,
24.402(c).)
(2) Application of payment. The full amount of the replacement
housing payment for downpayment assistance must be applied to the
purchase price of the replacement dwelling and related incidental
expenses.
49 CFR 24.403 Additional rules governing replacement housing payments.
(a) Determining cost of comparable replacement dwelling. The upper
limit of a replacement housing payment shall be based on the cost of a
comparable replacement dwelling (defined at 24.2(d)).
(1) If available, at least three comparable replacement dwellings
shall be examined and the payment computed on the basis of the dwelling
most nearly representative of, and equal to, or better than, the
displacement dwelling. An adjustment shall be made to the asking price
of any dwelling, to the extent justified by local market data (see also
24.205(a)(2) and appendix A of this part). An obviously overpriced
dwelling may be ignored.
(2) If the site of the comparable replacement dwelling lacks a major
exterior attribute of the displacement dwelling site, (e.g., the site is
significantly smaller or does not contain a swimming pool), the value of
such attribute shall be subtracted from the acquisition cost of the
displacement dwelling for purposes of computing the payment.
(3) If the acquisition of a portion of a typical residential property
causes the displacement of the owner from the dwelling and the remainder
is a buildable residential lot, the Agency may offer to purchase the
entire property. If the owner refuses to sell the remainder to the
Agency, the fair market value of the remainder may be added to the
acquisition cost of the displacement dwelling for purposes of computing
the replacement housing payment.
(4) To the extent feasible, comparable replacement dwellings shall be
selected from the neighborhood in which the displacement dwelling was
located or, if that is not possible, in nearby or similar neighborhoods
where housing costs are generally the same or higher.
(b) Inspection of replacement dwelling. Before making a replacement
housing payment or releasing a payment from escrow, the Agency or its
designated representative shall inspect the replacement dwelling and
determine whether it is a decent, safe, and sanitary dwelling as defined
at 24.2(f).
(c) Purchase of replacement dwelling. A displaced person is
considered to have met the requirement to purchase a replacement
dwelling, if the person:
(1) Purchases a dwelling; or
(2) Purchases and rehabilitates a substandard dwelling; or
(3) Relocates a dwelling which he or she owns or purchases; or
(4) Constructs a dwelling on a site he or she owns or purchases; or
(5) Contracts for the purchase or construction of a dwelling on a
site provided by a builder or on a site the person owns or purchases.
(6) Currently owns a previously purchased dwelling and site,
valuation of which shall be on the basis of current fair market value.
(d) Occupancy requirements for displacement or replacement dwelling.
No person shall be denied eligibility for a replacement housing payment
solely because the person is unable to meet the occupancy requirements
set forth in these regulations for a reason beyond his or her control,
including:
(1) A disaster, an emergency, or an imminent threat to the public
health or welfare, as determined by the President, the Federal agency
funding the project, or the displacing agency; or
(2) Another reason, such as a delay in the construction of the
replacement dwelling, military reserve duty, or hospital stay, as
determined by the Agency.
(e) Conversion of payment. A displaced person who initially rents a
replacement dwelling and receives a rental assistance payment under
24.402(b) is eligible to receive a payment under 24.401 or 24.402(c)
if he or she meets the eligibility criteria for such payments, including
purchase and occupancy within the prescribed 1-year period. Any portion
of the rental assistance payment that has been disbursed shall be
deducted from the payment computed under 24.401 or 24.402(c).
(f) Payment after death. A replacement housing payment is personal
to the displaced person and upon his or her death the undisbursed
portion of any such payment shall not be paid to the heirs or assigns,
except that:
(1) The amount attributable to the displaced person's period of
actual occupancy of the replacement housing shall be paid.
(2) The full payment shall be disbursed in any case in which a member
of a displaced family dies and the other family member(s) continue to
occupy a decent, safe, and sanitary replacement dwelling.
(3) Any portion of a replacement housing payment necessary to satisfy
the legal obligation of an estate in connection with the selection of a
replacement dwelling by or on behalf of a deceased person shall be
disbursed to the estate.
49 CFR 24.404 Replacement housing of last resort.
(a) Determination to provide replacement housing of last resort.
Whenever a program or project cannot proceed on a timely basis because
comparable replacement dwellings are not available within the monetary
limits for owners or tenants, as specified in 24.401 or 24.402, as
appropriate, the Agency shall provide additional or alternative
assistance under the provisions of this subpart. Any decision to
provide last resort housing assistance must be adequately justified
either:
(1) On a case-by-case basis, for good cause, which means that
appropriate consideration has been given to:
(i) The availability of comparable replacement housing in the program
or project area; and
(ii) The resources available to provide comparable replacement
housing; and
(iii) The individual circumstances of the displaced person; or
(2) By a determination that:
(i) There is little, if any, comparable replacement housing available
to displaced persons within an entire program or project area; and,
therefore, last resort housing assistance is necessary for the area as a
whole; and
(ii) A program or project cannot be advanced to completion in a
timely manner without last resort housing assistance; and
(iii) The method selected for providing last resort housing
assistance is cost effective, considering all elements which contribute
to total program or project costs. (Will project delay justify waiting
for less expensive comparable replacement housing to become available?)
(b) Basic rights of persons to be displaced. Notwithstanding any
provision of this subpart, no person shall be required to move from a
displacement dwelling unless comparable replacement housing is available
to such person. No person may be deprived of any rights the person may
have under the Uniform Act or this part. The Agency shall not require
any displaced person to accept a dwelling provided by the Agency under
these procedures (unless the Agency and the displaced person have
entered into a contract to do so) in lieu of any acquisition payment or
any relocation payment for which the person may otherwise be eligible.
(c) Methods of providing comparable replacement housing. Agencies
shall have broad latitude in implementing this subpart, but
implementation shall be for reasonable cost, on a case-by-case basis
unless an exception to case-by-case analysis is justified for an entire
project.
(1) The methods of providing replacement housing of last resort
include, but are not limited to:
(i) A replacement housing payment in excess of the limits set forth
in 24.401 or 24.402. A rental assistance subsidy under this section
may be provided in installments or in a lump sum at the Agency's
discretion.
(ii) Rehabilitation of and/or additions to an existing replacement
dwelling.
(iii) The construction of a new replacement dwelling.
(iv) The provision of a direct loan, which requires regular
amortization or deferred repayment. The loan may be unsecured or
secured by the real property. The loan may bear interest or be
interest-free.
(v) The relocation and, if necessary, rehabilitation of a dwelling.
(vi) The purchase of land and/or a replacement dwelling by the
displacing agency and subsequent sale or lease to, or exchange with a
displaced person.
(vii) The removal of barriers to the handicapped.
(viii) The change in status of the displaced person with his or her
concurrence from tenant to homeowner when it is more cost effective to
do so, as in cases where a downpayment may be less expensive than a last
resort rental assistance payment.
(2) Under special circumstances, consistent with the definition of a
comparable replacement dwelling, modified methods of providing
replacement housing of last resort permit consideration of replacement
housing based on space and physical characteristics different from those
in the displacement dwelling (see appendix A, of this part, 24.404),
including upgraded, but smaller replacement housing that is decent,
safe, and sanitary and adequate to accommodate individuals or families
displaced from marginal or substandard housing with probable functional
obsolesence. In no event, however, shall a displaced person be required
to move into a dwelling that is not functionally equivalent in
accordance with 24.2(d)(2).
(3) The agency shall provide assistance under this subpart to a
displaced person who is not eligible to receive a replacement housing
payment under 24.401 and 24.402 because of failure to meet the length
of occupancy requirement when comparable replacement rental housing is
not available at rental rates within the person's financial means, which
is 30 percent of the person's gross monthly household income. Such
assistance shall cover a period of 42 months.
49 CFR 24.404 Subpart F -- Mobile Homes
49 CFR 24.501 Applicability.
This subpart describes the requirements governing the provision of
relocation payments to a person displaced from a mobile home and/or
mobile home site who meets the basic eligibility requirements of this
part. Except as modified by this subpart, such a displaced person is
entitled to a moving expense payment in accordance with subpart D and a
replacement housing payment in accordance with subpart E to the same
extent and subject to the same requirements as persons displaced from
conventional dwellings.
49 CFR 24.502 Moving and related expenses -- mobile homes.
(a) A homeowner-occupant displaced from a mobile home or mobile
homesite is entitled to a payment for the cost of moving his or her
mobile home on an actual cost basis in accordance with 24.301. A
non-occupant owner of a rented mobile home is eligible for actual cost
reimbursement under 24.303. However, if the mobile home is not
acquired, but the homeowner-occupant obtains a replacement housing
payment under one of the circumstances described at 24.503(a)(3), the
owner is not eligible for payment for moving the mobile home, but may be
eligible for a payment for moving personal property from the mobile
home.
(b) The following rules apply to payments for actual moving expenses
under 24.301:
(1) A displaced mobile homeowner, who moves the mobile home to a
replacement site, is eligible for the reasonable cost of disassembling,
moving, and reassembling any attached appurtenances, such as porches,
decks, skirting, and awnings, which were not acquired, anchoring of the
unit, and utility ''hook-up'' charges.
(2) If a mobile home requires repairs and/or modifications so that it
can be moved and/or made decent, safe, and sanitary, and the Agency
determines that it would be economically feasible to incur the
additional expense, the reasonable cost of such repairs and/or
modifications is reimbursable.
(3) A nonreturnable mobile home park entrance fee is reimbursable to
the extent it does not exceed the fee at a comparable mobile home park,
if the person is displaced from a mobile home park or the Agency
determines that payment of the fee is necessary to effect relocation.
49 CFR 24.503 Replacement housing payment for 180-day mobile
homeowner-occupants.
(a) A displaced owner-occupant of a mobile home is entitled to a
replacement housing payment, not to exceed $22,500, under 24.401 if:
(1) The person both owned the displacement mobile home and occupied
it on the displacement site for at least 180 days immediately prior to
the initiation of negotiations;
(2) The person meets the other basic eligibility requirements at
24.401(a); and
(3) The Agency acquires the mobile home and/or mobile home site, or
the mobile home is not acquired by the Agency but the owner is displaced
from the mobile home because the Agency determines that the mobile home:
(i) Is not and cannot economically be made decent, safe, and
sanitary; or
(ii) Cannot be relocated without substantial damage or unreasonable
cost; or
(iii) Cannot be relocated because there is no available comparable
replacement site; or
(iv) Cannot be relocated because it does not meet mobile home park
entrance requirements.
(b) If the mobile home is not acquired, and the Agency determines
that it is not practical to relocate it, the acquisition cost of the
displacement dwelling used when computing the price differential amount,
described at 24.401(c), shall include the salvage value or trade-in
value of the mobile home, whichever is higher.
49 CFR 24.504 Replacement housing payment for 90-day mobile home
occupants.
A displaced tenant or owner-occupant of a mobile home is eligible for
a replacement housing payment, not to exceed $5,250, under 24.402 if:
(a) The person actually occupied the displacement mobile home on the
displacement site for at least 90 days immediately prior to the
initiation of negotiations;
(b) The person meets the other basic eligibility requirements at
24.402(a); and
(c) The Agency acquires the mobile home and/or mobile home site, or
the mobile home is not acquired by the Agency but the owner or tenant is
displaced from the mobile home because of one of the circumstances
described at 24.503(a)(3).
49 CFR 24.505 Additional rules governing relocation payments to mobile
home occupants.
(a) Replacement housing payment based on dwelling and site. Both the
mobile home and mobile home site must be considered when computing a
replacement housing payment. For example, a displaced mobile home
occupant may have owned the displacement mobile home and rented the site
or may have rented the displacement mobile home and owned the site.
Also, a person may elect to purchase a replacement mobile home and rent
a replacement site, or rent a replacement mobile home and purchase a
replacement site. In such cases, the total replacement housing payment
shall consist of a payment for a dwelling and a payment for a site, each
computed under the applicable section in subpart E. However, the total
replacement housing payment under subpart E shall not exceed the maximum
payment (either $22,500 or $5,250) permitted under the section that
governs the computation for the dwelling. (See also 24.403(b).)
(b) Cost of comparable replacement dwelling -- (1) If a comparable
replacement mobile home is not available, the replacement housing
payment shall be computed on the basis of the reasonable cost of a
conventional comparable replacement dwelling.
(2) If the Agency determines that it would be practical to relocate
the mobile home, but the owner-occupant elects not to do so, the Agency
may determine that, for purposes of computing the price differential
under 24.401(c), the cost of a comparable replacement dwelling is the
sum of:
(i) The value of the mobile home,
(ii) The cost of any necessary repairs or modifications, and
(iii) The estimated cost of moving the mobile home to a replacement
site.
(c) Initiation of negotiations. If the mobile home is not actually
acquired, but the occupant is considered displaced under this part, the
''initiation of negotiations'' is the initiation of negotiations to
acquire the land, or, if the land is not acquired, the written
notification that he or she is a displaced person under this part.
(d) Person moves mobile home. If the owner is reimbursed for the
cost of moving the mobile home under this part, he or she is not
eligible to receive a replacement housing payment to assist in
purchasing or renting a replacement mobile home. The person may,
however, be eligible for assistance in purchasing or renting a
replacement site.
(e) Partial acquisition of mobile home park. The acquisition of a
portion of a mobile home park property may leave a remaining part of the
property that is not adequate to continue the operation of the park. If
the Agency determines that a mobile home located in the remaining part
of the property must be moved as a direct result of the project, the
owner and any tenant shall be considered a displaced person who is
entitled to relocation payments and other assistance under this part.
49 CFR 24.505 Subpart G -- Certification
49 CFR 24.601 Purpose.
This subpart permits a State agency to fulfill its responsibilities
under the Uniform Act by certifying that it shall operate in accordance
with State laws and regulations which shall accomplish the purpose and
effect of the Uniform Act, in lieu of providing the assurances required
by 24.4 of this part.
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.602 Certification application.
(a) General. (1) The State governor, or his or her designee, on
behalf of any State agency or agencies may apply for certification in
accordance with this section.
(2) The governor may designate a lead agency to administer
certification in accordance with this section.
(b) Responsibilities of State agency -- (1) The State agency's
application shall be submitted to the governor, or his or her designee,
for approval or disapproval.
(2) The State agency application shall contain a statement that the
State agency shall carry out the responsibilities imposed by the Uniform
Act. The State agency application shall include a copy of the State
laws and regulations which shall accomplish the purpose and effect of
the Uniform Act.
(c) Responsibilities of governor or his or her designee. (1) The
governor, or his or her designee, shall approve or disapprove the State
agency's application.
(2) The governor, or his or her designee, shall have discretion to
disapprove any State agency application.
(3) The governor, or his or her designee, shall analyze State law and
regulations and shall certify that they accomplish the purpose and
effect of the Uniform Act.
(4) The governor, or his or her designee, shall determine in writing
whether the State agency's professional staffing is adequate to fully
implement the State law and regulations.
(5) If the State agency's application is approved by the governor, or
his or her designee, it shall be transmitted to the Federal agency
providing financial assistance to the State agency, with an information
copy to the Federal lead agency.
(6) When a determination is received from the Federal funding agency,
the governor, or his or her designee, shall notify the State agency.
(d) Responsibilities of Federal funding agency. (1) The Federal
funding agency shall accept the approved application for certification
provided by the governor or his or her designee and shall not conduct an
independent review unless or until future monitoring or other
appropriate indicators reveal program deficiencies originating
therefrom.
(2) The Federal funding agency shall transmit all complete, approved
applications, for certification to the Federal lead agency.
(3) At the same time as transmission to the Federal lead agency or
during the public comment period, the Federal funding agency shall
provide to the lead agency its written assessment of the State agency's
capabilities to operate under certification.
(4) The Federal funding agency shall promptly notify the governor, or
his or her designee, of the Federal lead agency's determination
described in paragraph (e)(2) of this section.
(5) The Federal funding agency shall recognize the State agency's
certification within 30 days of the Federal lead agency's finding.
(e) Responsibilities of Federal lead agency. (1) The lead agency
shall:
(i) Accept the approval provided by the governor, or his or her
designee, and shall not conduct an independent review, except as
provided for in paragraphs (e)(1)(ii), (iii) and (iv) of this section,
unless future monitoring or other appropriate indicators reveal program
deficiencies originating therefrom;
(ii) Analyze the extent to which the provisions of the applicable
State laws and regulations accomplish the purpose and effect of the
Uniform Act, with particular emphasis on the definition of a displaced
person, the categories of assistance required, and the levels of
assistance provided to persons in such categories;
(iii) Provide a 60-day period of public review and comment, and
solicit and consider the views of interested general purpose local
governments within the State, as well as the views of interested Federal
and State agencies and consider all comments received as a result; and
(iv) Consider any extraordinary information it believes to be
relevant.
(2) After considering all the information provided, the lead agency
shall either make a finding that the State agency will carry out the
Federal agency's Uniform Act responsibility in accordance with State
laws and regulations which shall accomplish the same purpose and effect
as the Uniform Act, or shall make a determination that a finding cannot
be made; and shall so inform the Federal funding agency.
49 CFR 24.603 Monitoring and corrective action.
(a) The Federal lead agency shall, in coordination with other Federal
agencies, monitor from time to time State agency implementation of
programs or projects conducted under the certification process and the
State agency shall make available any information required for this
purpose.
(b) A Federal agency that has accepted a State agency's certification
pursuant to this subpart should withhold its approval of any of its
Federal financial assistance to any project, program, or activity, in
progress or to be undertaken by such State agency, if it is found by the
Federal agency that the State agency has failed to comply with the
applicable State law and regulations implementing those provisions of
the Uniform Act for which the State agency would otherwise have provided
the assurances required by sections 210 and 305 of the Uniform Act. The
Federal agency may withhold Federal financial assistance if the
certifying State agency fails to comply with the applicable State law
and regulations implementing other provisions of the Uniform Act. The
Federal agency shall notify the lead agency at least 15 days prior to
any decision to withhold funds under this subpart. The lead agency may
consult with the Federal agency upon receiving such notification. The
lead agency will also inform other Federal agencies which have accepted
certification under this subpart from the same State agency of the
pending action.
(c) A Federal agency may, after consultation with the lead agency,
and notice to and consultation with the governor, or his or her
designee, rescind any previous approval provided under this subpart if
the certifying State agency fails to comply with its certification or
with applicable State law and regulations. The Federal agency shall
initiate consultation with the lead agency at least 30 days prior to any
decision to rescind approval of a certification under this subpart. The
lead agency will also inform other Federal agencies which have accepted
a certification under this subpart from the same State agency, and will
take whatever other action that may be appropriate.
(d) Section 103(b)(2) of the Uniform Act, as amended, requires that
the head of the lead agency report biennially to the Congress on State
agency implementation of section 103. To enable adequate preparation of
the prescribed biennial report, the lead agency may require periodic
information or data from affected Federal or State agencies.
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.603 Appendix A to Part 24 -- Additional Information
49 CFR 24.603 Pt. 24, App. A
This appendix provides additional information to explain the intent
of certain provisions of this part.
49 CFR 24.603 Subpart A -- General
49 CFR 24.603 Section 24.2 Definitions
Section 24.2(d)(2) Definition of comparable replacement
dwelling. The requirement in 24.2(d)(2) that a comparable replacement
dwelling be ''functionally equivalent'' to the displacement dwelling
means that it must perform the same function, provide the same utility,
and be capable of contributing to a comparable style of living as the
displacement dwelling. While it need not possess every feature of the
displacement dwelling, the principal features must be present.
For example, if the displacement dwelling contains a pantry and a
similar dwelling is not available, a replacement dwelling with ample
kitchen cupboards may be acceptable. Insulated and heated space in a
garage might prove an adequate substitute for basement workshop space.
A dining area may substitute for a separate dining room. Under some
circumstances, attic space could substitute for basement space for
storage purposes, and vice versa.
Only in unusual circumstances may a comparable replacement dwelling
contain fewer rooms or, consequentially, less living space than the
displacement dwelling. Such may be the case when a decent, safe, and
sanitary replacement dwelling (which by definition is ''adequate to
accommodate'' the displaced person) may be found to be ''functionally
equivalent'' to a larger but very run-down substandard displacement
dwelling.
Section 24.2(d)(7) requires that a comparable replacement dwelling
for a person who is not receiving assistance under any government
housing program before displacement must be currently available on the
private market without any subsidy under a government housing program.
A public housing unit may qualify as a comparable replacement
dwelling only for a person displaced from a public housing unit; a
privately-owned dwelling with a housing program subsidy tied to the unit
may qualify as a comparable replacement dwelling only for a person
displaced from a similarly subsidized unit or public housing; a housing
program subsidy to a person (not tied to the building), such as a HUD
Section 8 Existing Housing Program Certificate or a Housing Voucher, may
be reflected in an offer of a comparable replacement dwelling to a
person receiving a similar subsidy or occupying a privately-owned
subsidized unit or public housing unit before displacement.
However, nothing in this part prohibits an Agency from offering, or
precludes a person from accepting, assistance under a government housing
program, even if the person did not receive similar assistance before
displacement. However, the Agency is obligated to inform the person of
his or her options under this part. (If a person accepts assistance
under a government housing program, the rental assistance payment under
24.402 would be computed on the basis of the person's actual
out-of-pocket cost for the replacement housing.)
Section 24.2(g)(2) Persons not displaced. Section 24.2(g)(2)(iv)
recognizes that there are circumstances where the acquisition of real
property takes place without the intent or necessity that an occupant of
the property be permanently displaced. Because such occupants are not
considered ''displaced persons'' under this part, great care must be
exercised to ensure that they are treated fairly and equitably. For
example, if the tenant-occupant of a dwelling will not be displaced, but
is required to relocate temporarily in connection with the project, the
temporarily-occupied housing must be decent, safe, and sanitary and the
tenant must be reimbursed for all reasonable out-of-pocket expenses
incurred in connection with the temporary relocation, including moving
expenses and increased housing costs during the temporary relocation.
It is also noted that any person who disagrees with the Agency's
determination that he or she is not a displaced person under this part
may file an appeal in accordance with 24.10.
Section 24.2(k) Initiation of negotiations. This section of the
part; provides a special definition for acquisitions and displacements
under Public Law 96-510 or Superfund. These activities differ under
Superfund in that relocation may precede acquisition, the reverse of the
normal sequence. Superfund is a program designed to clean up hazardous
waste sites. When such a site is discovered, it may be necessary, in
certain limited circumstances, to alert the public to the danger and to
the advisability of moving immediately. If a decision is made later to
permanently relocate such persons, those who had moved earlier would no
longer be on site when a formal, written offer to acquire the property
was made and thus would lose their eligibility for a replacement housing
payment. In order to prevent this unfair outcome, we have provided a
definition which is based on the public health advisory or announcement
of permanent relocation.
49 CFR 24.603 Section 24.3 No Duplication of Payments
This section prohibits an Agency from making a payment to a person
under these regulations that would duplicate another payment the person
receives under Federal, State, or local law. The Agency is not required
to conduct an exhaustive search for such other payments; it is only
required to avoid creating a duplication based on the Agency's knowledge
at the time a payment under these regulations is computed.
49 CFR 24.603 Section 24.9 Recordkeeping and Reports
Section 24.9(c) Reports. This paragraph allows Federal agencies
to require the submission of a report on activities under the Uniform
Act no more frequently than once every three years. The report, if
required, will cover activities during the Federal fiscal year
immediately prior to the submission date. In order to minimize the
administrative burden on Agencies implementing this part, a basic report
form (see appendix B of this part) has been developed which, with only
minor modifications, would be used in all Federal and federally-assisted
programs or projects.
49 CFR 24.603 Subpart B -- Real Property Acquisition
49 CFR 24.603 Section 24.101 Applicability of Acquisition Requirements
Section 24.101(b) Less-than-full-fee interest in real property. This
provision provides a benchmark beyond which the requirements of the
subpart clearly apply to leases. However, the Agency may apply the
regulations to any less-than-full-fee acquisition which is short of 50
years but which in its judgment should be covered.
49 CFR 24.603 Section 24.102 Basic Acquisition Policies
Section 24.102(d) Establishment of offer of just compensation. The
initial offer to the property owner may not be less than the amount of
the Agency's approved appraisal, but may exceed that amount if the
Agency determines that a greater amount reflects just compensation for
the property.
Section 24.102(f) Basic negotiation procedures. It is intended that
an offer to an owner be adequately presented, and that the owner be
properly informed. Personal, face-to-face contact should take place, if
feasible, but this section is not intended to require such contact in
all cases.
Section 24.102(i) Administrative settlement. This section provides
guidance on administrative settlement as an alternative to judicial
resolution of a difference of opinion on the value of a property, in
order to avoid unnecessary litigation and congestion in the courts.
All relevant facts and circumstances should be considered by an
Agency official delegated this authority. Appraisers, including
reviewing appraisers, must not be pressured to adjust their estimate of
value for the purpose of justifying such settlements. Such action would
invalidate the appraisal process.
Section 24.102(j) Payment before taking possession. It is intended
that a right-of-entry for construction purposes be obtained only in the
exceptional case, such as an emergency project, when there is no time to
make an appraisal and purchase offer and the property owner is agreeable
to the process.
Section 24.102(m) Fair rental. Section 301(6) of the Uniform Act
limits what an Agency may charge when a former owner or previous
occupant of a property is permitted to rent the property for a short
term or when occupancy is subject to termination by the Agency on short
notice. Such rent may not exceed ''the fair rental value * * * to a
short-term occupier.'' Generally, the Agency's right to terminate
occupancy on short notice (whether or not the renter also has that
right) supports the establishment of a lesser rental than might be found
in a longer, fixed-term situation.
49 CFR 24.603 Section 24.103 Criteria for Appraisals
Section 24.103(a) Standards of appraisal. In paragraph (a)(3) of
this section, it is intended that all relevant and reliable approaches
to value be utilized. However, where an Agency determines that the
market approach will be adequate by itself because of the type of
property being appraised and the availability of sales data, it may
limit the appraisal assignment to the market approach.
Section 24.103(b) Influence of the project on just compensation. As
used in this section, the term ''project'' is intended to mean an
undertaking which is planned, designed, and intended to operate as a
unit.
Because of the public knowledge of the proposed project, property
values may be affected. A property owner should not be penalized
because of a decrease in value caused by the proposed project nor reap a
windfall at public expense because of increased value created by the
proposed project.
Section 24.103(e) Conflict of interest. The overall objective is to
minimize the risk of fraud and mismanagement and to promote public
confidence in Federal and federally-assisted land acquisition practices.
Recognizing that the costs may outweigh the benefits in some
circumstances, 24.103(e) provides that the same person may both
appraise and negotiate an acquisition, if the value is $2,500 or less.
However, it should be noted that all appraisals must be reviewed in
accordance with 24.104. This includes appraisals of real property
valued at $2,500, or less.
49 CFR 24.603 Section 24.104 Review of appraisals
This section recognizes that Agencies differ in the authority
delegated to the review appraiser. In some cases the reviewer
establishes the amount of the offer to the owner and in other cases the
reviewer makes a recommendation which is acted on at a higher level. It
is also within Agency discretion to decide whether a second review is
needed if the first review appraiser establishes a value different from
that in the appraisal report or reports on a property.
Before acceptance of an appraisal, the review appraiser must
determine that the appraiser's documentation, including valuation data
and the analyses of that data, demonstrates the soundness of the
appraiser's opinion of value. The qualifications of the review
appraiser and the level of explanation of the basis for the reviewer's
recommended or approved value depend on the complexity of the appraisal
problem. For a low value property requiring an uncomplicated valuation
process, the reviewer's approval, endorsing the appraiser's report, may
satisfy the requirement for the reviewer's statement.
49 CFR 24.603 Section 24.106 Expenses Incidental to Transfer of Title
to the Agency
Generally, the Agency is able to pay such incidental costs directly
and, where feasible, is required to do so. In order to prevent the
property owner from making unnecessary out-of-pocket expenditures and to
avoid duplication of expenses, the property owner should be informed
early in the acquisition process of the Agency's intent to make such
arrangements. In addition, it is emphasized that such expenses must be
reasonable and necessary.
49 CFR 24.603 Subpart C -- General Relocation Requirements
49 CFR 24.603 Section 24.204 Availability of Comparable Replacement
Dwelling Before Displacement
Section 24.204 (a) General. This provision requires that no one may
be required to move from a dwelling without one comparable replacement
dwelling having been made available. In addition, 24.204(a) requires
that, ''Where possible, three or more comparable replacement dwellings
shall be made available.'' Thus the basic standard for the number of
referrals required under this section is three. Only in situations
where three comparable replacement dwellings are not available (e.g.,
when the local housing market does not contain three comparable
dwellings) may the Agency make fewer than three referrals.
49 CFR 24.603 Section 24.205 Relocation Assistance Advisory Services
Section 24.205(c)(2)(ii)(C) is intended to emphasize that if the
comparable replacement dwellings are located in areas of minority
concentration, minority persons should, if possible, also be given
opportunities to relocate to replacement dwellings not located in such
areas.
49 CFR 24.603 Section 24.207 General Requirements -- Claims for
Relocation Payments
Section 24.207(a) allows an Agency to make a payment for low cost or
uncomplicated moves without additional documentation, as long as the
payment is limited to the amount of the lowest acceptable bid or
estimate, as provided for in 24.303(c).
49 CFR 24.603 Subpart D -- Payment for Moving and Related Expenses
49 CFR 24.603 Section 24.306 Fixed Payment for Moving Expenses --
Nonresidential Moves
Section 24.306(d) Nonprofit organizations. Gross revenues may
include membership fees, class fees, cash donations, tithes, receipts
from sales or other forms of fund collection that enables the non-profit
organization to operate. Administrative expenses are those for
administrative support such as rent, utilities, salaries, advertising
and other like items as well as fundraising expenses. Operating
expenses for carrying out the purposes of the non-profit organization
are not included in administrative expenses. The monetary receipts and
expense amounts may be verified with certified financial statements or
financial documents required by public agencies.
49 CFR 24.603 Section 24.307 Discretionary Utility Relocation Payments
Section 24.307(c) describes the issues which must be agreed to
between the displacing agency and the utility facility owner in
determining the amount of the relocation payment. To facilitate and aid
in reaching such agreement, the practices in the Federal Highway
Administration regulation, 23 CFR part 645, subpart A, Utility
Relocations, Adjustments and Reimbursement, should be followed.
49 CFR 24.603 Subpart E -- Replacement Housing Payments
49 CFR 24.603 Section 24.401 Replacement Housing Payment for 180-Day
Homeowner-Occupants
Section 24.401(a)(2). The provision for extending eligibility for a
replacement housing payment beyond the one year period for good cause
means that an extension may be granted if some event beyond the control
of the displaced person such as acute or life threatening illness, bad
weather preventing the completion of construction of a replacement
dwelling or other like circumstances should cause delays in occupying a
decent, safe, and sanitary replacement dwelling.
Section 24.401(c) Price differential. The provision in
24.401(c)(4)(iii) to use the current fair market value for residential
use does not mean the Agency must have the property appraised. Any
reasonable method for arriving at the fair market va1ue may be used.
Section 24.401(d) Increased mortgage interest costs. The provision
in 24.401(d) set forth the factors to be used in computing the payment
that will be required to reduce a person's replacement mortgage (added
to the downpayment) to an amount which can be amortized at the same
monthly payment for principal and interest over the same period of time
as the remaining term on the displacement mortgages. This payment is
commonly known as the ''buydown.''
The remaining principal balance, the interest rate, and monthly
principal and interest payments for the old mortgage aa well as the
interest rate, points and term for the new mortgage must be known to
compute the increased mortgage interest costs. If the combination of
interest and points for the new mortgage exceeds the current prevailing
fixed interest rate and points for conventional mortgages and there is
no justification for the excessive rate, then the current prevailing
fixed interest rate and points shall be used in the computations.
Justification may be the unavailability of the current prevailing rate
due to the amount of the new mortgage, credit difficulties, or other
similar reasons.
Remaining term of the old mortgage is determined to be 174 months.
(Determining, or computing, the actual remaining term is more reliable
than using the data supplied by the mortgagee). However, if it is
shorter, use the term of the new mortgage and compute the needed monthly
payment.
Amount to be financed to maintain monthly payments of $458.22 at 10%
-- $42,010.18
If the new mortgage actually obtained is less than the computed
amount for a new mortgage ($42,010.18), the buydown shall be prorated
accordingly. If the actual mortgage obtained in our example were
$35,000, the buydown payment would be $7,706.57 ($35,000 by $42,010.18
= .8331; $9,250.13 .83 = $7,706.57).
The Agency is obligated to inform the person of the approximate
amount of this payment and that he or she must obtain a mortgage of at
least the same amount as the old mortgage and for at least the same term
in order to receive the full amount of this payment. The displacee is
also to be advised of the interest rate and points used to calculate the
payment.
49 CFR 24.603 Section 24.402 Replacement Housing Payment for 90-Day
Occupants
The downpayment assistance provisions in 24.402(c) are intended to
limit such assistance to the amount of the computed rental assistance
payment for a tenant or an eligible homeowner. It does, however,
provide the latitude for Agency discretion in offering downpayment
assistance which exceeds the computed rental assistance payment, up to
the $5,250 statutory maximum. This does not mean, however, that such
Agency discretion may be exercised in a selective or discriminatory
fashion. The displacing agency should develop a policy which affords
equal treatment for persons in like circumstances and this policy should
be applied uniformly throughout the Agency's programs or projects. It
is recommended that displacing agencies coordinate with each other to
reach a consensus on a uniform procedure for the State and/or the local
jurisdiction.
For purposes of this section, the term downpayment means the
downpayment ordinarily required to obtain conventional loan financing
for the decent, safe, and sanitary dwelling actually purchased and
occupied. However, if the downpayment actually required of a displaced
person for the purchase of the replacement dwelling exceeds the amount
ordinarily required, the amount of the downpayment may be the amount
which the Agency determines is necessary.
49 CFR 24.603 Section 24.403 Additional Rules Governing Replacement
Housing Payments
Section 24.403(a)(1). The procedure for adjusting the asking
price of comparable replacement dwellings requires that the agency
provide advisory assistance to the displaced person concerning
negotiations so that he or she may enter the market as a knowledgeable
buyer. If a displaced person elects to buy one of the selected
comparables, but cannot acquire the property for the adjusted price, it
is appropriate to increase the replacement housing payment to the actual
purchase amount.
49 CFR 24.603 Section 24.404 Replacement Housing of Last Resort
Section 24.404(b) Basic rights of persons to be displaced. This
paragraph affirms the right of a 180-day homeowner-occupant, who is
eligible for a replacement housing payment under 24.401, to a
reasonable opportunity to purchase a comparable replacement dwelling.
However, it should be read in conjunction with the definition of ''owner
of a dwelling'' at 24.2(p). The Agency is not required to provide
persons owning only a fractional interest in the displacement dwelling a
greater level of assistance to purchase a replacement dwelling than the
Agency would be required to provide such persons if they owned fee
simple title to the displacement dwelling. If such assistance is not
sufficient to buy a replacement dwelling, the Agency may provide
additional purchase assistance or rental assistance.
Section 24.404(c) Methods of providing comparable replacement
housing. The use of cost effective means of providing comparable
replacement housing is implied throughout the subpart. The term
''reasonable cost'' is used here to underline the fact that while
innovative means to provide housing are encouraged, they should be
cost-effective.
Section 24.404(c)(2) permits the use of last resort housing, in
special cases, which may involve variations from the usual methods of
obtaining comparability. However, it should be specially noted that
such variation should never result in a lowering of housing standards
nor should it ever result in a lower quality of living style for the
displaced person. The physical characteristics of the comparable
replacement dwelling may be dissimilar to those of the displacement
dwelling but they may never be inferior.
One example might be the use of a new mobile home to replace a very
substandard conventional dwelling in an area where comparable
conventional dwellings are not available.
Another example could be the use of a superior, but smaller decent,
safe and sanitary dwelling to replace a large, old substandard dwelling,
only a portion of which is being used as living quarters by the
occupants and no other large comparable dwellings are available in the
area.
49 CFR 24.603 Subpart F -- Mobile Homes
49 CFR 24.603 Section 24.503 Replacement Housing Payment for 180-Day
Mobile Homeowner-Occupants
A 180-day owner-occupant who is displaced from a mobile home on a
rented site may be eligible for a replacement housing payment for a
dwelling computed under 24.401 and a replacement housing payment for a
site computed under 24.402. A 180-day owner-occupant of both the mobile
home and the site, who relocates the mobile home, may be eligible for a
replacement housing payment under 24.401 to assist in the purchase of a
replacement site or, under 24.402, to assist in renting a replacement
site.
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.603 Appendix B to Part 24 -- Statistical Report Form
49 CFR 24.603 Pt. 24, App. B
This appendix sets forth the statistical information collected from
Agencies in accordance with 24.9(c).
49 CFR 24.603 General
1. Report coverage. This report covers all relocation and real
property acquisition activities under a Federal or a federally assisted
project or program subject to the provisions of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, as
amended by Public Law 100-17, 101 Stat. 132.
2. Report period. Activities shall be reported on a Federal fiscal
year basis, i.e., October 1 through September 30.
3. Where and when to submit report. Submit an original and two
copies of this report to (Name and Address of Federal Agency) as soon as
possible after September 30, but NOT LATER THAN NOVEMBER 15.
4. How to report relocation payments. The full amount of a
relocation payment shall be reported as if disbursed in the year during
which the claim was approved, regardless of whether the payment is to be
paid in installments.
5. How to report dollar amounts. Round off all money entries in
Parts B and C to the nearest dollar.
6. Statutory references. The references in Part B indicate the
section of the Uniform Act that authorizes the cost.
49 CFR 24.603 Part A. Persons displaced
Report in Part A the number of persons (''households,'' ''businesses,
including nonprofit organizations,'' and ''farms'') who were permanently
displaced during the fiscal year by project or program activities and
moved to their replacement dwelling or location. This includes
businesses, nonprofit organizations and farms which, upon displacement,
discontinued operations. The category ''households'' includes all
families and individuals. A family shall be reported as ''one''
household, not by the number of people in the family unit. Persons
shall be reported according to their status as ''owners'' or ''tenants''
of the property from which displaced.
49 CFR 24.603 Part B. Relocation payments and expenses
Columns (A) and (B). Report in Column (A) the number of
displacements during the report year. Report in Column (B) the total
amount represented by the displacements reported in Column (A).
Line 7A is a new line item for reporting the business reestablishment
expense payment.
Lines 7A and 9, Column (B). Report in Column (B) the amount of costs
that were included in the total amount approved on Lines 6 and 8, Column
(B).
Lines 12 A and B. Report in Column (A) the number of households
displaced by project or program activities which were provided
assistance in accordance with section 206(a) of the Uniform Act. Report
in Column (B) the total financial assistance under section 206(a)
allocable to the households reported in Column (A). (If a household
received financial assistance under section 203 or section 204 as well
as under section 206(a) of the Uniform Act, report the household as a
displacement in Column (A), but in Column (B) report only the amount of
financial assistance allocable to section 206(a). For example, if a
tenant-household receives a payment of $7,000 to rent a replacement
dwelling, the sum of $5,250 shall be included on Line 10, Column (B),
and $1,750 shall be included on Line 12B, Column (B).)
Line 13. Report on Line 13 all administrative costs incurred during
the report year in connection with providing relocation advisory
assistance and services under section 205 of the Uniform Act.
Line 15. Report on Line 15 the total number of relocation appeals
filed during the fiscal year by aggrieved persons.
49 CFR 24.603 Part C. Real property acquisition subject to Uniform Act
Line 16, Columns (A) and (B). Report in Column (A) all parcels
acquired during the report year where title or possession was vested in
the acquiring agency during the reporting period. (Include parcels
acquired without Federal financial assistance, if there was or will be
Federal financial assistance in other phases of the project or program.)
Report in Column (B) the total of the amounts paid, deposited in court,
or otherwise made available to a property owner pursuant to applicable
law in order to vest title or possession in the acquiring agency.
Line 17. Report on Line 17 the number of parcels reported on Line 16
that were acquired by condemnation where price disagreement was
involved.
Insert Illus. 0216
(54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989)
49 CFR 24.603 PART 25 -- (RESERVED)
49 CFR 24.603 Pt. 27
49 CFR 24.603 PART 27 -- NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITTING FROM FEDERAL FINANCIAL ASSISTANCE
49 CFR 24.603 Subpart A -- General
Sec.
27.1 Purpose.
27.3 Applicability.
27.5 Definitions.
27.7 Discrimination prohibited.
27.9 Assurance required.
27.11 Remedial action, voluntary action, and compliance planning.
27.13 Designation of responsible employee and adoption of grievance
procedures.
27.15 Notice.
27.17 Effect of State or local law.
27.19 Compliance with Americans with Disabilities Act requirements
and UMTA policy.
49 CFR 24.603 Subpart B -- Program Accessibility Requirements in
Specific Operating Administration Programs: Airports, Railroads, and
Highways
27.71 Federal Aviation Administration -- airports.
27.75 Federal Highway Administration -- highways.
49 CFR 24.603 Subpart C -- Enforcement
27.121 Compliance information.
27.123 Conduct of investigations.
27.125 Compliance procedure.
27.127 Hearings.
27.129 Decisions and notices.
Authority: Sec. 504 of the Rehabilitation Act of 1973, as amended
(29 U.S.C. 794); secs. 16(a) and 16(d) of the Urban Mass Transportation
Act of 1964, as amended (49 U.S.C. 16(a) and 16(d); sec. 165(b) of the
Federal-aid Highway Act of 1973 (49 U.S.C. 142 nt.); the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101-12213; and 49 U.S.C. 322.
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, in this part,
the references to 27.67(d) were changed to 27.3(b), effective October
7, 1991.
Source: 44 FR 3l468, May 31, l979, unless otherwise noted.
49 CFR 24.603 Subpart A -- General
49 CFR 27.1 Purpose.
The purpose of this part is to carry out the intent of section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794) as amended, to the end
that no otherwise qualified handicapped individual in the United States
shall, solely by reason of his or her handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.
49 CFR 27.3 Applicability.
(a) This part applies to each recipient of Federal financial
assistance from the Department of Transportation and to each program or
activity that receives or benefits from such assistance.
(b) Design, construction, or alteration of buildings or other fixed
facilities by public entities subject to part 37 of this title shall be
in conformance with appendix A to part 37 of this title. All other
entities subject to section 504 shall design, construct or alter a
building, or other fixed facilities shall be in conformance with either
appendix A to part 37 of this title or the Uniform Federal Accessibility
Standards, 41 CFR part 101-19 subpart 101-19.6, appendix A.
(44 FR 31468, May 31, 1979, as amended at 56 FR 45621, Sept. 6, 1991)
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, the text to
27.3 was designated as paragraph (a) and a new paragraph (b) was added,
effective October 7, 1991.
49 CFR 27.5 Definitions.
As used in this part:
Act means the Rehabilitation Act of 1973, Public Law 93-112, as
amended.
Air Carrier Airport means an airport serviced by a certificated air
carrier unless such airport is served solely by an air carrier which
provides: (1) Passenger service at that airport in aircraft having a
maximum passenger capacity of less than 56 passengers, or (2) cargo
service in air transportation at that airport solely with aircraft
having a maximum payload capacity of less than 18,000 pounds; provided,
however, that if at any such airport, Federal funds are made available
for terminal facilities, it shall be deemed to be an air carrier
airport.
Applicant means one who submits an application, request, or plan to
be approved by a Departmental official or by a primary recipient as a
condition to eligibility for Federal financial assistance, and
application means such an application, request, or plan.
Department means the Department of Transportation.
Discrimination means denying handicapped persons the opportunity to
participate in or benefit from any program or activity receiving Federal
financial assistance.
Facility means all or any portion of buildings, structures, vehicles,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
Federal financial assistance means any grant, loan, contract (other
than a procurement contract or a contract of insurance or guaranty), or
any other arrangement by which the Department provides or otherwise
makes available assistance in the form of:
(a) Funds;
(b) Services of Federal personnel; or
(c) Real or personal property or any interest in, or use of such
property, including:
(1) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(2) 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.
Handicapped person means (1) any person who (a) has a physical or
mental impairment that substantially limits one or more major life
activities, (b) has a record of such an impairment, or (c) is regarded
as having such an impairment. (2) As used in this definition, the
phrase:
(a) Physical or mental impairment means (i) any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory, including speech
organs; cardiovascular, reproductive; digestive; genito-urinary;
hemic and lymphatic; skin; and endocrine; or (ii) any mental or
psychological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning
disabilities. The term physical or mental impairment includes, but is
not limited to, such diseases and conditions as orthopedic, visual,
speech, and hearing impairments; cerebral palsy; epilepsy; muscular
dystrophy; multiple sclerosis; cancer; heart disease; mental
retardation; emotional illness; drug addiction; and alcoholism.
(b) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(c) Has a record of such an impairment means has a history of, or has
been classified, or misclassified, as having a mental or physical
impairment that substantially limits one or more major life activities.
(d) Is regarded as having an impairment means:
(1) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a recipient as
constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits
major life activity only as a result of the attitudes of others toward
such an impairment; or
(3) Has none of the impairments set forth in paragraph (1) of this
definition, but is treated by a recipient as having such an impairment.
Head of Operating Administration means the head of an operating
administration within the Department (U.S. Coast Guard, Federal Highway
Administration, Federal Aviation Administration, Federal Railroad
Administration, National Highway Traffic Safety Administration, Urban
Mass Transportation Administration, and Research and Special Programs
Administration) providing Federal financial assistance to the recipient.
Primary recipient means any recipient that is authorized or required
to extend Federal financial assistance from the Department to another
recipient for the purpose of carrying out a program.
Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation and within normal safety requirements, can
perform the essential functions of the job in question, but the term
does not include any individual who is an alcoholic or drug abuser whose
current use of alcohol or drugs prevents such person 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 the safety of others; and
(2) With respect to other activities, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
Recipient means any State, territory, possession, the District of
Columbia, or Puerto Rico, or any political subdivision thereof, or
instrumentality thereof, any public or private agency, institution,
organization, or other entity, or any individual in any State,
territory, possession, the District of Columbia, or Puerto Rico, to whom
Federal financial assistance from the Department is extended directly or
through another recipient, for any Federal program, including any
successor, assignee, or transferee thereof, but such term does not
include any ultimate beneficiary under any such program.
Secretary means the Secretary of Transportation.
Section 504 means section 504 of the Act.
Special service system means a transportation system specifically
designed to serve the needs of persons who, by reason of handicap, are
physically unable to use bus systems designed for use by the general
public. Special service is characterized by the use of vehicles smaller
than a standard transit bus which are usable by handicapped persons,
demand-responsive service, point of origin to point of destination
service, and flexible routing and scheduling.
(44 FR 31468, May 31, 1979, as amended by Amdt. 1, 46 FR 37492, July
20, 1981; Amdt. 27-3, 51 FR 19017, May 23, 1986; 56 FR 45621, Sept. 6,
1991)
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, 27.5 was
amended by removing the definitions of ''accessible,'' ''closed
station,'' ''flag stop,'' ''mass transportation,'' ''mixed system,''
''open station,'' ''passenger,'' and ''urbanized area,'' effective
October 7, 1991. For the convenience of the user, the superseded text
appears as follows:
27.5 Definitions.
Accessible means (a) with respect to new facilities, (1) conforming
to the accessibility standards referenced in 27.3(b) of this part, with
respect to buildings and facilities to which these standards are
applicable; and (2) with respect to vehicles other moving conveyances,
(or fixed facilities to which the standards referenced in 27.3(b) of
this part do not apply,) able to be entered and used by a handicapped
person;
Closed station means a station at which no services are provided to
passengers by station attendants and at which trains make regularly
scheduled stops.
Flag stop means any station which is not a regularly scheduled stop
but at which trains will stop to entrain or detrain passengers only on
signal or advance notice.
Mass transportation or public transportation means transportation by
bus, or rail, or other conveyance, either publicly or privately owned,
which provides to the public general or special service (but not
including school buses or charter or sightseeing service) on a regular
and continuing basis.
Mixed system means a transportation system that provides accessible
bus service to handicapped persons in certain areas or during certain
hours and provides special service to handicapped persons in the other
areas or during the other hours in which the transportation system
operates.
Open station means a station at which passengers may make
reservations and purchase tickets and where passenger assistance is
available for entraining and detraining passengers on trains which make
regularly scheduled stops.
Passenger means anyone, except a working crew member, who travels on
a vehicle the service of which is governed by these regulations.
Urbanized area means an area so designated by the Bureau of Census,
within boundaries which shall be fixed by responsible State and local
officials in cooperation with each other, subject to approval by the
Secretary, and which shall at a minimum, in case of any such area,
encompass the entire urbanized area within a State as designated by the
Bureau of Census.
49 CFR 27.7 Discrimination prohibited.
(a) General. No qualified handicapped person shall, solely by reason
of his handicap, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity that receives or benefits from Federal financial
assistance administered by the Department of Transportation.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
substantially equal to that afforded persons who are not handicapped;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as persons who are not handicapped;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons unless such
action is necessary to provide qualified handicapped persons with aid,
benefits or services that are as effective as those provided to persons
who are not handicapped;
(v) Aid or perpetuate discrimination against a qualified handicapped
person by providing financial or other assistance to an agency,
organization, or person that discriminates on the basis of handicap in
providing any aid, benefit, or service to beneficiaries of the
recipient's program;
(vi) Deny a qualified handicapped person the opportunity to
participate in conferences, in planning or advising recipients,
applicants or would-be applicants, or
(vii) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving an aid, benefit, or service.
(2) For purposes of this part, aids, benefits, and services, to be
equally effective, are not required to produce the identical result or
level of achievement for handicapped and nonhandicapped persons, but
must afford handicapped persons equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement, in the most integrated setting that is reasonably
achievable.
(3) Even if separate or different programs or activities are
available to handicapped persons, a recipient may not deny a qualified
handicapped person the opportunity to participate in the programs or
activities that are not separate or different.
(4) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped persons
to discrimination on the basis of handicap,
(ii) That have the purpose or effect of defeating or substantially
reducing the likelihood that handicapped persons can benefit by the
objectives of the recipient's program, or
(iii) That yield or perpetuate discrimination against another
recipient if both recipients are subject to common administrative
control or are agencies of the same State.
(5) In determining the site or location of a facility, an applicant
or a recipient may not make selections:
(i) That have the effect of excluding handicapped persons from,
denying them the benefits of, or otherwise subjecting them to
discrimination under any program or activity that receives or benefits
from Federal financial assistance, or
(ii) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to handicapped persons.
(6) As used in this section, the aid benefit, or service provided
under a program or activity receiving or benefitting from Federal
financial assistance includes any aid, benefit, or service provided in
or through a facility that has been constructed, expanded, altered,
leased or rented, or otherwise acquired, in whole or in part, with
Federal financial assistance.
(c) Communications. Recipients shall take appropriate steps to
ensure that communications with their applicants, employees, and
beneficiaries are available to persons with impaired vision and hearing.
(d) Programs limited by Federal law. In programs authorized by
Federal statute or executive order that are designed especially for the
handicapped, or for a particular class of handicapped persons, the
exclusion of nonhandicapped or other classes of handicapped persons is
not prohibited by this part.
49 CFR 27.9 Assurance required.
(a) General. Each application for Federal financial assistance to
carry out a program to which this part applies, and each application to
provide a facility, shall, as a condition to approval or extension of
any Federal financial assistance pursuant to the application, contain,
or be accompanied by, written assurance that the program will be
conducted or the facility operated in compliance with all the
requirements imposed by or pursuant to this part. An applicant may
incorporate these assurances by reference in subsequent applications to
the Department.
(b) Future effect of assurances. Recipients of Federal financial
assistance, and transferees of property obtained by a recipient with the
participation of Federal financial assistance, are bound by the
recipient's assurance under the following circumstances:
(1) When Federal financial assistance is provided in the form of a
conveyance of real property or an interest in real property from the
Department of Transportation to a recipient, the instrument of
conveyance shall include a convenant running with the land binding the
recipient and subsequent transferees to comply with the requirements of
this part for so long as the property is used for the purpose for which
the Federal financial assistance was provided or for a similar purpose.
(2) When Federal financial assistance is used by a recipient to
purchase or improve real property, the assurance provided by the
recipient shall obligate the recipient to comply with the requirements
of this part and require any subsequent transferee of the property, who
is using the property for the purpose for which the Federal financial
assistance was provided, to agree in writing to comply with the
requirements of this part. The obligations of the recipient and
transferees under this part shall continue in effect for as long as the
property is used for the purpose for which Federal financial assistance
was provided or for a similar purpose.
(3) When Federal financial assistance is provided to the recipient in
the form of, or is used by the recipient to obtain, personal property,
the assurance provided by the recipient shall obligate the recipient to
comply with the requirements of this part for the period it retains
ownership or possession of the property or the property is used by a
transferee for purposes directly related to the operations of the
recipient.
(4) When Federal financial assistance is used by a recipient for
purposes other than to obtain property, the assurance provided shall
obligate the recipient to comply with the requirements of this part for
the period during which the Federal financial assistance is extended to
the program.
49 CFR 27.11 Remedial action, voluntary action and compliance planning.
(a) Remedial action. (1) If the responsible Departmental official
finds that a qualified handicapped person has been excluded from
participation in, denied the benefits of, or otherwise subjected to
discrimination under, any program or activity in violation of this part,
the recipient shall take such remedial action as the responsible
Departmental official deems necessary to overcome the effects of the
violation.
(2) Where a recipient is found to have violated this part, and where
another recipient exercises control over the recipient that has violated
this part, the responsible Departmental official, where appropriate, may
require either or both recipients to take remedial action.
(3) The responsible Departmental official may, where necessary to
overcome the effects of a violation of this part, require a recipient to
take remedial action:
(i) With respect to handicapped persons who are no longer
participants in the recipient's program but who were participants in the
program when such discrimination occurred, and
(ii) With respect to handicapped persons who would have been
participants in the program had the discrimination not occurred.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to assure the full participation
in the recipient's program or activity by qualified handicapped persons.
(c) Compliance planning. (1) A recipient shall, within 90 days from
the effective date of this part, designate and forward to the head of
any operating administration providing financial assistance, with a copy
to the responsible Departmental official the names, addresses, and
telephone numbers of the persons responsible for evaluating the
recipient's compliance with this part.
(2) A recipient shall, within 180 days from the effective date of
this part, after consultation at each step in paragraphs (c)(2)
(i)-(iii) of this section with interested persons, including handicapped
persons and organizations representing the handicapped:
(i) Evaluate its current policies and practices for implementing
these regulations, and notify the head of the operating administration
of the completion of this evaluation;
(ii) Identify shortcomings in compliance and describe the methods
used to remedy them;
(iii) Begin to modify, with official approval of recipient's
management, any policies or practices that do not meet the requirements
of this part according to a schedule or sequence that includes
milestones or measures of achievement. These modifications shall be
completed within one year from the effective date of this part;
(iv) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted from previous policies and practices; and
(v) Establish a system for periodically reviewing and updating the
evaluation.
(3) A recipient shall, for at least three years following completion
of the evaluation required under paragraph (c)(2) of this section,
maintain on file, make available for public inspection, and furnish upon
request to the head of the operating administration:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems indentified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
49 CFR 27.13 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. Each recipient that employs
fifteen or more persons shall, within 90 days of the effective date of
this regulation, forward to the head of the operating administration
that provides financial assistance to the recipient, with a copy to the
responsible Departmental official, the name, address, and telephone
number of at least one person designated to coordinate its efforts to
comply with this part. Each such recipient shall inform the head of the
operating administration of any subsequent change.
(b) Adoption of complaint procedures. A recipient that employs
fifteen or more persons shall, within 180 days, adopt and file with the
head of the operating administration procedures that incorporate
appropriate due process standards and provide for the prompt and
equitable resolution of complaints alleging any action prohibited by
this part.
49 CFR 27.15 Notice.
(a) A recipient shall take appropriate initial and continuing steps
to notify participants, beneficiaries, applicants, and employees,
including those with impaired vision or hearing, and unions or
professional organizations holding collective bargaining or professional
agreements with the recipient, that it does not discriminate on the
basis of handicap. The notification shall state, where appropriate,
that the recipient does not discriminate in admission or access to, or
treatment or employment in, its programs or activities. The
notification shall also include an identification of the responsible
employee designated pursuant to 27.13(a). A recipient shall make the
initial notification required by this section within 90 days of the
effective date of this part. Methods of initial and continuing
notification may include the posting of notices, publication in
newspapers and magazines, placement of notices in recipients'
publications and distribution of memoranda or other written
communications.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information that it makes available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing
materials and publications or by revising and reprinting the materials
and publications. In either case, the addition or revision must be
specially noted.
49 CFR 27.17 Effect of State or local law.
The obligation to comply with this part is not obviated or affected
by any State or local law.
49 CFR 27.19 Compliance with Americans with Disabilities Act
requirements and UMTA policy.
(a) Recipients subject to this part (whether public or private
entities as defined in 49 CFR part 37) shall comply with all applicable
requirements of the Americans with Disabilities Act (ADA) of 1990 (42
U.S.C. 12101-12213) including the Department's ADA regulations (49 CFR
parts 37 and 38), the regulations of the Department of Justice
implementing Titles II and III of the ADA (28 CFR parts 35 and 36), and
the regulations of the Equal Employment Opportunity Commission (EEOC)
implementing title I of the ADA (29 CFR part 1630). Compliance with the
EEOC title I regulations is required as a condition of compliance with
section 504 for DOT recipients even for organizations which, because
they have fewer than 25 or 15 employees, would not be subject to the
EEOC regulation in its own right. Compliance with all these regulations
is a condition of receiving Federal financial assistance from the
Department of Transportation. Any recipient not in compliance with this
requirement shall be subject to enforcement action under subpart F of
this part.
(b) Consistent with UMTA policy, any recipient of Federal financial
assistance from the Urban Mass Transportation Administration whose
solicitation was made before August 26, 1990, and is for one or more
inaccessible vehicles, shall provide written notice to the Secretary
(e.g., in the case of a solicitation made in the past under which the
recipient can order additional new buses after the effective date of
this section). The Secretary shall review each case individually, and
determine whether the Department will continue to participate in the
Federal grant, consistent with the provisions in the grant agreement
between the Department and the recipient.
(55 FR 40763, Oct. 4, 1990, as amended at 56 FR 45621, Sept. 6, 1991)
Effective Date Note: At 56 FR 46521, Sept. 6, 1991, in 27.19,
paragraph (a) was revised, effective October 7, 1991. For the
convenience of the user, the superseded text appears as follows:
27.19 Compliance with Americans with Disabilities Act requirements
and UMTA policy.
(a) Recipients subject to this part shall comply with all applicable
requirements of the Americans with Disabilities Act (ADA) of 1990 (Pub.
L. 101-336) and the Department's regulations implementing the ADA (49
CFR part 37). Such compliance is a condition of receiving Federal
financial assistance from the Department of Transportation. Any
recipient not in compliance with this requirement shall be subject to
enforcement action under subpart F of this part.
49 CFR 27.19 Subpart B -- Program Accessibility Requirements in
Specific Operating Administration Programs: Airports, Railroads, and
Highways
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, 27.31 --
27.37 (subpart B) of part 27 were removed and 27.71 -- 27.75 (subpart
D) of part 27 were redesignated as subpart B, effective January 26,
1992. For the convenience of the user, the text remaining in effect
until January 22, 1992 follows the text of this new subpart.
49 CFR 27.71 Federal Aviation Administration -- airports.
(a) Fixed facilities; new terminals. (1) Terminal facilities
designed and constructed by or for the use of a recipient of Federal
financial assistance on or after the effective date of this part, the
intended use of which will require it to be accessible to the public or
may result in the employment therein of physically handicapped persons,
shall be designed or constructed in accordance with the accessibility
standards referenced in 27.3(b) of this part. Where there is apparent
ambiguity or contradiction between the definitions and the standards
referenced in 27.3(b) and the definitions and standards used in
paragraph (a)(2) of this section, the terms in the standards referenced
in 27.3(b) should be interpreted in a manner that will make them
consistent with the standards in paragraph (a)(2) of this section. If
this cannot be done, the standards in paragraph (a)(2) of this section
prevail.
(2) In addition to the accessibility standards referenced in 27.3(b)
of this part, the following standards apply to new airport terminal
facilities:
(i) Airport terminal circulation and flow. The basic terminal design
shall permit efficient entrance and movement of handicapped persons
while at the same time giving consideration to their convenience,
comfort, and safety. It is also essential that the design, especially
concerning the location of elevators, escalators, and similar devices,
minimize any extra distance that wheel chair users must travel compared
to nonhandicapped persons, to reach ticket counters, waiting areas,
baggage handling areas, and boarding locations.
(ii) International accessibility symbol. The international
accessibility symbol shall be displayed at accessible entrances to
buildings that meet the ANSI standards.
(iii) Ticketing. The ticketing system shall be designed to provide
handicapped persons with the opportunity to use the primary fare
collection area to obtain ticket issuance and make fare payment.
(iv) Baggage check-in and retrieval. Baggage areas shall be
accessible to handicapped persons. The facility shall be designed to
provide for efficient handling and retrieval of baggage by all persons.
(v) Boarding. Each operator at an airport receiving any Federal
financial assistance shall assure that adequate assistance is provided
for enplaning and deplaning handicapped persons. Boarding by level
entry boarding platforms and by passenger lounges are the preferred
methods for movement of handicapped persons between terminal buildings
and aircraft at air carrier airports; however, where this is not
practicable, operators at air carrier airport terminals shall assure
that there are lifts, ramps, or other suitable devices not normally used
for movement of freight that are available for enplaning and deplaning
wheelchair users.
(vi) Telephones. Wherever there are public telephone centers in
terminals, at least one clearly marked telephone shall be equipped with
a volume control or sound booster device and with a device available to
handicapped persons that makes telephone communication possible for
persons wearing hearing aids.
(vii) Teletypewriter. Each airport shall ensure that there is
sufficient teletypewriter (TTY) service to permit hearing-impaired
persons to communicate readily with airline ticket agents and other
personnel.
(viii) Vehicular loading and unloading areas. Several spaces
adjacent to the terminal building entrance, separated from the main flow
of traffic, and clearly marked, shall be made available for the loading
and unloading of handicapped passengers from motor vehicles. The spaces
shall allow individuals in wheelchairs or with braces or crutches to get
in and out of automobiles onto a level surface suitable for wheeling and
walking.
(ix) Parking. In addition to the requirements in the accessibility
standards referenced in 27.3(b) of this part the following requirements
shall be met:
(A) Curb cuts or ramps with grades not exceeding 8.33 percent shall
be provided at crosswalks between park areas and the terminal;
(B) Where multi-level parking is provided, ample and clearly marked
space shall be reserved for ambulatory and semi-ambulatory handicapped
persons on the level nearest the ticketing and boarding portion of the
terminal facilities, and
(C) In multi-level parking areas, elevators, ramps, or other devices
that can accommodate wheelchair users shall be easily available.
(x) Waiting area/public space. As the major public area of the
airport terminal facility, the environment in the waiting area/public
space should give the handicapped person confidence and security in
using the facility. The space shall be designed to accommodate the
handicapped providing clear direction about how to use all passenger
facilities.
(xi) Airport terminal information. Airport terminal information
systems shall take into consideration the needs of handicapped persons.
The primary information mode shall be visual words and letters, or
symbols, using lighting and color coding. Airport terminals shall also
have facilities providing information orally.
(xii) Public services. Public service facilities such as public
toilets, drinking fountains, telephones, travelers aid and first aid
medical facilities shall be designed in accordance with accessibility
standards referenced in 27.3(b) of this part.
(b) Fixed facilities; existing terminals -- (1) Structural changes.
Where structural changes are necessary to make existing air carrier
terminals which are owned and operated by recipients of Federal
financial assistance accessible to and usable by handicapped persons,
such changes shall be made in accordance with the ANSI standards as soon
as practicable, but in no event later than three years after the
effective date of this part.
(2) Ongoing renovation. In terminals that are undergoing structural
changes involving entrances, exits, interior doors, elevators, stairs,
baggage areas, drinking fountains, toilets, telephones, eating places,
curbs, and parking areas, recipients shall begin immediately to
incorporate accessibility features.
(3) Transition. Where extensive structural changes to existing
facilities are necessary to meet accessibility requirements, recipients
shall develop a transition plan in accordance with 27.65(d) and submit
it to the Federal Aviation Administration (FAA). Transition plans are
reviewed and approved or disapproved by the FAA as expeditiously as
possible after they are received.
(4) Boarding. Each operator at an airport receiving any Federal
financial assistance shall assure that adequate assistance is provided
incident to enplaning and deplaning handicapped persons. Within three
years from the effective date of this part, recipients operating
terminals at air carrier airports that are not equipped with jetways or
passenger lounges for boarding and unboarding shall assure that there
are lifts, ramps, or other suitable devices, not normally used for
movement of freight, are available for enplaning and deplaning
wheelchair users.
(5) Passenger services. Recipients operating terminals at air
carrier airports shall assure that there are provisions for assisting
handicapped passengers upon request in movement into, out of, and within
the terminal, and in the use of terminal facilities, including baggage
handling.
(6) Guide dogs. Seeing eye and hearing guide dogs shall be permitted
to accompany their owners and shall be accorded all the privileges of
the passengers whom they accompany in regard to access to terminals and
facilities.
(44 FR 31468, May 31, 1979, as amended by Amdt. 27-3, 51 FR 19017,
May 23, 1986. Redesignated at 56 FR 45621, Sept. 6, 1991.)
49 CFR 27.75 Federal Highway Administration -- highways.
(a) New facilities -- (1) Highway rest area facilities. All such
facilities that will be constructed with Federal financial assistance
shall be designed and constructed in accordance with the accessibility
standards referenced in 27.3(b) of this part.
(2) Curb cuts. All pedestrian crosswalks constructed with Federal
financial assistance shall have curb cuts or ramps to accommodate
persons in wheelchairs, pursuant to section 228 of the Federal-Aid
Highway Act of 1973 (23 U.S.C. 402(b)(1)(F)).
(3) Pedestrian over-passes, under-passes and ramps. Pedestrian
over-passes, under-passes and ramps, constructed with Federal financial
assistance, shall be accessible to handicapped persons, including having
gradients no steeper than 10 percent, unless:
(i) Alternate safe means are provided to enable mobility-limited
persons to cross the roadway at that location; or
(ii) It would be infeasible for mobility-limited persons to reach the
over-passes, under-passes or ramps because of unusual topographical or
architectural obstacles unrelated to the federally assisted facility.
(b) Existing facilities -- Rest area facilities. Rest area
facilities on Interstate highways shall be made accessible to
handicapped persons, including wheelchair users, within a three-year
period after the effective date of this part. Other rest area
facilities shall be made accessible when Federal financial assistance is
used to improve the rest area, or when the roadway adjacent to or in the
near vicinity of the rest area is constructed, reconstructed or
otherwise altered with Federal financial assistance.
(44 FR 31468, May 31, 1979, as amended by Amdt. 27-3, 51 FR 19017,
May 23, 1986. Redesignated at 56 FR 45621, Sept. 6, 1991.)
49 CFR 27.75 Pt. 27, Subpt. B, Note
49 CFR 27.75 Subpart B -- Employment Practices
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, 27.31 --
27.37 (subpart B) were removed and 27.71 -- 27.75 (subpart D) were
redesignated in its place, effective January 26, 1991. For the
convenience of the user, the superseded text appears as follows:
27.31 Discrimination prohibited.
(a) General. (1) No qualified handicapped applicant for employment,
or an employee shall, on the basis of handicap, be subjected to
discrimination in employment under any program or activity that receives
or benefits from Federal financial assistance.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner assuring
that discrimination on the basis of handicap does not occur. A
recipient may not limit, segregate, or classify applicants for
employment or employees in any way that adversely affects their
opportunities or status on the basis of handicap. This part does not
prohibit the consideration of handicap in decisions affecting employment
if the purpose and effect of the consideration is to remove or overcome
impediments or the present effects of past impediments to the employment
of handicapped persons.
(3) A recipient may not enter a contractual or other relationship
that subjects qualified handicapped applicants for employment or
employees to discrimination prohibited by this subpart. The
relationships referred to in this paragraph include relationships with
employment and referral agencies, with labor unions, with organizations
providing or administering fringe benefits to employees of the
recipient, or with organizations providing training and apprenticeship
programs.
(b) Specific activities. A recipient shall not discriminate on the
basis of handicap in:
(1) Recruiting, advertising, and processing of applications for
employment;
(2) Hiring, upgrading, promoting, awarding tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or not
administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer-sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(c) A recipient's obligation to comply with this subpart is not
affected by any inconsistent term of any collective bargaining agreement
to which it is a party.
27.33 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
handicaps of an otherwise qualified applicant for employment or employee
unless the recipient can demonstrate to the responsible Departmental
official that the accommodation would impose an undue hardship on the
operations of its program.
(b) Reasonable accommodation includes (but is not limited to):
(1) Making facilities used by employees readily accessible to and
usable by handicapped persons;
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment, and similar actions; and
(3) The assignment of an employee who becomes handicapped and unable
to perform his/her original duties to an alternative position with
comparable pay.
(c) In determining, pursuant to paragraph (a) of this section,
whether an accommodation would impose an undue hardship on the operation
of a recipient's program, factors to be considered include:
(1) The overall size of the recipient's program, including number of
employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce;
(3) The nature and cost of the accommodation needed; and
(4) Its effect on program accomplishments, including safety.
(d) A recipient shall 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 accommodations to the
handicaps of the employee or applicant.
27.35 Employment criteria.
(a) A recipient shall not make use of an employment test or other
selection criterion that has an adverse impact or tends to have an
adverse impact on handicapped persons, unless:
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not have an
adverse impact or do not tend to have an adverse impact on handicapped
persons are shown by the recipient to be unavailable.
(b) A recipient shall select and administer tests that, when
administered to an applicant for employment or an employee with impaired
sensory, manual, or speaking skills, nonetheless accurately measure what
they purport to measure.
27.37 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient shall not conduct a preemployment medical examination or
inquiry as to whether the applicant is a handicapped person or as to the
nature or severity of a handicap. A recipient may, however, make
preemployment medical examinations that are required by Federal law or
regulation or inquiries into an applicant's ability to perform
job-related functions.
(b) When a recipient is taking remedial action pursuant to 27.11 (a)
or (c), or when a recipient is taking affirmative action pursuant to
section 505 of the Act (which relates to government procurement), the
recipient may invite applicants for employment to indicate whether and
to what extent they are handicapped, provided that:
(1) The recipient makes clear that the information requested is
intended for use solely in connection with the remedial action
obligations or its voluntary or affirmative actions efforts; and
(2) The recipient makes clear that the information is being requested
on a voluntary basis, that it will be kept confidential, that refusal to
provide it will not subject the applicant or employee to any adverse
treatment, and that it will be used only in accordance with this part.
(c) Nothing in this section prohibits 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:
(1) All entering employees in that category of job classification
must take such an examination regardless of whether or not they are
handicapped; and
(2) The results of such an examination are used only in accordance
with this part.
(d) Information obtained in accordance with this section shall be
collected and maintained on separate forms and treated confidentially,
except that:
(1) Supervisors and managers may be informed of restrictions on the
work or duties of handicapped persons and necessary accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(3) Government officials investigating compliance with the Act shall
be provided relevant information upon request, consistent with the
Privacy Act of 1974, 5 U.S.C. 552a.
49 CFR 27.75 Subpart C -- Enforcement
Source: 44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621,
Sept. 6, 1991.
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, 27.61 --
27.67 (subpart C) of part 27 were removed and 27.121 -- 27.129
(subpart F) of part 27 were redesignated as subpart C, effective January
26, 1992. For the convenience of the user, the text remaining in effect
until January 26, 1992 follows the text of this new subpart.
49 CFR 27.121 Compliance information.
(a) Cooperation and assistance. The responsible Departmental
official, to the fullest extent practicable, seeks the cooperation of
recipients in securing compliance with this part and provides assistance
and guidance to recipients to help them comply with this part.
(b) Compliance reports. Each recipient shall keep on file for one
year all complaints of noncompliance received. A record of all such
complaints, which may be in summary form, shall be kept for five years.
Each recipient shall keep such other records and submit to the
responsible Departmental official or his/her designee timely, complete,
and accurate compliance reports at such times, and in such form, and
containing such information as the responsible Department official may
prescribe. In the case of any program under which a primary recipient
extends Federal financial assistance to any other recipient, the other
recipient shall also submit compliance reports to the primary recipient
so as to enable the primary recipient to prepare its report.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Departmental official or his/her designee
during normal business hours to books, records, accounts, and other
sources of information, and to facilities that are pertinent to
compliance with this part. Where required information is in the
exclusive possession of another agency or person who fails or refuses to
furnish the information, the recipient shall so certify in its report
and describe the efforts made to obtain the information. Considerations
of privacy or confidentiality do not bar the Department from evaluating
or seeking to enforce compliance with this part. Information of a
confidential nature obtained in connection with compliance evaluation or
enforcement is not disclosed by the Department, except in formal
enforcement proceedings, where necessary, or where otherwise required by
law.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
regulation and its application to the program for which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible Departmental
official finds necessary to apprise them of the protections against
discrimination provided by the Act and this part.
49 CFR 27.123 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Departmental
official or his/her designee, from time to time, reviews the practices
of recipients to determine whether they are complying with this part.
(b) Complaints. Any person who believes himself/herself or any
specific class of individuals to be harmed by failure to comply with
this part may, personally or through a representative, file a written
complaint with the responsible Departmental official. A Complaint must
be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Departmental official or his/her designee.
(c) Investigations. The responsible Departmental official or his/her
designee makes a prompt investigation whenever a compliance review,
report, complaint, or any other information indicates a possible failure
to comply with this part. The investigation includes, where
appropriate, a review of the pertinent practices and policies of the
recipient, and the circumstances under which the possible noncompliance
with this part occurred.
(d) Resolution of matters. (1) If, after an investigation pursuant
to paragraph (c) of this section, the responsible Departmental official
finds reasonable cause to believe that there is a failure to comply with
this part, the responsible Departmental official will inform the
recipient. The matter is resolved by informal means whenever possible.
If the responsible Departmental official determines that the matter
cannot be resolved by informal means, action is taken as provided in
27.125.
(2) If an investigation does not warrant action pursuant to paragraph
(d)(1) of this section, the responsible Departmental official or his/her
designee so informs the recipient and the complainant, if any, in
writing.
(e) Intimidating and retaliatory acts prohibited. No employee or
contractor of a recipient shall intimidate, threaten, coerce, or
discriminate against any individual for the purpose of interfering with
any right or privilege secured by section 504 of the Act or this part,
or because the individual has made a complaint, testified, assisted, or
participated in any manner in an investigation, hearing, or proceeding,
under this part. The identity of complainants is kept confidential at
their election during the conduct of any investigation, hearing or
proceeding under this part. However, when such confidentiality is
likely to hinder the investigation, the complainant will be advised for
the purpose of waiving the privilege.
49 CFR 27.125 Compliance procedure.
(a) General. If there is reasonable cause for the responsible
Departmental official to believe that there is a failure to comply with
any provision of this part that cannot be corrected by informal means,
the responsible Departmental official may recommend suspension or
termination of, or refusal to grant or to continue Federal financial
assistance, or take any other steps authorized by law. Such other steps
may include, but are not limited to:
(1) A referral to the Department of Justice with a recommendation
that appropriate proceedings be brought to enforce any rights of the
United States under any law of the United States (including other titles
of the Act), or any assurance or other contractural undertaking; and
(2) Any applicable proceeding under State or local law.
(b) Refusal of Federal financial assistance. (1) No order
suspending, terminating, or refusing to grant or continue Federal
financial assistance becomes effective until:
(i) The responsible Departmental official has advised the applicant
or recipient of its failure to comply and has determined that compliance
cannot be secured by voluntary means; and
(ii) There has been an express finding by the Secretary on the
record, after opportunity for hearing, of a failure by the applicant or
recipient to comply with a requirement imposed by or pursuant to this
part.
(2) Any action to suspend, terminate, or refuse to grant or to
continue Federal financial assistance is limited to the particular
recipient who has failed to comply, and is limited in its effect to the
particular program, or part thereof, in which noncompliance has been
found.
(c) Other means authorized by law. No other action is taken until:
(1) The responsible Departmental official has determined that
compliance cannot be secured by voluntary means;
(2) The recipient or other person has been notified by the
responsible Departmental official of its failure to comply and of the
proposed action;
(3) The expiration of at least 10 days from the mailing of such
notice to the recipient or other person. During this period, additional
efforts are made to persuade the recipient or other person to comply
with the regulations and to take such corrective action as may be
appropriate.
49 CFR 27.127 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 27.125(b), reasonable notice is given by the responsible
Departmental official by registered or certified mail, return receipt
requested, to the affected applicant or recipient. This notice advises
the applicant or recipient of the action proposed to be taken, the
specific provision under which the proposed action is to be taken, and
the matters of fact or law asserted as the basis for this action, and
either:
(1) Fixes a date not less than 20 days after the date of such notice
within which the applicant or recipient may request a hearing; or
(2) Advises the applicant or recipient that the matter in question
has been set for hearing at a stated place and time.
The time and place shall be reasonable and subject to change for
cause. The complainant, if any, also is advised of the time and place
of the hearing. An applicant or recipient may waive a hearing and
submit written information and argument for the record. The failure of
an applicant or recipient to request a hearing constitutes a waiver of
the right to a hearing under section 504 of the Act and 27.125(b), and
consent to the making of a decision on the basis of such information as
may be part of the record.
(b) If the applicant or recipient waives its opportunity for a
hearing, the responsible Departmental official shall notify the
applicant or recipient that it has the opportunity to submit written
information and argument for the record. The responsible Departmental
official may also place written information and argument into the
record.
(c) Time and place of hearing. Hearings are held at the office of
the Department in Washington, DC, at a time fixed by the responsible
Departmental official unless he/she determines that the convenience of
the applicant or recipient or of the Department requires that another
place be selected. Hearings are held before an Administrative Law Judge
designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the
Administrative Procedure Act).
(d) Right to counsel. In all proceedings under this section, the
applicant or recipient and the responsible Departmental official have
the right to be represented by counsel.
(e) Procedures, evidence and record. (1) The hearing, decision, and
any administrative review thereof are conducted in conformity with
sections 554 through 557 of Title 5 of the United States Code, and in
accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving notice subsequent to those provided for in paragraph (a) of this
section, taking testimony, exhibits, arguments and briefs, requests for
findings, and other related matters. The responsible Departmental
official and the applicant or recipient are entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing. Any person (other
than a government employee considered to be on official business) who,
having been invited or requested to appear and testify as a witness on
the government's behalf, attends at a time and place scheduled for a
hearing provided for by this part may be reimbursed for his/her travel
and actual expenses in an amount not to exceed the amount payable under
the standardized travel regulations applicable to a government employee
traveling on official business.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to cross examination are applied where reasonably necessary by
the Administrative Law Judge conducting the hearing. The Administrative
Law Judge may exclude irrelevant, immaterial, or unduly repetitious
evidence. All documents and other evidence offered or taken for the
record are open to examination by the parties and opportunity is given
to refute facts and arguments advanced by either side. A transcript is
made of the oral evidence except to the extent the substance thereof is
stipulated for the record. All decisions are based on the hearing
record and written findings shall be made.
(f) Consolidation or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this
regulation with respect to two or more programs to which this part
applies, or noncompliance with this part and the regulations of one or
more other Federal departments or agencies issued under section 504 of
the Act, the responsible Departmental official may, in agreement with
such other departments or agencies, where applicable, provide for
consolidated or joint hearings. Final decisions in such cases, insofar
as this regulation is concerned, are made in accordance with 27.129.
49 CFR 27.129 Decisions and notices.
(a) Decisions by Administrative Law Judge. After the hearing, the
Administrative Law Judge certifies the entire record including his
recommended findings and proposed decision to the Secretary for a final
decision. A copy of the certification is mailed to the applicant or
recipient and to the complainant, if any. The responsible Departmental
official and the applicant or recipient may submit written arguments to
the Secretary concerning the Administrative Law Judge's recommended
findings and proposed decision.
(b) Final decision by the Secretary. When the record is certified to
the Secretary by the Administrative Law Judge, the Secretary reviews the
record and accepts, rejects, or modifies the Administrative Law Judge's
recommended findings and proposed decision, stating the reasons
therefor.
(c) Decisions if hearing is waived. Whenever a hearing pursuant to
27.125(b) is waived, the Secretary makes his/her final decision on the
record, stating the reasons therefor.
(d) Rulings required. Each decision of the Administrative Law Judge
or the Secretary contains a ruling on each finding or conclusion
presented and specifies any failures to comply with this part.
(e) Content of orders. The final decision may provide for suspension
or termination, or refusal to grant or continue Federal financial
assistance, in whole or in part, under the program involved. The
decision may contain such terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of the Act and this
part, including provisions designed to assure that no Federal financial
assistance will thereafter be extended unless and until the recipient
corrects its noncompliance and satisfies the Secretary that it will
fully comply with this part.
(f) Subsequent proceedings. (1) An applicant or recipient adversely
affected by an order issued under paragraph (e) of this section is
restored to full eligibility to receive Federal financial assistance if
it satisfies the terms and conditions of that order or if it brings
itself into compliance with this part and provides reasonable assurance
that it will fully comply with this part.
(2) Any applicant or recipient adversely affected by an order entered
pursuant to paragraph (e) of this section may, at any time, request the
responsible Departmental official to restore its eligibility, to receive
Federal financial assistance. Any request must be supported by
information showing that the applicant or recipient has met the
requirements of paragraph (f)(1) of this section. If the responsible
Departmental official determines that those requirements have been
satisfied, he/she may restore such eligibility, subject to the approval
of the Secretary.
(3) If the responsible Departmental official denies any such request,
the applicant or recipient may submit a request, in writing, for a
hearing specifying why it believes the responsible Departmental official
should restore it to full eligibility. It is thereupon given a prompt
hearing, with a decision on the record. The applicant or recipient is
restored to eligibility if it demonstrates to the satisfaction of the
Secretary at the hearing that it satisfied the requirements of paragraph
(f)(1) of this section.
(4) The hearing procedures of 27.127(b) through (c) and paragraphs
(a) through (d) of this section apply to hearings held under paragraph
(f)(3) of this section.
(5) While proceedings under this paragraph are pending, the sanctions
imposed by the order issued under paragraph (e) of this section shall
remain in effect.
49 CFR 27.129 Pt. 27, Subpt. C, Note
49 CFR 27.129 Subpart C -- Program Accessibility -- General
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, 27.67(d) were
removed, effective October 7, 1991. At 56 FR 45621, Sept. 6, 1991,
27.61 -- 27.67 (subpart C) were removed and 27.121 -- 27.129 (subpart
F) was redesignated in its place, effective January 26, 1992. For the
convenience of the user, the superseded text appears as follows:
27.61 Applicability.
This subpart applies to all programs of the Department of
Transportation to which section 504 is applicable. Additional
provisions with respect to certain specific programs of the Department
are set forth in subpart D. The provisions of this subpart should be
interpreted in a manner that will make them consistent with the
provisions of subpart D. In the case of apparent conflict, the
provisions of subpart D shall prevail.
(44 FR 31468, May 31, 1979, as amended at 46 FR 37492, July 20, 1981)
27.63 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity to which
this part applies.
27.65 Existing facilities.
(a) Program accessibility. A recipient shall operate each program or
activity to which this part applies so that, when viewed in the
entirety, it is accessible to handicapped persons. This paragraph does
not necessarily require a recipient to make each of its existing
facilities or every part of an existing facility accessible to and
usable by handicapped persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a) of this section through such means as redesign of
equipment, alteration of existing facilities and construction of new
facilities in accordance with the requirements of 27.67(d) or any other
methods that result in making its program or activity accessible to
handicapped persons. In choosing among available methods for meeting
the requirements of paragraph (a) of this section, a recipient shall
give priority to those methods that offer programs and activities to
handicapped persons in the most integrated setting appropriate.
(c) Structural changes. Where structural changes are necessary to
make programs or activities in existing facilities meet the requirements
of paragraph (a) of this section, such changes shall be made as soon as
practicable, but in no event later than three years after the effective
date of this regulation unless otherwise provided in subpart D.
(d) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirements of paragraph (a) of
this section, a recipient shall develop, and submit in duplicate to the
cognizant operating administration providing Federal financial
assistance, within one year of the effective date of this part, a
transition plan listing the facilities and setting forth the steps
necessary to complete such changes. The plan shall be developed with
the assistance of interested persons, including handicapped persons or
organizations representing handicapped persons. A copy of the
transition plan and a list of the interested persons and organizations
consulted shall be made available for public inspection. The plan
shall, at a minimum:
(1) Identify each facility required to be modified by this part.
Facilities shall be listed even though the recipient contemplates
requesting a waiver of the requirement to modify the facility;
(2) Identify physical obstacles in the listed facilities that limit
the accessibility of its program or activity to handicapped persons;
(3) Describe the methods that will be used to make the listed
facilities accessible;
(4) Describe how and the extent to which the surrounding areas will
be made accessible;
(5) Specify the schedule for taking the steps necessary to achieve
overall program accessibility and, if the time period of the transition
plan is longer than three years, identify steps that will be taken
during each year of the transition period; and
(6) Indicate the person responsible for implementation of the plan.
(e) Notice. The recipient shall adopt and implement procedures to
ensure that interested persons, including persons with impaired vision
or hearing, can obtain information as to the existence and location of
services, activities, and facilities that are accessible to and usable
by handicapped persons.
(44 FR 31468, May 31, 1979, as amended at 46 FR 37492, July 20, 1981)
27.67 New facilities and alterations.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed, constructed, and operated in a manner so that the facility or
part of the facility is accessible to and usable by handicapped persons,
if the construction was commenced after the effective date of this part;
with respect to vehicles, unless otherwise provided in subpart D, this
requirement is effective for vehicles for which solicitations are issued
or which are leased after the effective date of this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part in a manner that affects or could affect the accessibility
of the facility or part of the facility shall, to the maximum extent
feasible, be altered in such a manner that the altered portion of the
facility is readily accessible to and usable by handicapped persons.
(c) When an existing vehicle is renovated substantially to prolong
its life, the vehicle shall, to the maximum extent feasible, meet the
requirements for a comparable new vehicle. Lesser renovations shall
incorporate accessibility features for a comparable new vehicle when
practicable and justified by the remaining life expectancy of the
vehicle.
(d) Accessibility standards. Effective as of the effective date of
this subpart, design, construction, or alteration of buildings or other
fixed facilities in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (UFAS) (appendix A to 41 CFR 101-19.6) shall be
deemed to comply with the requirements of this section with respect to
those buildings or other fixed facilities. Departures from particular
technical and scoping requirements of UFAS by the use of other methods
are permitted where substantially equivalent or greater access to and
usability of the building or other fixed facilities is provided.
(1) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of physically handicapped persons.
(2) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
(44 FR 31468, May 31, 1979, as amended at 46 FR 37492, July 20, 1981;
Amdt. 27-3, 51 FR 19017, May 23, 1986)
49 CFR 27.129 Pt. 27, Subpt. D, Note
49 CFR 27.129 Subpart D -- Program Accessibility Requirements in
Specific Operating Administration Programs: Airports, Railroads, and
Highways
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, 27.73 and
appendix A to subpart D were removed effective October 7, 1991. The
remainder of subpart D was redesignated as subpart B, effective January
26, 1992. For the convenience of the user, the text in effect until
October 7, 1991, appears as follows:
27.73 Federal Railroad Administration-railroads.
(a) Fixed facilities -- (1) New facilities. (i) Every fixed facility
or part of a facility -- including every station, terminal, building, or
other facility -- designed or constructed by or for the use of a
recipient of Federal financial assistance on or after the effective date
of this part, the intended use of which will require it to be accessible
to the public or may result in the employment therein of physically
handicapped persons, shall be designed and constructed in accordance
with the accessibility standards referenced in 27.67(d) of this part.
Where there is apparent ambiguity or contradiction between the
definitions and the standards referenced in 27.67(d) and the
definitions and standards used in paragraph (a)(1)(ii) of this section,
the terms in the standards referenced in 27.67(d) should be interpreted
in a manner that will make them consistent with the standards in
paragraph (a)(1)(ii) of this section. If this cannot be done, the
standards in paragraph (a)(1)(ii) of this section will prevail.
(ii) In addition to the accessibility standards referenced in
27.67(d) of this part the following standards also apply to rail
facilities;
(A) Station circulation and flow. The basic station design shall
permit efficient entrance and movement of handicapped persons while at
the same time giving consideration to their convenience, comfort, and
safety. The design, especially concerning the location of elevators,
escalators, and similar devices, shall minimize any extra distance that
wheelchair users must travel, compared to nonhandicapped persons, to
such ticket counters, baggage handling areas and boarding locations.
(B) International accessibility symbol. The international
accessibility symbol shall be displayed at accessible entrances to
buildings that meet ANSI standards.
(C) Ticketing. The ticketing system shall be designed to provide
handicapped persons with the opportunity to use the primary fare
collection area to obtain ticket issuance and make fare payment.
(D) Baggage check-in and retrieval. Baggage areas shall be
accessible to handicapped persons. The facility shall be designed to
provide for efficient handling and retrieval of baggage by all persons.
(E) Boarding platforms. All boarding platforms that are located more
than two feet above ground or present any other dangerous condition,
shall be marked with a warning device consisting of a string of floor
material differing in color and texture from the remaining floor
surface. The design of boarding platforms shall be coordinated with the
vehicle design where possible in order to minimize the gap between
platform and vehicle doorway and to permit safe passage by wheelchair
users and other handicapped persons. Where level entry boarding is not
provided, lifts, ramps or other suitable devices shall be available to
permit boarding by wheelchair users.
(F) Telephones. At least one clearly marked telephone shall be
equipped with a volume control or sound booster device and with a device
available to handicapped persons that makes telephone communication
possible for persons wearing hearing aids.
(G) Teletypewriter. Recipients shall make available a toll-free
reservation and information number with teletypewriter (TTY)
capabilities, to permit hearing-impaired persons using TTY equipment to
readily obtain information or make reservations for any services
provided by a recipient.
(H) Vehicular loading and unloading areas. Several spaces adjacent
to the terminal entrance separated from the main flow of traffic and
clearly marked shall be made available for the boarding and exiting of
handicapped persons. The spaces shall allow individuals in wheelchairs
or with braces or crutches to get in and out of vehicles onto a level
surface suitable for wheeling or walking.
(I) Parking. Where parking facilities are provided, at least two
spaces shall be set aside and identified for the exclusive use of
handicapped persons. Curb cuts or ramps with grades not exceeding 8.33
percent shall be provided at crosswalks between parking areas and the
terminal. Where multi-level parking is provided, ample space which is
clearly marked shall be reserved for handicapped persons with limited
mobility on the level which is most accessible to the ticketing and
boarding portion of the terminal facilities; such level change shall be
by elevator, ramp, or by other devices which can accommodate wheelchair
users.
(J) Waiting area/public space. As the major public area of the rail
facility, the environment in the waiting area/public space should give
the handicapped persons confidence and security in using the facility.
The space shall be designed to accommodate the handicapped by providing
clear directions about how to use all passenger facilities.
(K) Station information. Station information systems shall take into
consideration the needs of handicapped persons. The primary information
mode shall be visual words and letters or symbols using lighting and
color coding. Stations shall also have facilities for giving
information orally. Scheduling information shall be available in a
tactile format or through the use of a toll-free telephone number.
(L) Public services. Public service facilities, such as public
toilets, drinking fountains, telephones, travelers aid and first aid
medical facilities, shall be designed in accordance with accessibility
standards referenced in 27.67(d) of this part.
(2) Existing facilities -- Ongoing renovation. (i) All recipients
shall begin immediately to incorporate accessibility features in
stations and terminals that are already undergoing structural changes
involving entrances and exits, interior doors, elevators, stairs,
baggage areas, drinking fountains, toilets, telephones, eating places,
boarding platforms, curbs, and parking garages.
(ii) Structural changes. Existing stations shall be modified to
ensure that the facilities, when viewed in their entirety, are readily
accessible to and usable by handicapped persons.
(iii) Scheduling of structural changes. (A) Within five years from
the effective date of this section, recipients shall make accessible no
less than one station in each Standard Metropolitan Statistical Area
(SMSA) served by the recipient. Where there is more than one station in
an SMSA, recipients shall select the station with the greatest annual
passenger volume for modification within five years.
(B) Within ten years of the effective date of this section,
recipients shall make accessible all other stations in each SMSA.
(C) Within five years of the effective date of this section,
recipients shall make accessible stations located outside of an SMSA and
not located within 50 highway miles of an accessible station. Where
there are two or more stations within 50 highway miles of one another, a
recipient shall select the station with the greatest annual passenger
volume for modification within five years.
(D) Within ten years of the effective date of this section,
recipients shall make accessible all other stations located outside of
an SMSA.
(iv) Waiver procedure. (A) Recipients may petition the Federal
Railroad Administrator for a waiver from the requirement to make a
particular station accessible under paragraph (a)(2)(iii) (B) and (D) of
this section. Such petitions shall be submitted no later than six years
after the effective date of this section.
(B) A request for a waiver shall be supported by a written
justification to the Federal Railroad Administrator. The justification
shall include a record of a community consultative process in the area
served by the station for which a waiver is sought. This request shall
include a transcript of a public hearing. Handicapped persons and
organizations in the area concerned shall be involved in the
consultative process.
(C) Factors that are applicable to the determination on a petition
for waiver and the conditions that would apply to the waiver include,
but are not limited to: (1) The utilization of the station; (2) the
cost of making modifications to the station; (3) and the availability
of alternative, accessible means of transportation for handicapped
persons that meet the needs of those persons for efficient and timely
service at a fare comparable to rail fare from the area served by the
station to the nearest accessible station in each direction of travel.
(D) Within 30 days of the date the waiver request is filed with the
FRA, representatives of the FRA will meet with representatives of the
Interstate Commerce Commission (ICC) to determine if the justification
is adequate. The representatives will coordinate their efforts so that
any changes requested by either FRA or ICC are consistent.
(E) If no agreement can be reached by the FRA and ICC on the adequacy
of the justification within 60 days from the date the representatives
first meet, the waiver request shall be denied.
(v) Transition plan. Where extensive changes to existing facilities
are necessary to meet accessibility requirements, recipients shall
develop a transition plan in accordance with 27.65(d) and submit it, in
duplicate, to the Federal Railroad Administration (FRA).
(vi) Approval of transition plan. (A) Transition plans are reviewed
and approved or disapproved as expeditiously as possible after they are
received. Within 30 days from the date the plan is filed with the FRA,
representatives of the FRA meet with representatives of the ICC to
determine if the plan is adequate. The representatives coordinate their
efforts so that any changes requested by either the FRA or the ICC are
consistent.
(B) If no agreement can be reached by the FRA and the ICC within 60
days from the date the representatives first meet, the transition plan
shall be disapproved.
(vii) Existing danger. Every existing facility and piece of
equipment shall be free of conditions which pose a danger to the life or
safety of handicapped persons. Upon discovery of such conditions, the
danger shall be immediately eliminated and all necessary steps taken to
protect the handicapped, or a particular category of handicapped
persons, from harm during the period that the facility or equipment is
being made safe.
(b) Rail vehicles. (1) Within five years from the effective date of
this part, on each passenger train:
(i) At least one coach car shall be accessible;
(ii) Where sleeping cars are provided, at least one sleeping car
shall be accessible; and
(iii) At least one car in which food service is available shall be
accessible to handicapped persons, or they shall be provided food
service where they are seated.
In cases where the only accessible car is first class, first class
seating for handicapped persons shall be provided at coach fare.
(2) In order for a passenger car to be accessible to handicapped
persons, the following shall be available:
(i) Space to park and secure one or more wheelchairs to accommodate
persons who wish to remain in their wheelchairs, and space to fold and
store one or more wheelchairs to accommodate individuals who wish to sit
in coach seats.
(ii) Accessible restrooms with wide doorways, bars to assist the
individual in moving from wheelchair to toilet, low sinks, and other
appropriate modifications. These restrooms should be large enough to
accommodate wheelchairs.
(3) All new rail passenger vehicles for which solicitations are
issued after the effective date of this part by recipients of Federal
financial assistance shall be designed so as to be accessible to
handicapped persons and shall display the international accessibility
symbol at each entrance.
(c) Rail passenger service. (1) No recipient shall deny
transportation to any person who meets the requirements of this
regulation because that person cannot board a train without assistance,
or use on-train facilities without assistance, except as provided in
this regulation.
(2) Handicapped persons who require the assistance of an attendant
shall not be denied transportation so long as they are accompanied by an
attendant. Handicapped persons who require the service of an attendant,
but who are unaccompanied, are not required under this part to be
transported by the recipient. Handicapped persons requiring the
assistance of an attendant shall include those who cannot take care of
any one of their fundamental personal needs.
(3) All recipients at stations, except flag stops and closed
stations, shall, on advance notice of 12 hours or more, provide
assistance to handicapped persons, except that those handicapped persons
who require the services of an attendant shall give advance notice of at
least 24 hours. Such assistance shall include, but is not limited to,
advance boarding and assisting handicapped persons in moving from
station platform onto the train and to a seat. The recipient shall
provide the same assistance to handicapped persons as they leave the
train or board another train in the process of changing trains.
Recipients shall provide assistance upon request to handicapped persons
in the use of station facilities and in the handling of baggage.
(4) In all open stations, there shall be prominently displayed a
notice stating the location of the recipient's representative or agent
who is responsible for providing assistance to handicapped persons.
Recipients shall publish in their schedules a notice of those closed
stations and flag stops at which assistance cannot be provided to
handicapped persons.
(5) Assistance to handicapped persons in the use of on-train
facilities shall be provided as follows:
(i) General assistance. Recipients shall provide assistance to
handicapped persons in moving to and from accommodations, including
assistance in moving to and from wheelchairs.
(ii) Restroom facilities. All recipients shall, upon request,
provide assistance to handicapped persons needing assistance in gaining
access to rest and washroom facilities.
(iii) Sleeping car service. All recipients on all trains where
sleeping car service is provided shall, upon request, provide assistance
in gaining access to the facilities on various accommodations, such as
roomette, bedroom, or compartment.
(iv) Dining and lounge car service. Where dining cars, food service
cars, or lounge cars are inaccessible to handicapped persons, all
recipients shall, upon request, provide meal, beverage, and snack
service to handicapped persons needing such service in their
accommodations.
(6) Assistance with wheelchairs, crutches, walkers, and canes. All
recipients shall provide coach or sleeping car space to store, and shall
assist in storing, such orthopedic aids as wheelchairs, walkers,
crutches, and canes. These orthopedic aids shall be stored on the same
coach or sleeping car in which the handicapped person travels.
(7) Notice of assistance available provided in the use of on-board
facilities. All recipients shall, on all coaches, sleeping cars, dining
cars, food service cars, and lounge cars, permanently display a notice
stating where and from whom assistance in the use of facilities of
various cars may be obtained.
(8) Bedridden and stretcher-bound passengers. (i) Where equipment is
designed or modified to accept bedridden or stretcher-bound passengers
without unreasonable delay, the recipient shall provide assistance in
the boarding of bedridden or stretcher-bound persons into sleeping
quarters. Accessibility to coaches for these persons is not required.
(ii) Advance notification of 24 hours or more is mandatory in order
to ensure provision of assistance to bedridden or stretcher-bound
passengers. For the purpose of this section, assistance need not
necessarily include placing the bedridden or stretcher-bound person into
the compartment.
(9) Passengers requiring life support equipment. Recipients shall
not be required to transport persons who are dependent upon life support
equipment needing power from the vehicle.
(10) Guide dogs. Seeing eye dogs and hearing guide dogs shall be
permitted to accompany their owners on all passenger trains, and shall
be permitted in coach, sleeping, and dining cars.
(11) Services to deaf and blind passengers. Recipients shall provide
assistance to deaf and/or blind passengers, on request, by advising them
of station stops.
(12) Recipients shall notify the public that they provide services
that facilitate travel by handicapped persons.
(13) Recipients shall provide training to their employees sufficient
to enable them to carry out the recipients' responsibilities under this
section.
(44 FR 31468, May 31, 1979, as amended by Amdt. 27-3, 51 FR 19017,
May 23, 1986)
49 CFR 27.129 Appendix A to Subpart D -- Advisory Information on
Programming for Handicapped Persons
Pursuant to the planning requirements established for urbanized areas
in title 23 and the Urban Mass Transportation Act of 1964, as amended,
the Urban Mass Transportation Administration (UMTA) and the Federal
Highway Administration (FHWA) have previously jointly issued regulations
(23 CFR part 450 and 49 CFR part 613) that require the urban
transportation planning process to include special efforts to plan
public mass transportation facilities and services that can effectively
be utilized by elderly and handicapped persons. A supplementary
statement which provides advisory information on the special efforts
planning requirements is found in appendix B to this part.
As a result of special efforts in planning, projects designed to
benefit handicapped persons, including projects designed specifically to
benefit wheelchair users and those with semiambulatory capabilities,
should appear in the annual element of transportation improvement
programs submitted to UMTA. (Whenever the term ''handicapped persons''
is used, elderly persons who are handicapped by reason of age are
intended to be included.) The term ''projects'' is meant to include
significant features of larger projects (e.g., level-change mechanisms
on full-size buses), as well as specially designed services and
improvements in the coordination of existing services and resources.
''Projects'' includes payment of current operating costs of previously
purchased wheelchair-accessible equipment and includes payment of
expenses associated with indirect methods of providing service, such as
subsidies to reduce taxi fares for wheelchair users or trip coupons
provided directly to wheelchair users.
Projects funded by UMTA under section 16(b)(2) of the Urban Mass
Transportation Act of 1964, as amended (UMT Act) may be identified as
deriving from local special efforts to meet the needs of wheelchair
users and semiambulatory persons only to the extent that the following
four conditions are met: (1) The service and vehicles serve wheelchair
users and semiambulatory persons; (2) the service meets a priority need
identified in this planning process; (3) the service is not restricted
to a particularized organizational or institutional clientele; and (4)
any fares charged are comparable to those which are charged on standard
transit buses for trips of similar length.
The coordination of existing transportation available for wheelchair
users and semiambulatory persons, and funds which support the provision
or purchase of such transportation, provided by the transit operators,
governmental health and welfare agencies, and private nonprofit
organizations may be identified as a project deriving from local special
efforts. If the service and resources thus coordinated meet the four
conditions for eligible section 16(b)(2) services (see above) and appear
in the transportation improvement program, then those services and
resources themselves may be identified as deriving from local special
efforts.
Transportation improvement programs submitted to UMTA should identify
those projects that result from the wheelchair user aspect of the
handicapped special efforts requirement. Compliance with the regulation
of the General Services Administration (GSA) on Accommodations for the
Physically Handicapped (41 CFR Subpart 101-19.6) should not be
identified as deriving from local special efforts. On the other hand,
efforts which go beyond what GSA's regulation requires (e.g., making an
existing subway station wheelchair accessible when GSA's regulation does
not so require) may be part of the local special effort.
UMTA will not specify a program design to meet the ''special
efforts'' requirement. However, the following examples are illustrative
of a level of effort that will be deemed to satisfy this requirement
with respect to wheelchair users and semiambulatory persons:
1. A program for wheelchair users and semiambulatory handicapped
persons that will involve the expenditure of an average annual dollar
amount equivalent to a minimum of 3.5 percent of the financial
assistance that the urbanized area received in FY 83 under section 5 of
the UMT Act. Recipients in nonurbanized areas that receive assistance
under section 3 but not section 5 cannot, of course, use this first
illustration. Although their certifications would be submitted to UMTA,
such recipients should be guided by the requirements applicable
specifically to section 18 recipients (see 49 CFR 27.77(a)(2) and 23 CFR
part 825, appendix A, Para. 5(b)). These ''3.5 percent funds'' may be
derived from sources other than section 5. The term ''average'' permits
lower expenditure years to be balanced by higher expenditure years but
does not permit an initial delay in implementing projects. Projects
that qualify as local ''special efforts'' for wheelchair users and other
semiambulatory persons under the initial paragraphs of this advisory
information would be counted in computing the 3.5 percent.
For areas that choose to offer specialized service, there is, of
course, no obligation to make that service available to persons who can
use the regular transit system, although localities certainly may offer
the service to such persons.
2. Purchase of only wheelchair-accessible new fixed route equipment
until one-half of the fleet is accessible, or, in the alternative,
provision of a substitute service that would provide comparable coverage
and service levels.
3. A system, of any design, that would assure that every wheelchair
user or semiambulatory person in the urbanized area would have public
transportation available if requested for 10 round-trips per week at
fares comparable to those which are charged on standard transit buses
for trips of similar length, within the service area of the public
transportation authority. The system could, for example, provide trip
coupons to individuals who would then purchase the needed service.
These examples are illustrative of a level of effort that will
satisfy the ''special efforts'' requirement. They are not regulatory
standards or minimums, neither do they exhaust all valid approaches.
They are meant to guide the development of local public transportation
opportunities for wheelchair users and semiambulatory persons that in
fact meet a significant fraction of the identified need within a
reasonable time.
While the focus of the guidance in this appendix is on programming,
reasonable progress in implementing programmed projects and in ensuring
actual service is essential to meeting the ''special efforts''
requirement.
(46 FR 37492, July 20, 1981, as amended by Amdt. 27-2, 50 FR 13040,
Apr. 2, 1985)
49 CFR 27.129 Pt. 27, Subpt. E, Note
49 CFR 27.129 Subpart E -- Mass Transportation Services for Handicapped
Persons
Source: Amdt. 27-3, 51 FR 19018, May 23, 1986, unless otherwise
noted.
Editorial Note: The information collection requirements contained in
Subpart E have been approved by the Office of Management and Budget
under control number 2132-0530.
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, 27.81 --
27.103 (subpart E) were removed effective October 7, 1991. For the
convenience of the user, the text in effect until October 7, 1991,
appears as follows:
27.81 Program requirement.
Except as provided in 27.91(a) of this subpart, each recipient of
UMTA financial assistance under sections 3, 5, 9, or 9A of the UMT Act,
which provides transportation services to the general public by bus,
shall establish a program meeting the requirements of this subpart. The
program shall ensure provision of service to handicapped persons at the
full performance level required by 27.95 of this subpart within the
time called for by that section. The program shall include milestones
describing the progress the recipient shall make each year until it
achieves the full performance level.
27.83 Public participation and coordination.
(a) Each recipient required to submit a program under this subpart
shall develop its program through a public participation process that
includes, as a minimum, the following steps:
(1) The recipient shall consult, as early as possible in the planning
process, with handicapped persons and groups representing them,
transportation and social service organizations, concerned state and
local officials, and the Metropolitan Planning Organization (MPO). This
consultation shall concern the needs for service to handicapped persons
in the area served by the recipient, any weaknesses or problems in
present service or plans for service, and the types and characteristics
of service to be provided under the recipient's program. In connection
with this consultation, all cost estimates, plans, working papers, and
other information pertaining to the recipient's program planning and
service for handicapped persons shall be made available to all
interested persons.
(2) The recipient shall provide a public comment period of at least
60 days upon the recipient's proposed program.
(3) The recipient shall hold at least one public hearing, to take
place during the public comment period. Notice of the hearing shall be
provided no fewer than 30 days before its scheduled date. The hearing
shall be held in a facility accessible to handicapped persons, and the
recipient shall take appropriate steps to facilitate the participation
of handicapped persons in the hearing, including persons with impaired
visiion or hearing.
(4) The recipient shall ensure that all notices and materials
pertaining to the program, comment period, and public hearings are made
available in a form that persons with vision and hearing impairments can
use.
(b) The recipient shall coordinate the development of its program
with the MPO and submit its proposed program to the MPO for comment at
the same time as the proposed program is made available for public
comment.
(c) The recipient shall make efforts to accommodate, but is not
required to adopt, significant comments on its proposed program made by
the MPO and by the public, as part of the public participation and
coordination process. The recipient shall make available to the public,
no later than the time it adopts a program for transmittal to UMTA, a
response to significant comments. This response shall include the
recipient's reasons for not accommodating significant comments from the
MPO and the public.
(d) All recipients subject to the program requirement of 27.81 shall
provide a mechanism for continuing public participation in the
development and operation of its system of transportation for
handicapped persons. The mechanism shall ensure consultation, with
respect to planning, implementation, and operation, with handicapped
persons, available advocacy groups of handicapped persons, public and
private social service agencies, public and private operators of
transportation services for handicapped persons, and other interested
persons.
(e) Before making significant changes to its program, the recipient
shall follow the public participation process outlined in paragraphs (a)
through (c) of this section and secure UMTA approval of the altered
program as provided in 27.85 of this subpart for initial program
submissions.
27.85 Submission and review of program.
(a) Each recipient required to establish a program under 27.81 of
this subpart shall submit the following materials to the appropriate
UMTA Regional Administrator within 12 months of the effective date of
this subpart:
(1) A copy of the program;
(2) The comments of the public (including handicapped persons and the
MPO) on the program, together with the recipient's responses to these
comments, or summaries thereof;
(b) UMTA shall complete review of each recipient's program submission
within 120 days of receiving it. UMTA may extend this review period;
if UMTA does so, UMTA shall send the recipient a letter, before the end
of the 120-day period, explaining the reasons for the extension and
providing an estimated date for the completion of review.
(c) After UMTA has completed its review on each recipient's program
submission, it shall notify the recipient, in writing, that the program
is either approved as submitted, requires certain specified changes in
order to be approved, or is disapproved. If the program is not approved
as submitted, the notification shall set a time, not less than 30 nor
more than 90 days from the date of the notification, within which the
recipient shall submit a modified program to UMTA for approval. UMTA
may condition approval of the resubmitted program on specified changes
to its content or additional public participation activities.
(Amdt. 27-3, 51 FR 19018, May 3, 1986, as amended at 55 FR 40764,
Oct. 4, 1990)
27.87 Provision of service.
(a) Each recipient shall, at all times, provide the service called
for by its program, as approved by UMTA, or under its certification
pursuant to 27.91, as applicable, to all eligible handicapped persons.
(b) The recipient's obligation to ensure the provision of such
service includes, but is not limited to, the following:
(1) Ensuring that vehicles and equipment are capable of accommodating
all the users for which the service is designed, and are maintained in
proper operating condition;
(2) Ensuring that sufficient spare vehicles are available to maintain
the levels of service called for in the program, or as provided under
the 27.91 certification;
(3) Ensuring that personnel are trained and supervised so that they
operate vehicles and equipment safely and properly and treat handicapped
users of the service in a courteous and respectful way; and
(4) Ensuring that adequate assistance and information concerning the
use of the service is available to handicapped persons, including those
with vision or hearing impairments. This obligation includes making
adequate communications capacity available to enable users to obtain
information about and to schedule service. In the case of a scheduled
accessible bus system, this obligation also includes providing
information on bus schedules and other sources of information about the
service concerning which runs are made with accessible buses.
(5) Ensuring that service is provided in a timely manner, in
accordance with scheduled pickup times.
(c) Notwithstanding the provision of any special service to
handicapped persons, a recipient shall not, on the basis of handicap,
deny to any handicapped person the opportunity to use the recipient's
system of mass transportation for the general public, if the handicapped
person is capable of using that system. Nor shall a recipient otherwise
discriminate against a handicapped person in connection with the
provision of its transportation service for the general public.
(d) In the time between the effective date of this subpart and the
recipient's achievement of the full performance level established by
27.95, service at least at the level provided pursuant to the
recipient's certification under former 27.77 of this part (46 FR 37488;
July 20, 1981), as amended, shall remain in effect.
27.89 Monitoring.
(a) In connection with the triennial section 9 review and evaluation
of the recipient's activities conducted by UMTA under 49 U.S.C.
1607a(g)(2), UMTA shall review and evaluate compliance of the recipient
with this subpart and its approved program for providing transportation
services to handicapped persons.
(b) With respect to any recipient required to submit a program under
27.81 of this subpart, but which is not subject to a section 9 triennial
review audit, UMTA shall conduct a triennial review and evaluation of
the recipient's compliance with this subpart and its approved program
for providing transportation services to handicapped persons.
(c) If the recipient has fallen behind its approved schedule for
implementing service to handicapped persons or has fallen below its full
performance level for that service, the recipient shall submit a report
to the appropriate UMTA Regional Administrator on the annual anniversary
date of the approval of its program. The report shall describe the
problem or delay experienced, explain the reasons for it, and set forth
the corrective action the recipient has taken or is taking to ensure
that its approved implementation schedule or its full performance level
is met.
27.91 Requirements for small recipients.
(a) This section applies to all recipients which provide service to
the general public only in areas of 50,000 population or less.
Recipients in this category shall follow the requirements of this
section instead of the other requirements of this subpart, except that
27.87 shall apply to recipients in this category.
(b) Within 12 months of the effective date of this subpart, each
recipient shall certify that special efforts are being made in its
service area to provide transportation that handicapped persons, unable
to use the recipient's service for the general public, can use. This
transportation service shall be reasonable in comparison to the service
provided to the general public and shall meet a significant fraction of
the actual transportation needs of such persons within a reasonable
time. Recipients who have a current certification to this effect are
not required to recertify.
(c) Within nine months of the effective date of this subpart, each
recipient shall ensure that handicapped persons and groups representing
them have adequate notice of and opportunity to comment on the present
and proposed activities of the recipient for achieving compliance with
the requirements of paragraph (b) of this section. This notice and
opportunity for comment shall take place before the submission of the
certification required by paragraph (b) of this section and the report
required by paragraph (d) of this section. Each recipient shall also
ensure that there is adequate notice and the opportunity for public
comment on any subsequent significant changes to its service for
handicapped persons.
(d) Within 12 months of the effective date of this subpart, each
recipient shall submit a status report including:
(1) A description of the service currently being provided to
handicapped persons, as compared to the service for the general public;
(2) Copies or a summary of the comments of handicapped persons
received in response to the opportunity for comment;
(3) A statement of any plans to modify the service significantly;
and
(4) A statement of the resources devoted to the service for
handicapped persons.
(e) Each recipient shall submit update reports concerning its service
for handicapped persons. The recipient shall provide such a report
every three years, on a schedule determined by UMTA. Each report will
include the following information:
(1) A description of the service currently provided to handicapped
persons, as compared to the service for the general public;
(2) Any significant modifications made in the service since the
previous report, or planned for the next three-year period;
(3) Copies of a summary of the comments on any significant changes
made in the service since the previous report; and
(4) A description of the resources that have been devoted to service
for handicapped persons each year since the previous report and that are
planned to be devoted to this purpose in each of the next three years.
(f) All certifications and reports under this section shall be
submitted to the designated state section 18 agency or, for recipients
who do not receive section 18 funds, to the appropriate UMTA Regional
Administrator.
27.93 Multi-recipient areas.
(a) This section applies to any multi-recipient area; i.e., an
urbanized area including two or more recipients required to establish a
program under 27.81 of this subpart.
(b) The recipients in a multi-recipient area may enter into a compact
for purposes of compliance with this subpart. The compact shall meet
the following standards:
(1) The compact shall establish a cooperative mechanism among the
recipients to ensure the provision of combined and/or coordinated
service to handicapped persons that meet all requirements of this
subpart.
(2) The compact shall ensure the provision and sharing of funding
adequate to provide such service.
(3) The compact shall include a reasonable dispute resolution
mechanism concerning funding and service matters.
(4) The compact shall be a formal written document, signed by all
participating recipients.
(c) In order for UMTA to recognize the compact as the means through
which recipients in the multi-recipient area will comply with this
subpart, the members of a compact shall submit a copy of the signed
compact to the appropriate UMTA Regional Administrator within six months
of the effective date of this subpart. Following such timely
submission, UMTA shall acknowledge receipt of the compact within 30 days
and then regard the members of the compact as if they constitute a
single recipient for purposes of all requirements of this subpart.
(d) The deadline for the submission of a program under 27.85 by a
multi-recipient area compact shall be 12 months from the date on which
the copy of the compact is acknowledged by UMTA under paragraph (c) of
this section.
27.95 Full performance level.
(a) Scope and timing. Each recipient shall provide transportation
service to handicapped persons at the full performance level. The full
performance level is defined as meeting the criteria set forth in either
paragraph (b), paragraph (c), or paragraph (d) of this section. The
recipient shall meet this requirement as soon as reasonably feasible, as
determined by UMTA, but in any case within six years of the initial
determination by UMTA concerning the approval of its program.
(b) Criteria for special service systems. The following minimum
service criteria apply to special service systems:
(1) Eligibility. All persons who, by reason of handicap, are
physically unable to use the recipient's bus service for the general
public shall be eligible to use the recipient's special service.
(2) Response time. The recipient shall ensure that service is
provided to a handicapped person who requests it within 24 hours of the
request.
(3) Restrictions or priorities based on trip purpose. The recipient
shall not impose priorities or restrictions based on trip purpose on
users of the special service.
(4) Fares. The fare for a trip charged to a user of the special
service system shall be comparable to the fare for a trip of similar
length, at a similar time of day, charged to a user of the recipient's
bus service for the general public.
(5) Hours and days of service. The special service shall be
available throughout the same hours of days as the recipient's bus
service for the general public.
(6) Service area. The special service shall be available throughout
the circumferential service area in which the recipient provides bus
service (exclusive of extended express or commuter bus service) to the
general public. The recipient shall also ensure that service to points
outside this service area served by the recipient's extended express or
commuter bus service shall be available to handicapped persons.
(c) Criteria for accessible bus systems. The following minimum
service criteria apply to accessible bus systems:
(1) Number of buses. The recipient shall operate on the street a
number of accessible buses sufficient to meet the other service criteria
of paragraph (c)(2) and/or (3) of this section, as applicable.
(2) Criteria for scheduled accessible bus systems -- (i) Hours and
days of service. Scheduled accessible bus service shall be available
throughout the same hours and days as the recipient's bus service for
the general public. The service shall be provided at reasonable
intervals that make practicable the ready use of the accessible bus
service by handicapped persons.
(ii) Service area. Accessible bus service shall be provided on all
the recipient's bus routes on which a need for accessible bus service
has been established through the planning and public participation
process set forth in 27.83.
(iii) Fares. The fare for a trip charged a handicapped person using
an accessible bus shall be no higher than the fare charged other users
of the recipient's bus service for the same trip. Reduced, off-peak
fares for elderly and handicapped persons shall be in effect on
accessible buses.
(3) Criteria for on-call accessible bus service -- (i) Eligibility.
All persons who, by reason of handicap, are physically unable to use the
recipient's bus service for the general public shall be eligible to use
the recipient's on-call accessible bus service.
(ii) Response time. The recipient shall ensure that service is
provided to a handicapped person who requests it within 24 hours of the
request.
(iii) Restrictions or priorities based on trip purpose. The
recipient shall not impose priorities or restrictions based on trip
purpose on users of the on-call accessible bus service.
(iv) Fares. The fare charged a handicapped person using an
accessible bus shall be no higher than the fare charged other users of
the recipient's bus service for the same trip. Reduced, off-peak fares
for elderly and handicapped persons shall be in effect on accessible
buses.
(v) Hours and days of service. On-call accessible bus service shall
be available throughout the same days and hours as the recipient's bus
service for the general public.
(vi) Service area. On-call accessible bus service, including all
buses needed to complete each handicapped person's trip, shall be
provided, upon request, on all the recipient's bus routes.
(d) Criteria for mixed systems. The service criteria of paragraphs
(b) and (c) of this section apply to the special service and accessible
bus components of the system, respectively, for the portions of the
service area, and/or days and times, in which each operates. The
recipient shall ensure that the accessible bus and special service
components of the mixed system are coordinated (including transfers
between the components) so that inconvenience to handicapped users of
the mixed system is minimized.
(e) Services by other agencies and modes of transportation. In
meeting the service criteria, the recipient may use services provided,
and funded, by agencies other than the recipient, and services delivered
through other modes of transportation, if the services provided by the
other agencies or through other modes of service are part of a system of
transportation coordinated by the recipient.
(Amdt. 27-3, 51 FR 19018, May 3, 1986, as amended at 55 FR 40764,
Oct. 4, 1990)
27.97 Maintenance of effort.
(a) Any recipient which, before the effective date of this section,
has complied with this subpart through a special service system or a
mixed system, may change its mode of compliance to an accessible bus
system. Such a change is subject to the public participation and plan
approval requirements of 27.83(e) and 27.85 of this subpart.
(b) Any recipient which changes its mode of compliance with this
subpart as provided in this section shall maintain at least the level of
special service it is providing on the date of issuance of this section,
pending the effective date of final rules implementing the requirements
of section 223 of the Americans with Disabilities Act (Pub. L. 101-336),
with respect to paratransit as a complement to fixed route service.
(55 FR 40764, Oct. 4, 1990)
27.99 (Reserved)
27.101 Technical exemptions.
(a) A recipient may request a technical exemption from any provision
of this subpart. Such a request shall be made in writing, to the
Administrator of the Urban Mass Transportation Administration, through
the appropriate UMTA Regional Administrator. The request may be made in
conjunction with the submission of the recipient's program under 27.85
of this subpart.
(b) The Administrator may grant the request if --
(1) The recipient has demonstrated that special local circumstances,
not contemplated or taken into account in the rulemaking establishing
this subpart, make it unduly burdensome or unreasonable for the
recipient to comply with a generally applicable requirement; and
(2) The recipient has agreed to take action which the Administrator
determines will result in substantial compliance with this subpart
despite the grant of a technical exemption from a particular provision
of this subpart.
(c) The Administrator may grant, partially grant, or deny any request
for a technical exemption. The Administrator may also place any
reasonable conditions upon the grant of a technical exemption. The
Administrator's actions are subject to the concurrence of the Assistant
Secretary for Policy and International Affairs.
27.103 Alternate procedures for recipients in States administering
the section 5, 9, and 9A programs.
(a) If a state has elected to administer UMTA's section 5, 9, and 9A
programs for UMTA, the recipient shall submit the materials required by
27.85, 27.89(c), 27.91(f), and 27.93(c) of this subpart to the
designated state agency rather than to UMTA. The designated state
agency shall act for UMTA to review and approve, as required, the
materials submitted by the recipients. The time limits and procedures
imposed on UMTA in these provisions shall apply to the designated state
agencies.
(b) After the designated state agency has approved the recipient's
program under 27.85, it shall certify to UMTA that the recipient is in
compliance with this subpart. This certification is due to UMTA within
30 days of the approval of the program and it shall state whether the
recipient has entered into a compact under 27.93.
49 CFR 27.129 Appendix to Subpart E
The material in this appendix describes the Department's
interpretation of the provisions of this regulation. (For additional
information concerning these provisions, please refer to the preamble
published with this regulation in the Federal Register.) This material
may be supplemented or modified, in the future, by additional guidance
from the Department, including UMTA, as questions arise during the
implementation of the regulation.
This section directs UMTA recipients who receive funds under sections
3, 5, 9, or 9A; serve the general public; and operate a bus system in
an urbanized area to establish a program, consistent with this
regulation's requirements, for providing transportation services to
handicapped persons. Each of the qualifications of this requirement is
intended and important.
Recipients receiving funds only under another section (e.g., section
8 planning funds; section 18 small urban and rural transportation
program funds) do not need to create a program.
Recipients who do not provide federally-assisted transportation
services at all (e.g., an MPO that receives section 9 funds but merely
passes them through to a transit provider) are not required to establish
a program. ''Providing transportation services,'' in this context, is
not limited to actually operating a fleet of the recipient's own
vehicles with the recipient's own personnel. For example, private
provider may operate federally-assisted service (e.g., as part of a
private-sector participation initiative). The recipient would be
providing transportation service for purposes of this section, and be
responsible for ensuring that service to handicapped persons that fully
meets regulatory requirements is provided, directly or through the
private provider.
Only recipients providing transportation services to the general
public (as distinct from providing services only to elderly or
handicapped persons) are required to establish a program. Even though
section 16(b)(2) funds are taken from section 3 appropriations, agencies
receiving funds solely under this program are not covered by this
section's requirements.
Recipients under other UMTA funding programs, if they serve only
elderly and/or handicapped persons, are exempted from this requirement
for the same reason. Also, recipients who do not provide transit
services ''by bus'' (i.e., rail-only operators) are not covered by this
requirement.
Section 27.91(a) creates a separate, simpler system through which
section 18 recipients and other recipients in non-urbanized areas (even
though they receive some section 3,5,9, or 9A funds) will comply with
the requirements of this subpart. That section, and not 27.81, applies
to recipients providing service only in areas of less than 50,000
population.
The recipient's program must provide for meeting the full performance
level for services to handicapped persons within the phase-in period
provided for by 27.95. The program must include ''milestones'':
statements of the progress a recipient will make each year toward the
full performance level.
For example, a recipient planning to comply by making its buses
accessible would set forth how many accessible buses it would have by
the end of year one, year two, etc., and to what degree it would meet
each of the various service criteria at each stage. Similar items would
be presented for other needed tasks, such as driver training, structural
improvements to facilities, or information services. In its review of
recipients' programs, UMTA will consider whether the milestones are
realistic and provide for an appropriately phased build-up to the full
performance level.
These milestones are very important, and recipients should think them
out very carefully. The milestones in a recipient's program, once they
are approved by UMTA, became the benchmarks against which the
recipient's compliance is evaluated during the phase-in period. That
is, the milestones to which a recipient commits itself during the
phase-in period, like the full performance level subsequently, are the
levels of performance that the recipient must meet to be considered in
compliance.
The recipient has to include other information in its submission,
along with the program itself. Much of the required information is
listed in 27.85. Other material that should be submitted, if
applicable, concerns the continuing public participation mechanism, the
criteria and procedure for determining eligibility, and accessible bus
system routing and scheduling.
The requirements for this section apply only to those recipients
which must submit a program, since the section mostly pertains to the
public participation and coordination process involved with preparing
and adopting a program. The requirements of this section are minimum
requirements. Recipients may go beyond them (e.g., a comment period
longer than 60 days).
Subparagraph (a)(1) requires recipients to consult, as early as
possible in the planning process, with interested people and groups.
The idea of early consultation is important. Handicapped persons and
groups, transportation and social services agencies, state and local
officials, and the Metropolitan Planning Organization (MPO) should be
regarded as partners in the planning process from the outset, not simply
as commenters upon a proposed program that is already fully developed by
the recipient.
The recipient's consultation should deal with the entire spectrum of
concerns involved in planning service for handicapped individuals.
Subsection (a) (1) mentions specifically service needs, weaknesses or
problems in present service or existing plans for service, and the types
and characteristics of service to be provided under the recipient's
program.
Some recipients may already have a public participation mechanism in
place, such as an advisory committee. The recipient may use such an
existing mechanism. However, the recipient should ensure that all
relevant parties have the opportunity to be included in the consultation
process, even if they have not regularly participated in the advisory
committee. For example, a recipient may have an advisory committee with
membership drawn from several, but not all, organizations concerned with
disability issues in the area, but in which the MPO is not normally
represented. The recipient could base its consultation required by this
subparagraph on the advisory committee, being sure that members of the
additional organizations of disabled persons, social service agencies,
and the MPO also were consulted and had the opportunity to participate.
The last sentence of subparagraph (a)(1) provides that cost
estimates, plans, working papers and other information pertaining to the
recipient's program and service for handicapped persons must be made
available to all interested individuals and groups. In order to
participate constructively in the planning process, those parties with
whom the recipient is working need to have access to the information
available to and the thinking of members of the recipient's staff.
Information relevant to service cannot be viewed as ''classified'' or
withheld from interested persons. This requirement also applies to the
continuing public participation process (e.g., relevant information must
be provided to an advisory committee).
In the remainder of this section, there are serveral references to
the recipient's ''proposed program.'' A proposed program is a document
that the recipient has developed through its planning process. It
should reflect the view of the recipient concerning such key subjects as
the type and characteristics of service, schedule for implementing the
service, and the funding of the service. The proposed program should
not be merely a general request for views or represent an immutable
decision by the recipient on what it will provide. The proposal should
be sufficiently thorough and detailed to permit commenters and speakers
at the public hearing to make informed criticisms and suggestions for
improving the recipient's plans.
Subparagraph (a)(2) requires the recipient to provide a public
comment period of at least 60 days on the proposed program. During the
60-day comment period, subparagraph (a)(3) provides that the recipient
shall hold at least one public hearing. Notice of the hearing must be
provided at least 30 days before the date on which the hearing is
scheduled. The recipient could, for example, in notifying the public of
the comment period, set a date, at least 30 days later, for the hearing,
thereby avoiding the necessity for a second notice.
All hearings must be held in an accessible facility, and, if it is
reasonably anticipated that persons with vision or hearing impairments
will participate in the hearing, the recipient must take appropriate
steps to facilitate their participation. For example, the recipient
would have to ensure that an interpreter for deaf persons, or an
individual to help communicate information contained on charts, graphs,
or other visual aids to blind persons, was present at the hearing. The
recipient should also select a time and place for the hearing that
maximizes convenience to handicapped persons.
The regulation does not require that the public hearing involved be
dedicated solely to the recipient's proposed program. Adequate time
should be provided to ensure that all interested parties who wish to
participate in the hearing have the opportunity to do so. The recipient
must ensure that participation concerning the recipient's proposed
program is not deterred by such techniques as the placement of its
discussion at the end of a lengthy and time-consuming agenda. The
program need not be the only, but should be the primary, matter
discussed at any hearing held to meet the requirements of this section.
Subparagraph (a)(4) provides that the recipient shall ensure that all
notices and materials pertaining to the program, comment period, and
public hearings are made available in a form that persons with vision
and hearing impairments can use. This implies notice being given in
print (i.e., notices, placards in buses, newspaper advertisments, etc.)
and by oral means (e.g., radio spots). For written materials other than
notices of the comment period and the hearing, such as program documents
and supporting information, the recipient should ensure that there are
means of assisting visually handicapped individuals in learning the
contents of these materials. It should be emphasized that this does not
mean the recipient's personnel necessarily have to be used for this
purpose. The recipient could also work with local voluntary or social
service organizations to ensure that this service is provided.
Paragraph (b) requires the recipient to coordinate the development of
its program with the MPO as well as to submit the proposed program to
the MPO for comment at the same time as it is submitted to the public.
The MPO, and concerned state and local governments, are intended to work
with the recipient throughout the planning and implementation of the
program.
Paragraph (c) of this section is the so-called ''accommodate or
explain'' requirement. It should be emphasized that this paragraph does
not require a recipient to make a point-by-point response to every
comment. Nor does it require a recipient to agree with or adopt any or
all comments it has received. The recipient is required to respond to
''significant'' comments it receives. That is, the recipient should
respond to comments raising important substantive issues about the
proposed program. Nonsubstantive or trivial comments need not receive
responses.
Recipients' responses to comments may be relatively brief, so long as
they give cogent reasons for the recipient's decision not to adopt a
particular comment, to make a change requested by a comment, or to
respond to a concern expressed by a commenter in a way different from
that a commenter suggested.
The recipient may respond to comments in a variety of ways, such as
letters to commenters, a preamble to the final program submitted to UMTA
and made available to the public, or a separate document made available
to all interested commenters and other members of the public. This
document or documents should make clear to the public and to UMTA which
commenters (and/or categories of commenters, in the case of individuals)
made certain comments and the reasons for the recipient's responses.
Paragraph (d) concerns continuing public participation. This
paragraph is not, as such, a requirement for an advisory committee. The
recipient, as part of its program, may decide upon a mechanism to assure
continuing public participation other than an advisory committee. The
adequacy of any such mechanism would, of course, be reviewed by UMTA as
part of its review of the recipient's program submission.
In setting up its advisory committee or other mechanism, the
recipient should ensure its mechanism is widely representative of
groups, interests and points of view on its service. Sharing of all
relevant information is extremely important. An advisory committee or
other public participation mechanism is of little use -- and is
inconsistent with the intent of this regulation -- if its members are
kept in the dark and their recommendations are ignored.
However, the views of the advisory committee or other continuing
public participation mechanism are not required to be more than advice
or recommendations. The rule does not require that the recipient adopt
the suggestions of the participants in the process, or that an advisory
committee be given veto or ''sign-off'' authority. Recipients may
provide for stronger or more extensive roles for the participants in the
continuing public participation process than the rule requires, however.
Paragraph (e) requires the recipient to follow the same public
participation process for significant changes to its program as in the
adoption of its initial program submitted to UMTA. The intent of this
requirement is to ensure that interested persons and groups have the
same opportunity to participate when the recipient makes significant
changes in its program as when the initial program is put together. A
re-run of the public participation process in this situation would not
postpone the time at which the recipient is responsible for meeting the
full performance level of 27.95, however.
The Department intends this requirement to apply only to major
alterations in the scope or direction of the recipient's program and
service. It would apply, for example, if the recipient, having adopted,
in its original program, a transit authority-operated paratransit
system, decided to change to an accessible bus system. Even if the
recipient was not changing the mode of delivering transit services to
handicapped persons, the requirement could apply in the case of a major
cutback or realignment of its existing service.
Recipients would not have to renew the public participation process
in the case of fine tuning of or routine adjustments to service. (The
recipient would have to consult through the continuing public
participation mechanism on such changes, however.) If the recipient is
in doubt about whether or not it should renew the public participation
process of paragraph (a) through (c), the recipient should consult the
UMTA Regional Office for guidance.
Paragraph (a) of this section directs all UMTA recipients who must
create a program under 27.81 to submit certain materials to the
appropriate UMTA Regional Administrator for review and approval within
12 months of the effective date of this rule. Timely performance of
this duty is a condition of compliance with the regulation.
Subparagraphs (a) (1) and (2) require the recipient to submit to UMTA
copies of the comments on the recipient's program and the recipient's
responses to these comments. The recipient could submit photocopies of
the comment letters it received and the responses it sent back to
commenters to whom the recipient replied by letter. The recipient could
submit summaries of comments and responses. The recipient could send a
copy of the transcript of the public hearing. The recipient could send
summaries of the comments and its responses to them, including summaries
of presentations at the public hearing. It is not intended that
informal replies made by the recipient's officers and employees at a
hearing would be sufficient to constitute replies to comments for
purposes of the ''accommodate or explain'' requirement, however.
Whatever way the information is provided, it should allow UMTA to learn
the substance of the comments and the identity of the persons or groups
making the comments.
The planning process should involve a thorough analysis of the
alternatives for providing transportation services to handicapped
persons. The supporting documentation for the program submission should
clearly reflect this analysis of alternatives (see subparagraph (a)(3)).
Given what appear to be potential significant cost and
cost-effectiveness advantages for private-sector related alternatives
like user-side subsidies and coordination of services, and consistent
with UMTA policy statements on private sector participation and
user-side subsidies, UMTA will pay particular attention to recipients'
consideration of these alternatives.
In looking at the costs of alternatives, including the alternative
recommended in the recipient's program, the recipient should document
expected eligible costs, including recurring as well as one-time capital
and operating costs. This consideration of costs should cover the
phase-in period to the full performance level, as well as the projected
cost of providing service at the full performance level.
The Department emphasizes that the choice of the mode of service for
handicapped persons is the recipient's. However, UMTA may question the
planning process or its conclusions and, as part of its response to
recipients' submissions, call for additional analytic work or a
reconsideration of the recipient's recommendations.
Paragraph (b) sets a 120-day deadline for UMTA to complete review of
recipients' programs. If UMTA fails to meet this deadline, it has the
obligation to inform the recipient of an extension of the review period
before the 120 days have passed. The written notice must state the
reason for the extension. It will also include a reasonable estimate of
the date on which UMTA will conclude review.
UMTA will carefully scrutinize the recipient's program to ensure that
it provides for meeting the full performance level as soon as reasonably
feasible, but within the 6-year maximum phase-in period in any event.
(UMTA will have the final decision on the appropriate length of the
phase-in period.) UMTA will also check the program to ensure that its
milestones lead realistically toward the full performance level. UMTA
will not approve a program that does not meet these tests.
When UMTA does complete review, paragraph (c) provides that it will
send one of three responses to the recipient. First, UMTA can tell the
recipient that its program is approved as submitted. In this case, the
program may go into effect at once, and the program's schedule for the
implementation of service begins to run on the date of UMTA's approval
notice. Second, UMTA can specify certain changes that need to be made
in the program before it can be approved. Such a response can require
both substantive changes (e.g., a change in the time, place, or manner
of providing service) and procedural changes (e.g., additional public
participation or recipient response to comments if UMTA concludes that
procedures had not been fully adequate). UMTA can also require the
recipient to revise its analysis or conduct additional analytic work.
The phase-in period would begin at the time of the original UMTA
decision not to approve the program as submitted. It would not be
appropriate to permit the time necessary for the recipient to fix
program deficiencies to delay the implementation of full service to
disabled persons. Finally, if it appears to UMTA that the program is so
seriously deficient that the recipient needs to completely rework it, or
it has been submitted in bad faith, UMTA may disapprove the program.
UMTA has the discretion to begin enforcement action under subpart F at
this point.
If the program is not approved as submitted, UMTA's notice will give
the recipient a certain amount of time -- between 30 and 90 days -- to
make necessary changes and resubmit it. Like failure to submit a
program on time in the first place, failure to resubmit a modified
program in the time required by UMTA subjects the recipient to being
found in noncompliance with this rule. The time and notice provisions
of paragraphs (c) and (d) apply to resubmissions just as they apply to
initial submissions.
However, UMTA is not obligated to ''bounce'' deficient programs back
to recipients indefinitely. UMTA may disapprove an original or a
resubmitted program, conclude that the recipient is in noncompliance,
and begin enforcement proceedings.
Recipients have the obligation to actually provide the service to
disabled persons that their programs promise. Paragraph (a) of this
section makes the general statement that each recipient shall, at all
times, provide the service described in its program. The ''at all
times'' language is intended to ensure the continuity of service. For
example, a recipient could not, consistent with the requirements of this
section, provide service meeting all the requirements of this regulation
and its program for the first 2 1/2 weeks of a given month and then
provide no service for the remainder of the month. Nor could the
recipient provide the service for only 6 months out of the year. The
service, moreover, must be provided to all eligible persons. It would
not be consistent with this requirement for the recipient to provide
service to some eligible persons but not to others.
Paragraph (b) sets out in greater detail some of the specific
obligations that compliance with the general service provision
requirement of paragraph (a) entails. The first of these is ensuring
that vehicles and equipment are capable of being used by the users to
which the service is directed, and are maintained in proper operating
condition.
The recipient must ensure that all vehicles the recipient operates or
relies upon to meet its obligations under this subpart are consistently
maintained so that the vehicles can get to where they need to go in
order to provide service. The recipient must also ensure that lifts and
other specialized equipment needed to make vehicles usuable by
handicapped persons work consistently so that handicapped persons can
actually use the vehicles.
This paragraph also requires that the vehicles and equipment used by
the recipient be capable of accommodating all users for which the
service is designed. For example, a recipient which chose to comply
with the rule by making its bus fleet accessible would have to ensure
that the lifts, securement devices, etc. on its buses could accommodate
all types of wheelchairs in common use. A lift which accommodates
manual wheelchairs, but fails to accommodate common models of electric
wheelchairs (including, for example, the increasingly popular
three-wheel designs) does not make the buses accessible. Providing only
such limited-use lifts is inconsistent with this section. (Of course,
if a special services component of a mixed system transported persons
whose wheelchairs could not use the lifts to all destinations in the
service area, and otherwise met the service criteria, the limitation on
the use of the lifts would be permissible.)
UMTA will not mandate a particular spare ratio; the recipient's
obligation, however, is to ensure that it has sufficient numbers of
vehicles in operating condition in reserve, so that if ''front line''
vehicles must be taken off the road for maintenance or repair, there
will be no interruption or decrease in service to handicapped
individuals.
The attitudes and skills of providers' personnel are one of the most
significant factors in determining whether service for handicapped
persons will be good or inadequate. The recipient must ensure that all
personnel who may deal with handicapped individuals (whether as drivers
or as administrative personnel) know, as necessary, how to operate lifts
and other equipment properly, know how to recognize and deal with the
different kinds of disabling conditions that the users may have, and
deal with handicapped individuals respectfully and courteously. It is
the responsibility of the recipient to make sure that this training does
take place, and that handicapped users of the service are not treated
poorly as the result of inadequate training.
In order to use a transportation system, any individual needs
adequate information concerning that service. This is particularly true
of handicapped individuals. This provision requires recipients
operating scheduled accessible bus systems to provide information on
schedules and in other sources of information concerning which bus runs
are accessible. It is clear that, unless a potential user knows which
bus on which route will be accessible, the user will be unable to take
advantage of the service. A recipient need do nothing elaborate to
comply with this requirement. For example, an asterisk or other symbol
next to accessible bus runs on printed schedules would be adequate in
most cases. If the recipient has a telephone information service for
the public concerning routes and schedules, that service should provide
the same information, and do so in a way useful to hearing-impaired
persons (e.g., via a telecommunications device for deaf persons).
In addition to making sure that information and communications links
are established, the recipient must also make sure that the
communications links have sufficient capacity to accommodate the demand
for their use. A paratransit system requiring phone-in reservations
that has only one telephone, which is chronically busy, probably cannot
provide the kind of service that the recipient's program calls for.
Paragraph (c) of this section is intended to make explicit that the
regulation does not permit recipients to engage in disparate treatment,
to the disadvantage of handicapped persons, with respect to
transportation on the recipient's regular mass transit system. Even
though the recipient may also provide special services for handicapped
individuals, if a handicapped person is capable of using the recipient's
regular service for the general public, then the transit operator cannot
deny the service to the handicapped person on the ground of handicap.
This means, for example, that a recipient must permit a person using
means of assistance such as dog guides or crutches to use its vehicles
and services for the general public, if the person can do so. This
requirement and the nondiscrimination requirement of subpart A would
also bar actions by recipients that impose unreasonably different or
separate treatment for handicapped persons (e.g., an unjustified
requirement that a handicapped person, who is able to travel
independently, travel with an attendant).
Because this regulation permits a phase-in period between the
approval by UMTA of the recipient's program and the achievement by the
recipient of the full performance level, paragraph (d) is intended to
ensure that there will not be a gap in the provision of any service to
handicapped persons by the recipient. In reviewing and approving
programs, UMTA will, of course, seek to ensure that the recipient's
service to meet the requirements of this subpart is phased in at a
reasonable pace so as to provide for a steady increase in the amount and
quality of service provided up to the full performance level. If the
recipient is phasing out its former type of service, and phasing in a
new type of service, the exact point at which the new service has been
phased in, such that the old service can be phased out, will be left to
the recipient's judgment, subject to UMTA oversight.
Under section 9 of the UMT Act (49 U.S.C. 1607a (g)(2)), UMTA is
required, every three years, to review and evaluate the entire spectrum
of each recipient's federally-assisted mass transit activities. These
triennial reviews will be held on a schedule to be determined by the
UMTA Administrator; in all likelihood, they will be held in a staggered
basis, so that approximately a third of all recipients are reviewed each
year.
Paragraph (a) of this section declares that the review and evaluation
of recipients' activities under this regulation will be conducted at the
same time as the section 9 review and evaluation. The review and
evaluation of transportation services for handicapped persons will be
performed by, or at the direction of, UMTA personnel. UMTA may issue
further guidance to recipients concerning the recipient's
responsibilities in this process. This guidance may include, either on
a general or a recipient-specific basis, requests for information
necessary to assist the UMTA personnel in the review.
Some recipients will receive their first review and evaluation of
performance under this regulation in the second year that their program
has been in effect. Others will not receive their review and evaluation
until sometime during the third or fourth year after their program has
been reviewed and approved. Each recipient will, however, receive
subsequent reviews and evaluations every three years after their first
review occurs.
Paragraph (b) of this section concerns what is likely to be a very
small group of recipients: recipients who are required to submit a
program under 27.81 of this regulation but who, for some reason, do not
receive section 9 funds or otherwise are not required to go through a
section 9 review and evaluation every three years. Some small
recipients, for example, could fall into this category. For recipients
in this category, UMTA will conduct a triennial review and evaluation of
performance under this regulation just as if such a review were in
conjunction with the section 9 review process.
Paragraph (c) of this section concerns what might be called a
''slippage report.'' In its program, each recipient is required to
establish a schedule for phasing in its service for handicapped persons
until it reaches the full performance level. If recipients fall behind
this schedule, paragraph (c) requires them to submit a report to UMTA no
later than the program approval anniversary date of any year in which
such slippage occurs. The report must detail the kind and degree of
slippage that occurred, explain the reason for the problem, and set
forth the corrective action that the recipient has taken or is taking to
correct the problem and bring its entire program back on schedule. This
same reporting requirement applies in any year, after achievement of the
full performance level, in which the recipient's service, for any
reason, falls below the full performance level.
This reporting requirement is a condition of compliance with the
regulation. Failure to make the required report to UMTA is, in itself,
a ground for a recipient being found in noncompliance with its
obligations under the rule and being subject to sanctions under subpart
F.
This section sets forth a separate set of requirements that apply to
section 18 recipients and other recipients (regardless of what UMTA
funds they receive) which provide service to the general public only in
non-urbanized areas (i.e., areas of 50,000 population or less). As with
the requirements for recipients in urbanized areas, these requirements
apply only to recipients that provide service to the general public.
This section does not apply to section 16(b)(2) recipients or other
recipients providing service only to elderly and/or handicapped persons.
Recipients covered by this section are not required to follow the
requirements of the rest of this subpart, except for 27.87, ''Provision
of Service.''
For purposes of this section, the term ''recipient'' should be
understood to refer to the local government agencies and other
organizations actually providing transportation service in nonurbanized
areas. We are aware that, in the section 18 program, a state agency is
the initial recipient of UMTA funds, which the state then passes through
to subrecipient service providers. However, the requirements of this
section are not intended to apply to the state agencies involved.
Paragraph (b) requires all recipients covered by this section to
certify, within a year of the effective date of this subpart, that they
are in compliance with this rule. If a certification of the kind
required by this subsection has already been provided by the recipient
under the July 1981 interim final rule, and is still in effect, a new
certification need not be provided. This should be the case for present
section 18 recipients. Otherwise, the certification must be provided
within 12 months of the effective date of the subpart.
The effect of this requirement is that recipients have service in
place within the 12-month period following the effective date of this
subpart. Given the relatively small scale of operations by recipients
in this category, the 12-month period should be sufficient. This
constitutes the ''reasonable time'' mentioned in the regulation. A
similar amount of time would be permitted future new recipients.
The substance of the transportation service that recipients are
required to provide in order to be able to make this certification is
similar to that required for section 18 recipients under the July 1981
interim final rule. Special efforts must be made to provide
transportation that those handicapped persons unable to use the
recipient's service for the general public can use. It should be noted
that these efforts do not have to be made by the recipient itself; the
certification goes to the presence of the ''special efforts'' service in
the service area, not to whom is providing it.
The service provided by recipients must be ''reasonable in comparison
to the service provided to the general public.'' This statement embodies
a minimum service criterion for the recipient's service to handicapped
persons. It requires that the characteristics of service made available
to handicapped persons be reasonably comparable to the characteristics
of service for the general public. UMTA's monitoring of recipients'
service will focus, on a case-by-case basis, on recipients' compliance
with this criterion.
The second minimum service criterion requires that the service must
meet a ''significant fraction of the actual transportation needs'' of
handicapped persons. While the criterion stops short of requiring that
all transportation needs of handicapped persons or all demand for
service must be met, it does require that substantially more than a
token effort be made to meet that demand. Rural and small urban systems
are seldom designed to meet all transportation needs of the people of
the service area. In monitoring recipients' service, however, UMTA will
review whether the service proportionately meets the needs of
handicapped as well as non-handicapped members of the community.
Paragraph (c) follows the statutory language of section 317(c) by
directing recipients to ensure that handicapped persons and groups
representing them have adequate notice of and the opportunity to comment
on the present and proposed activities of recipients for achieving
compliance with the requirements of this regulation. This notice and
comment process may take place at any time within the first nine months
after the effective date of this subpart, but must precede the
submission of any of the required certifications or reports.
This requirement applies to all recipients covered by this section,
including present section 18 recipients who already have made the
appropriate certificate of compliance. In the case of a present section
18 recipient or other provider of existing service, the purpose of the
notice and comment period would be to identify problems in and suggest
improvements to the existing service.
The same public participation requirement also applies whenever the
recipient proposes significant changes in its service. The
participation must occur before the change is finally decided upon and
implemented.
Paragraph (d) requires each section 18 recipient to provide a
one-time status report on its service. This requirement applies to all
recipients covered by this section, including present section 18
recipients who have already made the certification of compliance. The
report is intended to be a short summary of information concerning the
four listed items.
In order to permit UMTA to continue monitoring the recipient's
activities, each recipient is required, under paragraph (e), to provide
a similar update report at three-year intervals. UMTA will establish a
schedule for the transmission of these reports: some recipients will
provide their first such report after the second year this subpart has
been in effect; others will not have to do so until after the third or
fourth year. Reports under this section normally go to the designated
state transportation agency (paragraph (f)). UMTA will review their
reports in conjunction with its normal oversight of the section 18
program.
Paragraph (a) provides that this section applies to recipients in any
multi-recipient area. A multi-recipient area is an urbanized area that
includes two or more recipients required to prepare a program under
27.81. The purpose of the section is to provide recipients in such an
area the opportunity to combine their resources to provide service for
handicapped persons on a regional basis.
This section is not mandatory. Recipients are not required to join a
compact and provide service in conjunction with other recipients in
their area, and recipients are free to comply with regulatory
requirements on an individual basis.
In most cases, all recipients in the urbanized area required to
prepare a program would have to be members of the compact in order for
the compact to be workable. There could be cases in which a compact
with less-than-unanimous membership could be viable, however;
recipients should work with their UMTA regional office to ensure that
any compact which is formed would be capable of providing service
meeting the requirements of this rule. Recipients outside the urbanized
area, or recipients who do not have to prepare a program, may also be
members of a compact.
The compact must establish a cooperative mechanism among all its
signatories to ensure the provision of combined and/or coordinated
service meeting all regulatory requirements. Such a mechanism could
take many forms, and this section does not attempt to prescribe the
institutional form the arrangement would take.
In any multi-recipient or multi-jurisdictional agreement, a key
question concerns where the money is coming from. The compact must
answer this question. It must provide for how the costs of service for
handicapped persons in the area would be apportioned among the members
of the compact, ensure the provision of adequate funding, and include
reasonable decision and dispute-resolution mechanisms concerning funding
and service matters. The compact must be a formal, binding, written
document, signed by each participating recipient. An informal
understanding among recipients in an area is not sufficient for purposes
of this section.
The recipients in an urbanized area have six months following the
effective date of this subpart to form a compact and submit their
agreement to UMTA. If the recipients fail to reach agreement and do not
submit a compact within the six-month period, then each recipient must
comply with regulatory requirements (including the 12-month deadline for
program submittal) on its own. This means that recipients should not,
while negotiating about forming a compact, neglect the early stages of
planning service of their own.
If a compact meeting the standards of this section is submitted to
UMTA in a timely fashion, then the members of the compact are treated by
UMTA as if they were a single recipient for all purposes under this
subpart, including planning, public participation, service provision,
calculation of the limit on required expenditures, monitoring, and
compliance and enforcement. It is important for recipients to
understand that one of the consequences of joining a compact is that the
members of the compact may be treated by UMTA as collectively
responsible for the failure of the compact to provide the service
required by the regulation and called for by the compact's approved
program.
After UMTA acknowledges the compact within 30 days of its receipt,
the members of the compact would submit to UMTA a single combined
program for approval under 27.85. The program submitted on behalf of
the compact's members would have to reach UMTA 12 months after the date
the signed compact was acknowledged by UMTA, rather than 12 months after
the effective date of this regulation. This provision is intended to
permit adequate time for planning on an areawide basis.
If, subsequent to the six-month period, recipients that did not
originally form a compact decided to do so, UMTA has the discretion to
acknowledge it. However, in such a case, the compact members would have
to submit, for UMTA's review and approval, a new, joint program for
providing service to handicapped persons. This program would need to
provide adequate information on how the transition from individual
compliance to joint compliance with the rule would work. The individual
programs that had been previously approved, and the service provided
according to them, would remain in effect until the new combined program
was approved.
By the same token, if an existing compact dissolves, the members
would then have to submit individual programs to UMTA for approval. The
same would hold true for a member that pulled out of a compact. If a
recipient were to drop out of a compact, it would be required to
continue to provide its services per the compact agreement until its
own, new, independent program were approved and in operation.
(a) Timing. Under 27.85, recipients have a year from the effective
date of the new subpart E to submit their program to UMTA. UMTA has 120
days to review it. Assuming UMTA acts on the program within that time
(approval, disapproval, or remand to the recipient to fix deficiencies),
the phase-in period would begin to run no later than 16 months from the
effective date of the rule.
During this period, recipients are obligated to phase in their
service. This is not intended to be a period of delay and inaction;
the recipient is obligated to implement service according to the
milestones set forth in its program on time (see discussion of 27.81).
The phase-in period may run for a maximum of six years. Many
recipients (e.g., those who are starting a new system or switching to a
different mode of providing service) might need all or nearly all of the
six-year period. On the other hand, some recipients have systems that
may come close to meeting the full performance level at the present
time. It would be contrary to the intent of the rule, for example, to
permit a recipient that had 90 percent of the buses it needed to meet
the service criteria for an accessible bus system to take six years to
acquire the other ten percent.
The rule provides that the recipient's plan and milestones must
provide for attaining the full performance level as soon as reasonably
feasible. UMTA, in reviewing plans, will approve phase-in periods for
each transit authority on a case-by-case basis, reflecting this policy
as well as the realistic needs of each recipient for time to phase-in
its service, up to the six-year maximum.
This paragraph notes that a recipient can comply by meeting the
requirements of either paragraph (b), or (c), or (d). This language is
intended to emphasize that the recipient may decide to operate either a
special service system, an accessible bus system (of either type), or a
mixed system. A recipient, for example, is not required to have both an
accessible bus system and a special service system. The decision on
which service option to implement is intended to be made by the local
recipient.
The remainder of this section lists the service criteria applicable
to special service, accessible bus, and mixed systems. The Department
has established six service criteria that apply to all the modes of
service to handicapped persons. These concern eligibility, hours and
days of service, service area, fares, restrictions and priorities based
on trip purpose, and response time. Paragraphs (b), (c), and (d)
explain how these six basic criteria apply, specifically, to each mode
of service. Though the criteria are essentially the same, the detail of
their application to the various modes of service vary somewhat in order
to make sense in view of the differing characteristics of the different
types of transportation.
(b) Service criteria for special service systems. The following
criteria apply no matter what type of special service the recipient
provides (e.g., transit authority-operated paratransit, user-side
subsidy).
(1) Eligibility. The eligibility criterion provides that the
recipient must treat as eliglible any individual who, at the time he or
she would receive service is, by reason of a disability, physically
unable to use the recipient's bus service for the general public. A
recipient may, of course, voluntarily provide service to other persons
as well, such as non-disabled elderly persons or mentally handicapped
individuals. However, the cost of providing this service to additional
users is not an eligible expense under 27.99.
This provision is not intended to permit recipients to turn away from
their special service systems users who would be unable to use an
accessible bus system for reasons unrelated to the system's
accessibility. For example, physical or terrain barriers, bad weather,
or distance may prevent some handicapped persons from getting to a bus
stop. These persons are still required to be treated as eligible for
special service, because they could board and use fully accessible buses
if they were able to get to a bus stop.
The Department recognizes that persons with cognitive disabilities
also have a need for transportation. Many such persons, would be able
to use the regular system with appropriate training, and the Department
encourages the development and implementation of such training programs
to increase the transportation opportunities for mentally handicapped
persons. It is also necessary that training be provided for the drivers
so that they will better understand, be patient with, and appropriately
respond to questions from mentally retarded persons.
The rule does not specify the means a recipient may use to determine
physical inability to use the regular bus system, although reasonable
''functional criteria'' may be used. The means the recipient would use
to determine physical inability to use the regular bus system would be
incorporated in the program submitted for UMTA approval.
The Department does not intend to require recipients to use age, by
itself, as a basis for determining that an individual is physically
unable to use the regular bus system. No one need be presumed to be
physically unable to use the regular bus system just because he or she
has reached a certain birthday. Many elerly persons may suffer mobility
impairments or other handicaps that physically prevent them from using
the regular bus system, but it is these disabilities, not age itself,
that determines eligibility.
The key is whether or not a particular elderly person can physically
use the service for the general public. Some 80 year old individuals
may be able to physically use the service for the general public, and
some 65 year old individuals may be unable to do so. If, because of
age, an individual is physically unable to use the regular service --
even if that individual does not have a specific medical condition --
that individual is eligible for the special service.
A similar analysis applies to young children. If, because the
recipient has a reasonable, nondiscriminatory policy against permitting
very young children to ride buses unaccompanied, or because such
children cannot read destination signs, such individuals cannot use the
bus system, these facts do not make them eligible to use the special
service. This is because their youth, rather than a handicap, caused
their inability to use the regular bus system (which is not, in any
event, a physical inability).
It would not be consistent with this rule, however, for a recipient
to deny a non-disabled child the opportunity to accompany a disabled
parent or other adult on the special service system. This could be very
important, for example, in allowing the parent to take the child to a
medical appointment. The converse is also true. A non-disabled parent
or other adult would have to be given the opportunity to travel with a
disabled child.
The rule does not prescribe any particular procedures that recipients
must use to determine eligibility. Existing systems use such means as
letters from a doctor, certifications by social service organizations,
and eligibility determinations (e.g., concerning meeting functional
criteria) by the transit provider itself. Whatever procedure is used,
the recipient needs to ensure that the procedure is prompt, avoids
unnecessary procedural obstacles, does not impose more than nominal
costs on potential users, and is consistent with the dignity of
handicapped persons applying for eligibility. The eligibility procedure
should be spelled out in the recipient's program.
The Department intends that all users eligible under the Department's
standard be permitted to use a recipient's special service, regardless
of the user's place of residence. A visiting wheelchair user from City
A is just as eligible, under the terms of this section and 27.87, as a
wheelchair user from City B to use the latter city's special service
system. Recipients may need to waive or abbreviate the certification
procedures they use for their regular local riders. The same point
applies to persons with temporary, as opposed to permanent,
disabilities.
(2) Response time. By response time, we mean the total period from
the time the disabled person calls the special service provider to
request service to the time the service is actually provided to the
handicapped person (i.e., pickup). Recipients are obligated to provide,
as well as schedule, service, within the required period. (see also
27.87(b)(5), concerning timely provision of service).
We do not intend, however, to view recipients as being in
noncompliance solely because of an occasional late pickup. Repeated,
chronic failure to provide service within 24 hours of a request,
however, is inconsistent with this criterion and with the recipient's
obligations under this criterion.
The Department intends that this criterion be administered with
reasonable administrative flexibility, for the benefit of both users and
providers. For example, it may not be reasonable for a recipient to
insist that a user call the recipient at 7:30 a.m. on Monday in order to
get service at 7:30 a.m. Tuesday, even though this insistence would be
literally consistent with the 24-hour response time criterion. A call
at any point on Monday morning should usually be sufficient to permit
the recipient to do the advance planning necessary for its morning trips
on Tuesday.
Likewise, a recipient with no weekend bus service might not provide
special service on weekends. Literally interpreted, the 24-hour
criterion would force the recipient to open its call-in reservation
office on Sunday to take reservations for Monday trips. The Department
intends, in such a situation, that the recipient be able to keep its
office closed on the weekend, taking reservations for Monday on the
previous Friday.
The Department, then, interprets the 24-hour criterion to mean ''a
reasonable time on the previous business day'' in many cases. In
addition, this criterion is not intended to prohibit advance sign-up
requirements for special-purpose trips (e.g., for a group field trip).
Nor is it intended to prohibit a recipient from allowing a user to make
a reservation for more than a day in advance (e.g., from calling on
Monday to reserve a trip for Thursday).
(3) Restrictions or priorities based on trip purpose. This criterion
is intended to prohibit recipients from determining that they will not
provide service for certain sorts of trips, which they have determined
to be of relatively low importance, or from providing trips for such
purposes only after requests for the trips they deem to be of higher
importance have been fulfilled. This criterion, however, is not
intended to preclude recipients from establishing subscription services.
Trips on the subscription service may be limited to certain purposes
(e.g., recurring work or medical trips). However, a recipient which
operates a subscription service may not deny or delay transportation to
other individuals, for other purposes, on the ground that all capacity
is exhausted by subscription service and still meet this criterion.
(4) Fares. The fare charged for a trip to a user of the special
service is required to be comparable to a trip of similar length, at a
similar time of day, on the recipient's bus system. We recognize that,
in most cases, a trip taken on special service will not be identical, in
route or in length, to similar trip taken on the regular bus system. We
recognize also that the cost and convenience characteristics of special
service systems differ from those of bus systems.
The key to determining an appropriate fare for the special service
trip would be to calculate the cost of a similar trip on the regular bus
system that the individual would take to get from his origin to his
destination, if he or she were not handicapped, including the cost of
transfers, if any (or zone change charges, express bus fares, etc.).
Should there not be any reasonably equivalent trip that a user of the
bus system could take, then the bus fare used for purposes of comparison
would be derived by comparing the special service trip taken by the
handicapped person to a bus trip of similar length elsewhere in the
recipient's bus system.
Determining ''comparability'' between the bus fare for a similar trip
and the special service fare is not an exact science. Decisions must be
made on a case-by-case basis, taking into account such factors as the
relative costs of providing the service, the time and convenience
factors affecting users, and the Department's policy against pricing
service out of the reach of users. It is likely, for example, that a
$1.50 fare for special service would not be out of line, compared to a
basic 80 cent fare for a similar bus trip, in most cases. At the other
end of the scale, charging a special services user $20 for the same trip
would be far removed from ''comparability,'' because it would be grossly
disproportionate to the bus fare and would deter disabled persons from
using the service.
In doubtful cases falling in the middle of the scale, recipients
should consult with UMTA. Fare levels for special service are, of
course, one of the items that recipients should cover in their program
submissions. While determinations are case-by-case, it is likely that
UMTA would question fare levels that rose above two or three times the
bus fare for a similar trip at a similar time of day.
This criterion deals with the fare charged the individual disabled
user of the special service. If the bus fare between Point A and Point
B is 80 cents, then the recipient can charge a special service user no
more than a comparable fare for a similar bus trip. However, this
requirement is not intended to preclude the common arrangements between
recipients and social service agencies in which the social service
agency subsidizes a considerable portion of the cost of a trip. The
amount of such a subsidy is a matter between the recipient and the
agency.
(5) Hours and days of service. If a recipient operates its bus
service from 6:00 a.m. to midnight, seven days a week, then special
service (e.g., paratransit or user-side subsidy) must be available
throughout at least the hours 6:00 a.m. to midnight, seven days a week.
By saying ''throughout'' this period, the Department intends that
service be available at any time during these hours. Providing service
only during peak hours, or only from 6-7 a.m. and 10-11 p.m. would not
be consistent with this requirement.
(6) Service area. A recipient must provide special service
''throughout'' the ''circumferential'' service area in which it provides
regular bus service. This means that the recipient must provide this
service not just along transportation corridors served by buses, but to
all points of origin and destination within this area. (This is not
intended to literally require door-to-door service, however. As long as
the service is from the building or other location of origin to the
building or other destination location, the criterion would be
satisfied. Actually assisting a handicapped person from the door to the
curb, for example, is not required.) A ''many-to-few'' system, with
limited origins or destinations within the urbanized area, would not be
consistent with the requirement to provide service ''throughout'' the
area.
The recipient could determine the extent of the ''cricumferential''
service area in a number of ways. As the term implies, the recipient
could simply draw on a map a circle encompassing the area in which all
its regular bus routes operate. Alternatively, a recipient could take
the outer termination points of its routes and ''connect the dots,''
resulting in boundaries for the service area that more precisely follow
the contours of the actual bus service area. Where the normal service
is within the urbanized area, the Department would also have no
objection, in many cases, to a recipient using the urbanized area as a
service area for this purpose. Particularly for a recipient that
already provided bus service to most parts of the urbanized area, this
approach could be administratively simpler.
In determining the extent of its service area, the recipient need not
encompass extended commuter or express bus routes. For example, many
recipients may have a city/suburban service area that is served
regularly during peak and non-peak hours. In addition, the recipient
may have peak-hour express commuter service to more distant exurban
points. These commuter bus ''spokes'' do not extend the circumferential
''hub'' area that the recipient must serve with origin-to-destination
special service.
For service (e.g., commuter bus) extending outside the basic service
area, the recipient is required to provide service to handicapped
persons only to and from the same points (e.g., bus stops) served by its
buses for the general public. This service could be by special service
following the bus route or accessible commuter bus, and would have to
run only at the times when the commuter buses operated. Service to
other origins and destinations outside the basic service area is not
required.
The circumferential service area need not necessarily be the same at
all times of the day or week. For example, some recipients might not
offer any late-night or weekend bus service on many routes outside the
central city. The service area for special service could shrink
proportionately at these times.
(c) Service criteria for accessible bus systems. The final rule does
not contain any specific requirement for the number of accessible buses
a recipient must own and operate. Rather, subparagraph (1) of this
paragraph says that the recipient must operate, on the street, enough
buses to ensure that it meets the service criteria of subparagraphs (2)
and/or (3).
To operate this number of buses on the street, recipients will need
to consider the number of accessible buses they need in their reserve
fleets. It is clear that in order to maintain the appropriate number of
accessible buses on the street, a recipient will need to have some
accessible buses in reserve in order to cover maintenance down time and
other contingencies. A recipient would not comply with this
subparagraph (or with 27.87) if it owned sufficient accessible buses to
meet the service criteria when all wer operating, but, for lack of
reserve accessible buses, was unable to keep enough buses actually on
the street to meet the criteria at all times.
Subparagraph (2) sets forth the other service criteria for scheduled
accessible bus systems. A scheduled accessible bus system is simply one
in which accessible buses are scheduled to be used for (and are used
for) certain runs on certain routes. This use must be regular and
consistent.
Subparagraph (2)(i) requires the scheduled accessible bus service to
be available throughout the same days and hours as the recipient's bus
service for the general public. For example, if a recipient's regular
bus service runs from 6 a.m. to 12 midnight, then the scheduled
accessible bus service must be available throughout this 18-hour period.
Running accessible buses only during peak hours, or having only the
first and last bus runs on a route accessible, would not be consistent
with this criterion.
The scheduled accessible bus service running throughout this 18-hour
period would have to be provided at reasonable intervals that make
readily practicable the use of the service by handicapped persons. The
regulation does not establish a specific requirement for what these
intervals must be. The recipient's judgment about appropriate
intervals, which should be informed by the rule's public participation
and planning process and which is subject to UMTA review as part of the
recipient's program submission, may vary according to such factors as
demand for accessible service on a particular route and the time of day.
Every interval on evey route in the system need not be the same. But
intervals so wide or irregular as to provide merely token or perfunctory
service, or which are significantly inconsistent with demand for
accessible service, would not comply with this criterion.
Subparagraph (2)(ii) requires accessible bus service to be provided
on all routes throughout the recipient's service area on which a need
for service has been established through the rule's planning and public
participation process. By saying ''throughout the service area,'' this
provision is not limited to service within the basic circumferential
service area. Any route on which the recipient provides regular bus
service (including extended commuter routes and express bus service) is
potentially required to have accessible service.
Whether the potential requirement for accessible service on a given
route becomes actual depends on whether the planning and public
participation process shows that a need exists for accessible service on
that route. The Department intends that a need for accessible service
on a route be regarded as having been established when it is shown that
one or more handicapped persons are likely to make reasonably regular
use of bus service along some part of the route.
For example, bus routes serving centers for independent living,
important transportation terminals, major medical facilities,
universities, major employment centers, and other origins and
destinations that are likely to generate trips by handicapped persons
would probably need to have accessible service. However, a need for
accessible service could also arise on a suburban route because one or
more handicapped persons wished to use that route for trips to work,
shopping, or other purposes on a reasonably regular basis.
The Department believes that it would be desirable for recipients
choosing a scheduled accessible bus system to make some provision for
providing services to disabled persons whose origin or destination is
not on an accessible route. The form of such service is up to the
recipient, however.
As with service intervals, the routes served by accessible bus
service may change over time, as new service needs arise and former
service needs disappear. Changes in the route structure of accessible
service are also appropriate subjects for consultation through the
continuing public participation process.
Subparagraph (2)(iii) provides that the fare for a handicapped person
using the accessible bus system cannot be higher than the bus fare paid
by other passengers. Everyone who gets on the bus to go from Point A to
Point B pays the same fare, except that the elderly and handicapped
half-fare program of 49 CFR 609.23 continues to apply in the accessible
bus context.
Subparagraph (3) contains service criteria for on-call bus service.
An on-call accessible bus system is one in which accessible buses are
not regularly scheduled on any particular routes or runs. Instead,
handicapped persons wanting to use accessible buses call the transit
provider and arrange for an accessible bus to come by a particular bus
stop on a given route at a certain time.
Some of the criteria for on-call accessible bus service are virtually
identical to the special service criteria. The eligibility
(subparagraph (3)(i)), response time (subparagraph (3)(ii)), and the
restrictions and priorities based on trip purpose criterion
(subparagraph (3)(iii) are in this category. The fares criterion
(subparagraph (3)(iv)) is identical to the fares criterion for scheduled
accessible bus service.
Subparagraph (3)(v) concerns days and hours of service. Like its
counterpart in the scheduled accessible bus service context, it requires
service to be provided throughout the same days and hours as the
recipient's bus service for the general public. This means that a
handicapped person can request that any bus run the recipient makes,
during any time the run is made for the general public, be made with an
accessible bus. The recipient is obligated to fulfill the request.
There is no provision concerning the intervals at which service is to be
provided. Service is provided in response to all requests made for it.
The service area criterion (subparagraph (3)(vii)) requires
accessible service to be provided on all the recipient's routes, on
request. This means that when the recipient receives a request from a
handicapped person for accessible service, the recipient must fulfill
this request regardless of the route on which the service is requested
(including extended commuter routes and express bus runs).
There is, however, no reference to establishing the need for bus
service on particular routes through the planning process. This is
because, in an on-call accessible bus system, need for service is
established by each individual request for it, rather than on a generic
basis for scheduled service on a route.
This subparagraph also specifies that ''all buses needed to complete
the handicapped person's trip'' have to be provided. For example,
suppose a handicapped person has to take a bus on route A to a given
stop, and then transfer to a route B bus, in order to reach his or her
destination. The recipient must ensure that the B bus, as well as the A
bus, is provided at the appropriate time.
A recipient may comply with the rule by setting up an accessible bus
system incorporating elements of both scheduled and on-call accessible
service. For example, the recipient could operate scheduled accessible
bus service during peak hours while using on-call service during
off-peak hours. A recipient could operate scheduled service on certain
heavily-used corridors while using on-call service elsehwhere. The
scheduled and on-call components of the service would each have to meet
the service criteria for the respective types of service, and there
could not be ''gaps'' in the overall service that left some routes,
times, etc. unserved for handicapped persons.
For purposes of this rule, an accessible bus is one of that a
handicapped person, including a wheelchair user, can enter and use.
Currently, an accessible bus usually means a bus equipped with a lift.
The Department does not intend to mandate the use of a particular piece
of technology, however. If a device or bus design other than a
lift-equipped standard transit bus can produce the same or better
results for handicapped persons than present technology, then the
Department will be willing to consider regarding it as meeting the
accessible bus requirement.
(d) Service criteria for mixed systems. A mixed system is simply one
in which some parts of the service area, or some days or times of day,
are served by an accessible bus system, and others are served by a
special service system. The key thing to remember about a mixed system
is that each component must meet all criteria pertaining to that
component. The overall system cannot have ''gaps'' that leave some
areas, times, etc., unserved by service for handicapped persons.
In a mixed system, the special service and accessible bus components
are not required to duplicate each other's efforts. Consequently, the
special service system would not have to provide parallel service along
accessible bus corridors. For example, the special service system would
not have to honor a request from a handicapped person to be picked up at
his home, situated reasonably close to a bus stop on an accessible
corridor, and be transported to a destination served by a bus route
using that stop.
The recipient might also reduce the scope of the special service it
had to provide by linking the ends of or other strategic points on
accessible routes with an accessible shuttle service, so that someone
wanting to travel from a point along Route A to a destination at the end
of Route B could complete his trip using only accessible buses and the
shuttle. Except where it would duplicate accessible bus service,
however, the recipient's special service would have to meet all service
criteria applicable to any special service system (e.g., the special
service system would have to pick up the same handicapped person from
his or her home if he or she were going to a location not on the nearby
accessible route or one accessibly connected with it).
The recipient is responsible for coordinating the components of its
mixed system so as to minimize inconvenience to handicapped users. This
coordination should include consideration of transfers between
components. The coordination of mixed system components is one of the
features UMTA will evaluate as it reviews the program submissions of
recipients planning mixed systems.
(e) Services of other providers and through other modes. Paragraph
(e) states the principle, for all service modes, that a recipient may
count the services of other providers toward meeting the full
performance level. This is true even though the expenditures of these
other providers are not eligible expenses under 27.99.
For example, suppose that a social service agency operates a
subscription service that transports wheelchair users who need kidney
dialysis to medical facilities where the treatment takes place. As part
of a coordinated transportation system for handicapped persons in the
urbanized area, the recipient is able to refer persons in this category
to the social service agency, which provides the dialysis trips instead
of the recipient itself. The recipient can count this service as part
of the service meeting its full performance level.
This paragraph also provides that service provided through other
modes of transportation may be counted toward meeting the service
criteria. For instance, suppose a transit authority operates an
accessible rail system. The recipient chooses to meet the full
performance level through making its bus system accessible. Like many
bus/rail operators, however, the recipient uses its buses to feed
passengers into and out of the rail system. The recipient could feed
disabled passengers into the accessible rail system in the same manner
as it did other passengers, and would not have to run bus service that
duplicated the rail lines. The recipient could treat both its bus
service from Point A to a rail station and the accessible rail service
from the station to Point B as contributing to meeting the service
criteria.
The key is coordination by the recipient of these services into a
coherent whole. The mere facts that a social service organization may
be providing some transportation somewhere in the urbanized area, or
that there may be an accessible rail system in the same area, unless
these services are in a system coordinated by the recipient, are
irrelevant to the recipient's ability to meet the full performance
level.
This provision permits any recipient to request a technical exemption
from any provision of this subpart. Such a request can be made at any
time, as an independent request. It is also possible for a recipient to
submit a technical exemption request as part of, or in connection with,
the recipient's program submission. Section 27.101(b) clearly sets
forth the standards for granting exemptions under this rule. These
standards are consistent with the standards DOT has applied to requests
for exemptions in the past. First, there must be special local
circumstances. That is, the reasons specified for the requested
exemption must be, if not literally unique, quite specific to the local
area requesting the exemption. The Department will not grant an
exemption based on circumstances common to a broad class of recipients.
An exemption from a regulatory requirement based on circumstances common
to many recipients would constitute, in effect, a rulemaking of general
applicability, which may be made only through normal rulemaking
procedures.
Second, the circumstances used to support the exemption request must
involve matters not contemplated, or taken into account, as part of the
rulemaking process for this rule. The Department is aware that it
probably has not thought of all possible issues or situations that can
arise. This exemption procedure is intended to apply to matters not
dealt with in this rulemaking. If, on the other hand, the Department
has received and considered comments on how a certain issue or situation
has been handled, and then made a decision, the exemption process is not
a mechanism for reconsidering a regulatory decision the Department has
made.
Third, the applicant for an exemption must demonstrate that the
circumstances cited make compliance with the rule unduly burdensome or
unreasonable. The undue burdens or unreasonableness, consistent with
the two standards discussed above, must be specific to the particular
grantee, and not something affecting grantees, or a broad class of them,
in common.
Fourth, the recipient must show that, if it is granted the exemption,
it will take some alternate action that will substantially comply with
the regulation. The grant of an exemption is not a license for
noncompliance; it is agreement by the Department and the recipient that
the recipient will take action adequate to provide transportation
services to handicapped persons, even though it is, in some respects,
excused from following the letter of the regulation. It should be
emphasized, however, that the exemption provision is not intended to
permit recipients to fashion ''do-it-yourself'' modifications of the
requirements of the regulation.
The Department may grant a request for a technical exemption, in
whole or in part, or deny it. The Department may also place any
reasonable conditions on the grant of the exemption. The UMTA
Administrator will sign grants or denials of exemption requests, and
such requests should be addressed to the Administrator. In keeping with
existing DOT practice, the Assistant Secretary for Policy and
International Affairs must concur in grants or denials of exemption
requests under this rule.
Section 27.103 provides a slightly different procedure for submitting
documents under this subpart if a state has elected to administer UMTA's
sections 5, 9, and 9A programs for UMTA. This procedure applies to
urbanized areas of under 200,000 population. If a state has made this
election, the designated state agency is the actual recipient of the
UMTA funds and the state agency, in turn, passes them through to the
urbanized area. This is similar to the section 18 program.
If the election is made, the local recipient must send the program
required under 27.85, the slippage report under 27.89(c), the
certification and report under 27.91(f), and any compact under
27.93(c) to the designated state agency and not to UMTA. (The state
would have to inform UMTA when a slippage report was received). The
designated state agency acts for UMTA to review and, as necessary,
approve these documents. In doing so, any deadlines which the
regulation imposes on UMTA apply to the designated state agency. For
example, the designated state agency would, under 27.85(b), have to
complete its review of the local recipient's program within 120 days of
its submission. Similarly, the time extensions under 27.85(c) would
also apply to the designated state agency.
Section 27.103(b) requires the designated state agency to certify to
UMTA that the recipients in its state are in compliance with this
subpart. This certification can cover more than one recipient, but it
is due to UMTA no later than 30 days after the designated state agency
approves the recipient's program.
It is important to note that the state's election to administer these
programs is voluntary. Any recipient located in a state not so electing
must send its material to UMTA. Also, the provisions in this section do
not apply to small recipients covered by 27.91.
Subpart F ( 27.121-27.129) of 49 CFR part 27 concerns enforcement of
the obligations of recipients under subpart E, the mass transit program
requirements, as well as all the other subparts of this regulation.
Briefly, subpart F provides that when, as a result of a complaint
investigation or compliance review, the Department learns that a
recipient appears to be in noncompliance, the Department first attempts
to resolve the problem informally.
This informal resolution step is the most important part of the
enforcement process, from the Department's view. At this stage, the
Department works with the recipient to solve the planning, management,
or operational problems that led to the enforcement action. The aim of
the process is not to impose sanctions on the recipient, but to correct
the situation so that the recipient provides service to handicapped
persons as the regulation requires. Only if informal resolution fails
does the Department resort to formal enforcement proceedings.
If there is reasonable cause for the Department to believe that the
recipient is in noncompliance, and that the noncompliance cannot be
resolved informally, the Department notifies the recipient that it
proposes to suspend, terminate, or refuse to provide Federal financial
assistance to the recipient. The recipient has the opportunity to
present its case at a hearing before an administrative law judge. The
judge makes a recommended decision to the Secretary, who may accept,
reject, or modify the recommended decision. The Secretary's decision is
administratively final (it may be reviewed by a Federal court under the
Administrative Procedure Act) and the sanctions the Secretary orders
remain in effect until the recipient comes into compliance with the
regulation.
Any person who wishes to submit a complaint alleging that a recipient
is in noncompliance with this regulation should send the complaint to
the following address: Director, Departmental Office of Civil Rights,
U.S. Department of Transportation, 400 7th Street, SW., Washington, DC
20590.
Noncompliance should be understood simply as the failure by a
recipient to do what the regulations require of it, or action by a
recipient contrary to regulatory prohibitions. The following are
examples (not intended to be an exhaustive or exclusive list) of conduct
under subpart E that could be regarded as noncompliance, for recipients
to which the various requirements apply:
Failure to have a program consistent with the requirements of 27.81;
Failure to follow any of the public participation requirements of
27.83;
Failure to submit the program documents to UMTA within the time
frames of 27.85;
Failure to make timely changes in a program UMTA did not approve as
submitted under 27.85, such that UMTA can approve the program as
consistent with this regulation;
Failure to provide service, as required under 27.87;
Failure to submit a ''slippage report'' in the circumstances in which
27.89(c) requires one;
Failure by a small recipient to certify, provide for public
participation, or provide reports as required under 27.91.
(Amdt. 27-3, 51 FR 19018, May 3, 1986, as amended at 55 FR 40764,
Oct. 4, 1990)
49 CFR 27.129 PART 28 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS
OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF
TRANSPORTATION
Sec.
28.101 Purpose.
28.102 Application.
28.103 Definitions.
28.104 -- 28.109 (Reserved)
28.110 Self-evaluation.
28.111 Notice.
28.112 -- 28.129 (Reserved)
28.130 General prohibition against discrimination.
28.131 Illegal use of drugs.
28.132 -- 28.139 (Reserved)
28.140 Employment.
28.141 -- 28.148 (Reserved)
28.149 Program accessibility: Discrimination prohibited.
28.150 Program accessibility: Existing facilities.
28.151 Program accessibility: New construction and alterations.
28.152 -- 28.159 (Reserved)
28.160 Communications.
28.161 -- 28.169 (Reserved)
28.170 Compliance procedures.
28.171 -- 28.999 (Reserved)
Authority: 29 U.S.C. 794
Source: 56 FR 37296, Aug. 6, 1991, unless otherwise noted.
49 CFR 28.101 Purpose.
The purpose of this part is to carry out section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies, including this
Department, or the United States Postal Service. 49 CFR part 27
implements section 504 in the Department's financial assistance
programs.
49 CFR 28.102 Application.
This part applies to all programs or activities conducted by the
Department except for programs and activities conducted outside the
United States that do not involve individuals with handicaps in the
United States.
49 CFR 28.103 Definitions.
For purposes of this part, the term --
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the Department. For example, auxiliary aids
useful for persons with impaired vision include readers, Brailled
materials, audio recordings, and other similar services and devices.
Auxiliary aids useful for persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the Department's alleged
discriminatory actions in sufficient detail to inform the Department of
the nature and date of the alleged violation of section 504. It shall
be signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Current illegal use of drugs means illegal use of drugs that occurred
recently enough to justify a reasonable belief that a person's drug use
is current or that continuing use is a real and ongoing problem.
Drug means a controlled substance, as defined in schedules I through
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
Department or DOT means the U.S. Department of Transportation,
including the Office of the Secretary and all operating administrations.
Departmental Element (or ''DOT element'') means any one of the
following organizations within the Department.
(a) Office of the Secretary (OST).
(b) United States Coast Guard (USCG).
(c) Federal Aviation Administration (FAA).
(d) Federal Highway Administration (FHWA).
(e) Federal Railroad Administration (FRA).
(f) National Highway Traffic Safety Administration (NHTSA).
(g) Urban Mass Transportation Administration (UMTA).
(h) Research and Special Programs Administration (RSPA).
(i) Maritime Administration (MARAD).
(j) St. Lawrence Seaway Development Corporation (SLSDC).
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Illegal use of drugs means the use of one or more drugs, the
possession or distribution of which is unlawful under the Controlled
Substances Act (21 U.S.C. 812) The term ''illegal use of drugs'' does
not include the use of a drug taken under supervision by a licensed
health care professional, or other uses authorized by the Controlled
Substances Act or other provisions of Federal law.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment --
(i) Includes any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following
body systems: Neurological; muscular; skeletal; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin;
and endocrine;
(ii) Includes any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities; and
(iii) Includes, but is not limited to, such diseases or conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, drug addiction, and
alcoholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Department as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the Department as having such an
impairment.
Qualified individual with handicaps means --
(1) With respect to education services provided by the U.S. Merchant
Marine Academy or the U.S. Coast Guard Academy, an individual with
handicaps who meets the essential eligibility requirements for
participation in and receipt of such services, including the physical
standards applicable to the U.S. Naval Reserve or the U.S. Coast Guard.
(2) With respect to any other Department program or activity under
which a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Department can demonstrate would result in a fundamental alteration in
its nature. The essential eligibility requirements include the ability
to participate without endangering the safety of the individual or
others.
(3) With respect to any other program or activity, an individual with
handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity
and
(4) Qualified handicapped person as that term is defined for purposes
of employment in 29 CFR 1613.702(f), which is made applicable to this
part by 28.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810);
the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat.
28), and Handicapped Program Technical Amendments Act of 1988 (Pub. L.
100-630, 102 Stat. 3312). As used in this part, section 504 applies only
to programs or activities conducted by Executive agencies and not to
federally assisted programs.
28.104 -- 28.109 (Reserved)
49 CFR 29.110 Self-evaluation.
(a) The Department shall, by one year of the effective date of this
part, evaluate its current policies and practices, and effects thereof,
that do not or may not meet the requirements of this part, and, to the
extent modification of any such policies and practices is required, the
Department shall proceed to make the necessary modifications.
(b) The Department shall provide an opportunity to interested
persons, including individuals with handicaps, agency employees with
handicaps, and organizations representing individuals with handicaps, to
participate in the self-evaluation process by submitting comments (both
oral and written).
(c) The Department shall, until at least three years following
completion of the evaluation required under paragraph (a) of this
section, or until such time as all modifications identified by the
self-evaluation to be necessary to comply with section 504 have been
completed, whichever occurs later, maintain on file and make available
for public inspection --
(1) A description of areas examined, regulations and nonregulatory
criteria reviewed, and any problems identified; and
(2) A description of any modifications made.
49 CFR 28.111 Notice.
The Department shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the Department, and make such
information available to them in such manner as the Department finds
necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
28.112 -- 28.129 (Reserved)
49 CFR 28.130 General prohibition against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the Department.
(b)(1) The Department, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangement,
on the basis of handicap --
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The Department may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The Department may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified individuals with handicaps to discrimination on
the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The Department may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the Department; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The Department, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The Department may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the Department
establish requirements for the programs or activities of licensees or
certified entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the Department
are not, themselves, covered by this part. The Department may limit the
programs or activities of a licensee or certificate holder, who is a
qualified individual with handicaps, to the extent necessary to ensure
the safety of that person or the safety of others.
(c) The exclusion of individuals without handicaps from the benefits
of a program limited by Federal statute or Executive Order to
individuals with handicaps or the exclusion of a specific class of
individuals with handicaps from a program limited by Federal statute or
Executive Order to a different class of individuals with handicaps is
not prohibited by this part.
(d) The Department shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with handicaps.
49 CFR 28.131 Illegal use of drugs.
(a) General. (1) Except as provided in paragraph (b) of this
section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of drugs.
(2) The agency shall not discriminate on the basis of illegal use of
drugs against an individual who is not engaging in current illegal use
of drugs and who --
(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program; or
(iii) Is erroneously regarded as engaging in such use.
(b) Health and rehabilitation services. The agency shall not deny
health services or services provided under titles I, II, and III of the
Rehabilitation Act to an individual on the basis of that individual's
current illegal use of drugs, if the individual is otherwise entitled to
such services.
(c) Drug testing. (1) This part does not prohibit the agency from
adopting or administering reasonable policies or procedures, including
but not limited to drug testing, designed to ensure that an individual
who formerly engaged in the illegal use of drugs is not engaging in
current illegal use of drugs.
(2) Nothing in paragraph (c) of this section shall be construed to
encourage, prohibit, restrict, or authorize the conduct of testing for
the illegal use of drugs.
28.132 -- 28.139 (Reserved)
49 CFR 28.140 Employment.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the Department.
(b) The definitions, requirements, and procedures of section 501 of
the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the
Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply
to employment in federally conducted programs or activities. The
provisions of this section do not apply to military personnel of the
U.S. Coast Guard.
28.141 -- 28.148 (Reserved)
49 CFR 28.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 28.150, no qualified individual with
handicaps shall, because the Department's facilities are inaccessible to
or unusable by individuals with handicaps, be denied the benefits of, be
excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the
Department.
49 CFR 28.150 Program accessibility: Existing facilities.
(a) General. The Department shall operate each program or activity
so that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not --
(1) Necessarily require the Department to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) (Reserved)
(3) Require the Department to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where personnel of a DOT element believe that the proposed
action would fundamentally alter the program or activity or would result
in undue financial and administrative burdens, the DOT element has the
burden of proving that compliance with 28.150(a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Secretary or his or her
designee, after considering all resources available for use in the
funding and operation of the program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the Department shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that individuals with handicaps receive the benefits and services
of the program or activity.
(b) Methods. The Department may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The Department is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The Department, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the Department shall give priority to
those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The Department shall comply with the
obligations established under this section within sixty days of the
effective date of this part except that where structural changes in
facilities are undertaken, such changes shall be made within three years
of the effective date of this part, but in any event as expeditiously as
possible. Provided that, where major restructuring of fixed facilities
to accommodate technological changes is planned to occur within five
years from the effective date of this part, changes needed to comply
with this section are not required to be made until the planned
restructuring takes place. However, alternative means for participation
by individuals with handicaps in DOT programs and activities in the most
integrated setting possible during this interim waiting period shall be
available.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Department shall develop, within six months of the effective date of
this part, a transition plan setting forth the steps necessary to
complete such changes. The agency shall provide an opportunity to
interested persons, including individuals with handicaps, agency
employees with handicaps, or organizations representing individuals with
handicaps, to participate in the development of the transition plan by
submitting comments (both oral and written). A copy of the transition
plan shall be made available for public inspection. The plan shall, at
a minimum --
(1) Identify physical obstacles in the Department's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
49 CFR 28.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the Department shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600-607, apply to buildings covered by this section,
except for military facilities of the Coast Guard, which are covered by
32 CFR part 56.
28.152 -- 28.159 (Reserved)
49 CFR 28.160 Communications.
(a) The Department shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The Department shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the Department.
(i) In determining what type of auxiliary aid is necessary, the
Department shall give primary consideration to the requests of the
individual with handicaps.
(ii) The Department need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal nature
to applicants or participants in programs.
(2) Where the Department communicates with applicants and
beneficiaries by telephone, telecommunications devices for deaf persons
(TDDs) or equally effective telecommunication systems, shall be used to
communicate with persons with impaired hearing.
(b) The Department shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The Department shall provide signs at each primary entrance to
each of its inaccessible facilities, directing users to a location at
which they can obtain information as to the location of accessible
facilities. The international symbol for accessibility shall be used at
each primary entrance of an accessible facility.
(d) This section does not require the Department to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where personnel of a DOT element
believe that the proposed action would fundamentally alter the program
or activity or would result in an undue financial and administrative
burden, the DOT element has the burden of proving that compliance with
28.160 would result in such alteration or burden. The decision that
compliance would result in such alteration or burden must be made by the
Secretary or his or her designee, after considering all resources
available for use in the funding and operation of the program or
activity, and must be accompanied by a written statement of the reasons
for reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the
Department shall take any other action that would not result in such an
alteration or such a burden but would nevertheless ensure that, to the
maximum extent possible, individuals with handicaps receive the benefits
and services of the program or activity.
28.161 -- 28.169 (Reserved)
49 CFR 28.170 Compliance Procedures.
(a) Except as provided in paragraph (b) of this section, paragraphs
(c)-(k) of this section apply to all allegations of discrimination on
the basis of handicap in programs of activities conducted by the
Department;
(b)(1) The Department shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(2) The Department shall process complaints alleging violations of
section 504 with respect to requirements of any Department safety
regulation, concerning an individual's qualifications to perform a
function or to receive a certificate or license, according to the
procedures for a petition for an individual waiver or request for review
of a standard for possible amendment or recession. The Departmental
element shall inform the complainant, in writing, or the decision on the
request. The complainant may request reconsideration by the
Departmental element of the decision. The decision on the petition or
request shall constitute the Department's final action in the matter.
(c) Responsibility for implementation and operation of this section
shall be vested in the Director, Departmental Office of Civil Rights.
(d)(1) The Department shall accept and investigate all complete
complaints for which it has jurisdiction. All complete complaints must
be filed within 180 days of the alleged act of discrimination. The
Department may extend this time period for good cause.
(2) If the subject matter of a complete complaint concerns a decision
by a Departmental element, under a safety regulation, concerning an
individual's qualifications to perform a function or to receive a
certificate or license, and the complainant has available within the
Departmental element a formal review or appeal mechanism concerning that
decision, the Department shall not take action on the complaint until
the Departmental element's review or appeal process has been completed.
(e) If the Department receives a complaint over which it does not
have jurisdiction, it shall promptly notify the complainant and shall
make reasonable efforts to refer the complaint to the appropriate
Government entity.
(f) The Department shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the Department shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the Department of the letter required by 28.170(g). The Department may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Assistant
Secretary for Policy and International Affairs. The appeal will not be
heard by the same person who made the initial determination on the
request. The decision on the appeal shall constitute the Department's
final action in the matter.
(j) The Department shall notify the complainant of the results of the
appeal within 60 days of the receipt of the request. If the Department
determines that it needs additional information from the complainant, it
shall have 60 days from the date it receives the additional information
to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The Department may delegate its authority for conducting
complaint investigations to other Federal agencies, except that the
authority for making the final determination may not be delegated to
another agency.
28.171 -- 28.999 (Reserved)
49 CFR 28.170 PART 29 -- GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
49 CFR 28.170 Subpart A -- General
Sec.
29.100 Purpose.
29.105 Definitions.
29.110 Coverage.
29.115 Policy.
29.120 Saving clause.
49 CFR 28.170 Subpart B -- Effect of Action
29.200 Debarment or suspension.
29.205 Ineligible persons.
29.210 Voluntary exclusion.
29.215 Exception provision.
29.220 Continuation of covered transactions.
29.225 Failure to adhere to restrictions.
49 CFR 28.170 Subpart C -- Debarment
29.300 General.
29.305 Causes for debarment.
29.310 Procedures.
29.311 Investigation and referral.
29.312 Notice of proposed debarment.
29.313 Opportunity to contest proposed debarment.
29.314 Debarring official's decision.
29.315 Settlement and voluntary exclusion.
29.320 Period of debarment.
29.325 Scope of debarment.
49 CFR 28.170 Subpart D -- Suspension
29.400 General.
29.405 Causes for suspension.
29.410 Procedures.
29.411 Notice of suspension.
29.412 Opportunity to contest suspension.
29.413 Suspending official's decision.
29.415 Period of suspension.
29.420 Scope of suspension.
49 CFR 28.170 Subpart E -- Responsibilities of GSA, Agency, and
Participants.
29.500 GSA responsibilities.
29.505 DOT responsibilities.
29.510 Participants' responsibilities.
49 CFR 28.170 Subpart F -- Drug-Free Workplace Requirements (Grants)
29.600 Purpose.
29.605 Definitions.
29.610 Coverage.
29.615 Grounds for suspension of payments, suspension or termination
of grants, or suspension or debarment.
29.620 Effect of violation.
29.625 Exception provision.
29.630 Certification requirements and procedures.
29.635 Reporting of and employee sanctions for convictions of
criminal drug offenses.
Appendix A to Part 29 -- Certification Regarding Debarment,
Suspension, and Other Responsibility Matters -- Primary Covered
Transactions
Appendix B to Part 29 -- Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion -- Lower Tier Covered
Transactions
Appendix C to Part 29 -- 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); 49 CFR part 322.
Source: Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, unless
otherwise noted.
Editorial Notes:
1: A nomenclature change affecting this part appears at 53 FR 19203,
May 26, 1988.
2: For additional information, see related documents published at 52
FR 20360, May 29, 1987, 53 FR 19160, May 26, 1988, and 53 FR 34474,
September 6, 1988.
Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21679, May 25, 1990.
49 CFR 28.170 Subpart A -- General
49 CFR 29.100 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
29.105(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.
49 CFR 29.105 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.
(3) Debarring Official. For DOT the designated official is the head
of a Departmental operating administration, who may delegate any of his
or her functions under this part and authorize successive delegations.
(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.
(3) Suspending Official. For DOT the designated official is the head
of a Departmental operating administration, who may delegate any of his
or her functions under this part and authorize successive delegations.
(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.
(w) DOT. Department of Transportation.
(x) Operating administration includes the Office of the Secretary,
the head of which, for the purposes of this rule, is the Assistant
Secretary for Administration.
(Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 53 FR
19203, May 26, 1988)
49 CFR 29.110 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,'' 29.200, ''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
29.110(a). Sections 29.325, ''Scope of debarment,'' and 29.420, ''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.
49 CFR 29.115 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.
49 CFR 29.120 Saving clause.
Any debarment or suspension initiated before October 1, 1988, shall
be governed by part 29 of the Department's regulations as part 29
existed immediately before October 1, 1988, including 29.125 thereof.
(Amdt. 29-1, 53 FR 19203, May 26, 1988)
49 CFR 29.120 Subpart B -- Effect of Action
49 CFR 29.200 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 29.215.
(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 29.110(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.
49 CFR 29.205 Ineligible persons.
Persons who are ineligible, as defined in 29.105(i), are excluded in
accordance with the applicable statutory, executive order, or regulatory
authority.
49 CFR 29.210 Voluntary exclusion.
Persons who accept voluntary exclusions under 29.315 are excluded in
accordance with the terms of their settlements. DOT shall, and
participants may, contact the original action agency to ascertain the
extent of the exclusion.
49 CFR 29.215 Exception provision.
DOT 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 29.200 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 29.505(a).
(a) A debarring or suspending official may grant exceptions and make
written determinations under this section.
(Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 53 FR
19204, May 26, 1988)
49 CFR 29.220 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 29.215.
49 CFR 29.225 Failure to adhere to restrictions.
Except as permitted under 29.215 or 29.220 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.
49 CFR 29.225 Subpart C -- Debarment
49 CFR 29.300 General.
The debarring official may debar a person for any of the causes in
29.305, using procedures established in 29.310 through 29.314. 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.
49 CFR 29.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
29.300 through 29.314 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 29.215 or 29.220;
(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 29.315 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 29.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
(Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 54 FR
4950, 4963, Jan. 31, 1989)
49 CFR 29.310 Procedures.
DOT shall process debarment actions as informally as practicable,
consistent with the principles of fundamental fairness, using the
procedures in 29.311 through 29.314.
49 CFR 29.311 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.
49 CFR 29.312 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 29.305 for proposing
debarment;
(d) Of the provisions of 29.311 through 29.314, and any other DOT
procedures, if applicable, governing debarment decisionmaking; and
(e) Of the potential effect of a debarment.
49 CFR 29.313 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.
49 CFR 29.314 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 29.215.
(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.
49 CFR 29.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, DOT may, at any
time, settle a debarment or suspension action.
(1) An operating administration may settle a debarment or suspension
action under this section.
(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).
(Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 53 FR
19204, May 26, 1988)
49 CFR 29.320 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 29.305(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
29.311 through 29.314 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.
(Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 54 FR
4950, 4963, Jan. 31, 1989)
49 CFR 29.325 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 29.311 through 29.314).
(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.
49 CFR 29.325 Subpart D -- Suspension
49 CFR 29.400 General.
(a) The suspending official may suspend a person for any of the
causes in 29.405 using procedures established in 29.410 through
29.413.
(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 29.405, 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.
49 CFR 29.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
29.400 through 29.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in 29.305(a); or
(2) That a cause for debarment under 29.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of
suspension actions.
49 CFR 29.410 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. DOT shall process suspension actions as
informally as practicable, consistent with principles of fundamental
fairness, using the procedures in 29.411 through 29.413.
49 CFR 29.411 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 29.405 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 29.411 through 29.413 and any other DOT
procedures, if applicable, governing suspension decisionmaking; and
(g) Of the effect of the suspension.
49 CFR 29.412 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.
49 CFR 29.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see 29.320(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.
49 CFR 29.415 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.
49 CFR 29.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see 29.325), except that the procedures of 29.410 through 29.413
shall be used in imposing a suspension.
49 CFR 29.420 Subpart E -- Responsibilities of GSA, Agency and Participants
49 CFR 29.500 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.
49 CFR 29.505 DOT 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 DOT has granted exceptions under 29.215 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 29.500(b) and of the
exceptions granted under 29.215 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.
49 CFR 29.510 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.
(i) However, an operating administration may require that a person
who enters into a primary covered transaction require the next lower
tier participant to include, with conforming modifications, the
certification in appendix A.
(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 DOT 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.
(Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 53 FR
19204, May 26, 1988)
49 CFR 29.510 Subpart F -- Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21705, May 25, 1990, unless otherwise noted.
49 CFR 29.600 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.
49 CFR 29.605 Definitions.
(a) Except as amended in this section, the definitions of 29.105
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.
49 CFR 29.610 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.
49 CFR 29.615 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 29.630;
(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.
49 CFR 29.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
29.615, 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 29.320(a)(2) of this part).
49 CFR 29.625 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.
49 CFR 29.630 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.
49 CFR 29.635 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)
49 CFR 29.635 Pt. 29, App. A
49 CFR 29.635 Appendix A to Part 29 -- 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.
49 CFR 29.635 Pt. 29, App. B
49 CFR 29.635 Appendix B to Part 29 -- 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.
49 CFR 29.635 Pt. 29, App. C
49 CFR 29.635 Appendix C to Part 29 -- 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, 21705, May 25, 1990)
49 CFR 29.635 PART 30 -- DENIAL OF PUBLIC WORKS CONTRACTS TO SUPPLIERS
OF GOODS AND SERVICES OF COUNTRIES THAT DENY PROCUREMENT MARKET ACCESS
TO U.S. CONTRACTORS
Sec.
30.1 Purpose.
30.3 Applicability.
30.5 Effective dates.
30.7 Definitions.
30.9 Citizenship: Direct or indirect control.
30.11 Use of solicitation provisions and contract clauses.
30.13 Restrictions on Federal public works projects: Certification.
30.15 Restrictions on Federal public works projects.
30.17 Waivers.
30.19 Buy American Act.
Authority: 49 U.S.C. 322(a); Containing Resolution on the Fiscal
Year 1988 Budget 109(a), Pub. L. 100-202; Airport and Airways Safety
and Capacity Expansion Act of 1987, 115, Pub. L. 100-223.
Source: 53 FR 19916, June 1, 1988, unless otherwise noted.
49 CFR 30.1 Purpose.
The rules in this part implement section 109(a) of the Continuing
Resolution on the Fiscal Year 1988 Budget, Public Law No. 100-202
(signed December 22, 1987) (the Continuing Resolution), and section 115
of the Airport and Airways Safety and Capacity Expansion Act of 1987,
Public Law No. 100-223 (signed December 30, 1987) (the Airport Safety
Act). These rules are intended to give uniform implementation to these
statutes throughout DOT procurement and grant programs.
49 CFR 30.3 Applicability.
(a) The restrictions imposed by section 109(a) of the Continuing
Resolution extend to all DOT agencies as well as all recipients of DOT
funds. The restrictions apply to all projects for which funds are
obligated or contracts or subcontracts are awarded during fiscal year
1988, including projects and contracts under all DOT financial
assistance programs. The prohibition applies to public buildings and
public works projects everywhere in the United States or any territory
or possession of the United States. U.S. overseas bases, installations,
and embassies are not subject to this part.
(b) The restrictions imposed by section 115 of the Airport Safety Act
extend to all projects for which funds are made available by that Act,
whether or not the contracts are awarded during fiscal year 1988. The
restrictions apply to all contracts entered into under grants authorized
by the Airport Safety Act.
(c) This part applies to projects covered by section 109(a) of the
Continuing Resolution, section 115 of the Airport Safety Act, or both.
Whether one or the other statute or both apply, the effect on the
project shall be the same, subject to paragraph (e) of this section.
(d) In addition to construction, alteration, and repair contracts,
the restrictions of this part cover all architect, engineering, and
other services related to the preparation and performance of
construction, alteration, and repair of public projects and public
works.
(e) The restrictions of this part also apply to all products used in
the construction, alteration, or repair of public projects and public
works; Provided, however, That
(1) The restrictions of this part do not apply to construction
equipment or vehicles that do not become part of a delivered structure,
product, or project and
(2) Notwithstanding paragraph (c) of this section, the restrictions
of section 109(a) of the Continuing Resolution do not apply to vehicles
to be used by the project, including, but not limited to, buses, trucks,
automobiles, rail rolling stock, and aircraft.
49 CFR 30.5 Effective dates.
The provisions of section 109(a) of the Continuing Resolution apply
to contracts (or new subcontracts under existing contracts, whether or
not subject to the restriction) entered into after December 22, 1987,
its date of enactment, and before October 1, 1988. The provisions of
section 115 of the Airport Safety Act apply to contracts funded by the
Act and entered into after December 30, 1987, its date of enactment;
the restrictions remain effective so long as money provided by the
Airport Safety Act is used. Accordingly, any contracts or subcontracts
subject to the restrictions of this part entered into with contractors
or subcontractors owned or controlled by citizens of subject countries,
as defined by 30.7 and 30.9 of this part, since December 22, 1987
shall be canceled at no cost to the Government, subject to the waiver
provisions of 30.17 of this part. All public works or public buildings
contracts entered into after December 22, 1987, shall include, or be
modified to include, a provision prohibiting subcontracting with
citizens of subject countries, as defined by 30.7 and 30.9 of this
part.
49 CFR 30.7 Definitions.
(a) Funds appropriated for FY 1988 by this resolution or any other
law, as used in this part with reference to section 109(a) of the
Continuing Resolution, means all appropriated and trust funds available
to DOT, its modal administration, or their grantees for expenditure or
obligation in fiscal year 1988, regardless of the fiscal year in which
the funds were appropriated.
(b) Funds made available by this Act, as used in this part with
reference to section 115(a) of the Airport Safety Act, means all funds,
including trust funds, made available to DOT, its modal administrations,
or their grantees by that Act, whether or not the contracts to be funded
are awarded during fiscal year 1988.
(c) Contractor and subcontractor means any person, other than a
supplier of products, performing any architectural, engineering, or
other service directly related to the preparation for or performance of
the construction, alteration, or repair of any public building or public
work in the United States or any territory or possession of the United
States.
(d) Contractor or subcontractor of a foreign country means any
contractor or subcontractor that is a citizen or national of a foreign
country, or is controlled directly or indirectly by one or more citizens
or nationals of a foreign country.
(e) Service of a foreign country means any service provided by a
person that is a citizen or national of a foreign country, or is
controlled by one or more citizens or nationals of a foreign country.
(f) Product of a foreign country means construction materials, i.e.,
articles, materials, and supplies brought to the construction site for
incorporation into the public works project. A product is considered to
have been produced in a foreign country if more than fifty percent of
the total cost of the product is allocable to production or manufacture
in the foreign country.
(g) Foreign country means a country included in the list of countries
that discriminate against U.S. firms published by the U.S.T.R.
49 CFR 30.9 Citizenship: Direct or indirect control.
A contractor, subcontractor, or person providing a service shall be
considered to be a citizen or national of a foreign country, or
controlled directly or indirectly by citizens or nationals of a foreign
country, within the meaning of this part.
(a) If 50 percent or more of the contractor or subcontractor is owned
by one or more citizens or nationals of the foreign country;
(b) If the title to 50 percent or more of the stock of the contractor
or subcontractor is held subject to trust or fiduciary obligation in
favor of one or more citizens or nationals of the foreign country;
(c) If 50 percent or more of the voting power in the contractor or
subcontractor is vested in or exercisable on behalf of one or more
citizens or nationals of the foreign country;
(d) In the case of a partnership, if any general partner is a citizen
or national of the foreign country;
(e) In the case of a corporation, if the number of its directors
necessary to constitute a quorum are citizens of the foreign country or
the corporation is organized under the laws of the foreign country or
any subdivision, territory, or possession thereof; or
(f) In the case of a contractor or subcontractor that is a joint
venture, if any participant meets any of the criteria in paragraphs (a)
through (e) of this section.
49 CFR 30.11 Use of solicitation provisions and contract clauses.
(a) Unless the President or the Secretary waives the restrictions
imposed by section 109(a) of the Continuing Resolution in accordance
with 30.17 of this part, the contracting officer shall insert a clause
similar to the clause at 30.15, Restrictions on Federal Public Works
Projects, in contractions and solicitations, if --
(1) The contract is awarded on or after December 22, 1987, and before
October 1, 1988; and
(2) The contract obligates funds appropriated for use in FY 1988 by
the Continuing Resolution or any other law; and
(3) The contract is for the acquisition of construction, alteration
and repair, architectural, engineering, or other services directly
related to the preparation for, or performance of, construction,
alteration, and repair for Federal public works projects inside the
United States, U.S. territories, or U.S. possessions.
(b) Unless the Secretary waives the restrictions imposed by section
115 of the Airport Safety Act in accordance with 30.17 of this part,
the contracting officer shall insert a clause similar to the clause at
30.15, Restrictions on Federal Public Works Projects, in contracts and
solicitations relating to any project for which funds, including grant
funds, are made available by that Act, whether or not the contract is
awarded during fiscal year 1988.
(c) Any contract already awarded that should have contained the
clause prescribed in paragraph (a) or (b) of this section, but did not,
shall be modified to include the clause. In the event that the
contracting officer is unable to modify such contract, the contract
shall be canceled at no cost to the Government, unless a waiver is
granted in accordance with 30.17 of this part.
(d) Contracting officers shall insert a provision similar to the
solicitation provision at 30.13 of this part, Restrictions on Public
Works Projects -- Certification, in solicitations containing the clause
at 30.15 of this part, Restrictions on Federal Public Works Projects.
(e) Any solicitation issued before December 22, 1987, that will
result in the award of a contract covered by paragraph (a) of this
section after December 22, 1987, and before October 1, 1988, and that
should have contained a provision similar to that 30.13 of this part,
but did not, shall be amended to include the provision if the contract
has not yet been awarded.
49 CFR 30.13 Restrictions on Federal public works projects:
Certification.
As prescribed in 30.11(c) of this part, the contracting officer
shall insert the following provision in solicitations containing the
clause at 30.15, Restrictions on Federal Public Works Projects:
49 CFR 30.13 Restrictions on Federal Public Works Projects --
Certification
(a) Definitions. The definitions pertaining to this provision are
those that are set forth in 49 CFR 30.7-30.9.
(b) Certification. By signing this solicitation, the Offeror
certifies that with respect to this solicitation, and any resultant
contract, the Offeror --
(1) Is ( ) is not ( ) a contractor of a foreign country included on
the list of countries that discriminated against U.S. firms published by
the Office of the United States Trade Representative (U.S.T.R.);
(2) Has ( ) has not ( ) entered into any contract or subcontract with
a subcontractor of a foreign country included on the list of countries
that discriminate against U.S. firms published by the U.S.T.R.; and
(3) Has ( ) has not ( ) entered into any subcontract for any product
to be used on the Federal public works project that is produced in a
foreign country included on the list of countries that discriminate
against U.S. firms published by the U.S.T.R.
(c) Applicability of 18 U.S.C. 1001. This certification in this
solicitation provision concerns a matter within the jurisdiction of an
agency of the United States and the making of a false, fictitious, or
fraudulent certification may render the maker subject to prosecution
under Title 18, United States Code, Section 1001.
(d) Notice. The Offeror shall provide immediate written notice to
the Contracting Officer if, at any time prior to contract award, the
Offeror learns that its certification was erroneous when submitted or
has become erroneous by reason of changed circumstances.
(e) Restrictions on contract award. No contract will be awarded to
an offeror (1) who is owned or controlled by one or more citizens or
nationals of a foreign country included on the list of countries that
discriminate against U.S. firms published by the U.S.T.R. or (2) whose
subcontractors are owned or controlled by one or more citizens or
nationals of a foreign country on such U.S.T.R. list or (3) who
incorporates in the public works project any product of a foreign
country on such U.S.T.R. list; unless a waiver to these restrictions is
granted by the President of the United States or the Secretary of
Transportation. (Notice of the granting of a waiver will be published
in the Federal Register.)
(f) System. 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 paragraph (b) of this provision.
The knowledge and information of an Offeror is not required to exceed
that which is normally possessed by a prudent person in the ordinary
course of business dealings.
(g) Subcontracts. The Offeror agrees that, if awarded a contract
resulting from this solicitation, it will incorporate this solicitation
provision, including this paragraph (g), in each solicitation issued
under such contract.
49 CFR 30.15 Restrictions on Federal public works projects.
The contracting officer shall insert the following clause in
solicitations and contracts as prescribed at 30.11(a) through (b) of
this part:
49 CFR 30.15 Restrictions on Federal Public Works Projects
(a) Definitions. The definitions pertaining to this clause are those
that are set forth in 49 CFR 30.7 -- 30.9
(b) General. This clause implements the procurement provisions
contained in the Continuing Resolution on the Fiscal Year 1988 Budget,
Public Law No. 100-202, and the Airport and Airway Safety and Capacity
Expansion Act of 1987, Public Law No. 100-223.
(c) Restrictions. The Contractor shall not knowingly enter into any
subcontract under this contract: (1) with a subcontractor of a foreign
country included on the list of countries that discriminate against U.S.
firms published by the United States Trade Representative (U.S.T.R.);
or (2) for the supply of any product for use on the Federal Public works
project under this contract that is produced or manufactured in a
foreign country included on the list of countries that discriminate
against U.S. firms published by the U.S.T.R.
(d) Certification. The Contractor may rely upon the certification of
a prospective subcontractor that it is not a subcontractor of a foreign
country included on the list of countries that discriminates against
U.S. firms published by the U.S.T.R. and that products supplied by such
subcontractor for use on the Federal public works project under this
contract are not products of a foreign country included on the list of
countries that discriminate against U.S. firms published by the
U.S.T.R., unless the contractor has knowledge that the certification is
erroneous.
(e) Erroneous certification. The certification in paragraph (b) of
the provision entitled ''Restriction on Federal Public Works Projects --
Certification,'' is a material representation of fact upon which
reliance was placed when making the award. If it is later determined
that the Contractor knowingly rendered an erroneous certification, in
addition to other remedies available to the Government, the Contracting
Officer may cancel this contract for default at no cost to the
Government.
(f) Cancellation. Unless the restrictions of this clause are waived
as provided in paragraph (e) of the provision entitled ''Restriction on
Federal Public Works Projects -- Certification,'' if the Contractor
knowingly enters into a subcontract with a subcontractor that is a
subcontractor of a foreign country included on the list of countries
that discriminate against U.S. firms published by the U.S.T.R. or that
supplies any product for use on the Federal public works project under
this contract of a foreign country included on the list of countries
that discriminate against U.S. firms published by the U.S.T.R., the
Contracting Officer may cancel this contract for default, at no cost to
the Government.
(g) Subcontracts. The Contractor shall incorporate this clause,
without modification, including this paragraph (g) in all solicitations
and subcontracts under this contract:
49 CFR 30.15 Certification Regarding Restrictions on Federal Public
Works Projects -- Subcontractors
(1) The Offeror/Contractor, by submission of an offer and/or
execution of a contract certifies that the Offeror/Contractor is (i) not
an Offeror/Contractor owned or controlled by one or more citizens or
nationals of a foreign country included on the list of countries that
discriminate against U.S. firms published by the United States Trade
Representative (U.S.T.R.) or (2) not supplying any product for use on
the Federal public works project that is produced or manufactured in a
foreign country included on the list of foreign countries that
discriminate against U.S. firms published by the U.S.T.R.
(2) The Offeror shall provide immediate written notice to the
Contractor if, at any time, the Offeror learns that its certification
was erroneous by reason of changed circumstances.
(3) The Contractor shall not knowingly enter into any subcontract
under this contract: (i) with a subcontractor of a foreign country
included on the list of countries that discriminate against U.S. firms
published by the U.S.T.R.; or (ii) for the supply of any product for use
on the Federal public works project under this contract that is produced
or manufactured in a foreign country included on the list of countries
that discriminate against U.S. firms published by the U.S.T.R. The
contractor may rely upon the certification in paragraph (g)(1) of this
clause unless it has knowledge that the certification is erroneous.
(4) Unless the restrictions of this clause have been waived under the
contract for the Federal public works project, if a contractor knowingly
enters into a subcontract with a subcontractor that is a subcontractor
of a foreign country included on the list of countries that discriminate
against U.S. firms published by the U.S.T.R. or that supplies any
product for use on the Federal public works project under this contract
that is produced or manufactured in a foreign country included on the
list of countries that discriminate against U.S. firms published by the
U.S.T.R., the Government Contracting Officer may direct, through
higher-tier contractors, cancellation of this contract at no cost to the
Government.
(5) Definitions. The definitions pertaining to this clause are those
that are set forth in 49 CFR 30.7 -- 30.9.
(6) The certification in paragraph (g)(1) of this clause is a
material representation of fact upon which reliance was placed when
making the award. If it is later determined that the Contractor
knowingly rendered an erroneous certification, in addition to other
remedies available to the Government, the Government Contracting Officer
may direct, through higher-tier Contractors, cancellation of this
subcontract at no cost to the Government.
(7) The Contractor agrees to insert this clause, without
modification, including this paragraph, in all solicitations and
subcontracts under this clause.
49 CFR 30.17 Waivers.
(a) The Secretary may waive the restrictions imposed by section 115
of the Airport Safety Act on the use of a product or service in a
project if the Secretary determines that:
(1) Application of the restriction to such product, service, or
project would not be in the public interest;
(2) Products or services of the same class or kind are not produced
or offered in the United States, or in any foreign country that is not
listed by the U.S.T.R. in sufficient and reasonable available quantities
and of a satisfactory quality; or
(3) Exclusion of such product or service from the project would
increase the cost of the overall project contract by more than 20
percent.
(b) The President or the Secretary may waive the restrictions imposed
by section 109(a) of the Continuing Resolution with respect to an
individual contract if the President or the Secretary determines that
such action is necessary in the public interest, on a
contract-by-contract basis. The Secretary may apply the factors listed
in paragraphs (a)(2) and (a)(3) of this section in determining whether a
waiver is in the public interest.
(c) The authority of the President or the Secretary to issue waivers
may not be delegated. The Department shall publish notice of any waiver
granted pursuant to this part by the President or the Secretary in the
Federal Register within ten days. The notice shall describe in detail
the contract involved, the specific reasons for granting the waiver, and
how the waiver meets the criteria of this section.
49 CFR 30.19 Buy American Act.
The restrictions of this part are in addition to any other
restrictions contained in Federal law, including the Buy American Act,
41 U.S.C. 10a-10d, and Buy American provisions in legislation governing
DOT provisions. Normal evaluation methods for implementing the
provisions of the Buy American Act in contracts for the construction,
alteration, or repair of public buildings or public works will be
applied after determining the offeror's eligible for award on the basis
of application of the provisions in this part.
49 CFR 30.19 PART 31 -- PROGRAM FRAUD CIVIL REMEDIES
Sec.
31.1 Basis and purpose.
31.2 Definitions.
31.3 Basis for civil penalties and assessments.
31.4 Investigation.
31.5 Review by the reviewing official.
31.6 Prerequisites for issuing a complaint.
31.7 Complaint.
31.8 Service of complaint.
31.9 Answer.
31.10 Default upon failure to answer.
31.11 Referral of complaint and answer to the ALJ.
31.12 Notice of hearing.
31.13 Parties to the hearing.
31.14 Separation of functions.
31.15 Ex parte contacts.
31.16 Disqualification of reviewing official or ALJ.
31.17 Rights of parties.
31.18 Authority of the ALJ.
31.19 Prehearing conferences.
31.20 Disclosure of documents.
31.21 Discovery.
31.22 Exchange of witness lists, statements, and exhibits.
31.23 Subpoenas for attendance at hearing.
31.24 Protective order.
31.25 Fees.
31.26 Filing, form, and service of papers.
31.27 Computation of time.
31.28 Motions.
31.29 Sanctions.
31.30 The hearing and burden of proof.
31.31 Determining the amount of penalties and assessments.
31.32 Location of hearing.
31.33 Witnesses.
31.34 Evidence.
31.35 The record.
31.36 Post-hearing briefs.
31.37 Initial decision.
31.38 Reconsideration of initial decision.
31.39 Appeal to authority head.
31.40 Stays ordered by the Department of Justice.
31.41 Stay pending appeal.
31.42 Judicial review.
31.43 Collection of civil penalties and assessments.
31.44 Right to administrative offset.
31.45 Deposit in Treasury of United States.
31.46 Compromise or settlement.
31.47 Limitations.
Authority: 31 U.S.C. 3801-3812.
Source: 53 FR 881, Jan. 14, 1988, unless otherwise noted.
49 CFR 31.1 Basis and purpose.
(a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874
(October 21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C.
3809 of the statute requires each authority head to promulgate
regulations necessary to implement the provisions of the statute.
(b) Purpose. This part (1) establishes administrative procedures for
imposing civil penalties and assessments against persons who make,
submit, or present, or cause to be made, submitted, or presented, false,
fictitious, or fraudulent claims or written statements to the authority
or to certain others, and (2) specifies the hearing and appeal rights of
persons subject to allegations of liability for such penalties and
assessments.
49 CFR 31.2 Definitions.
ALJ means an Administrative Law Judge in the authority appointed
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5
U.S.C. 3344.
Authority means the Department of Transportation.
Authority head means the Assistant Secretary or Deputy Assistant
Secretary for Budget and Programs, Department of Transportation.
Benefit means, in the context of ''statement,'' anything of value,
including but not limited to any advantage, preference, privilege,
license, permit, favorable decision, ruling, status, or loan guarantee.
Claim means any request, demand, or submission --
(a) Made to the authority for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(b) Made to a recipient of property, services, or money from the
authority or to a party to a contract with the authority --
(1) For property or services if the United States --
(i) Provided such property or services;
(ii) Provided any portion of the funds for the purchase of such
property or services; or
(iii) Will reimburse such recipient or party for the purchase of such
property or services; or
(2) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States --
(i) Provided any portion of the money requested or demanded; or
(ii) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(c) Made to the authority which has the effect of decreasing an
obligation to pay or account for property, services, or money.
Complaint means the administrative complaint served by the reviewing
official on the defendant under 31.7.
Defendant means any person alleged in a complaint under 31.7 to be
liable for a civil penalty or assessment under 31.3.
Government means the United States Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by
31.10 or 31.37 and includes a revised initial decision issued following
a remand or a motion for reconsideration.
Investigating official means the Inspector General of the Department
of Transportation or an officer or employee of the Office of Inspector
General designated by the Inspector General and serving in a position
for which the rate of basic pay is not less than the minimum rate of
basic pay for grade GS-16 under the General Schedule.
Knows or has reason to know, means that a person, with respect to a
claim or statement --
(a) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(b) Acts in deliberate ignorance of the truth or falsity of the claim
or statement; or
(c) Acts in reckless disregard of the truth or falsity of the claim
or statement.
Makes, wherever it appears, shall include the terms presents,
submits, and causes to be made, presented, or submitted. As the context
requires, making or made, shall likewise include the corresponding forms
of such terms.
Person means any individual, partnership, corporation, association,
or private organization, and includes the plural of that term.
Representative means an attorney who is a member in good standing of
the bar of any State, Territory, or possession of the United States or
of the District of Columbia or the Commonwealth of Puerto Rico. This
definition is not intended to foreclose pro se appearances. An
individual may appear for himself or herself, and a corporation or other
entity may appear by an owner, officer, or employee of the corporation
or entity.
Reviewing official means the Deputy General Counsel of the Department
of Transportation, or other officer or employee of the Department who is
designated by the Deputy General Counsel and eligible under 31 U.S.C.
3801(a)(8).
Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made --
(a) With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for) --
(1) A contract with, or bid or proposal for a contract with; or
(2) A grant, loan, or benefit from,
the authority, or any State, political subdivision of a State, or
other party, if the United States Government provides any portion of the
money or property under such contract or for such grant, loan, or
benefit, or if the Government will reimburse such State, political
subdivision, or party for any portion of the money or property under
such contract or for such grant, loan, or benefit.
49 CFR 31.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph (c) of this section,
any person who makes a claim that the person knows or has reason to know
--
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written statement which asserts
a material fact which is false, fictitious, or fraudulent;
(iii) Includes or is supported by any written statement that --
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such omission;
and
(C) Is a statement in which the person making such statement has a
duty to include such material fact; or
(iv) Is for payment for the provision of property or services which
the person has not provided as claimed, shall be subject, in addition to
any other remedy that may be prescribed by law, to a civil penalty of
not more than $5,000 for each such claim.
(2) Each voucher, invoice, claim form, or other individual request or
demand for property, services, or money constitutes a separate claim.
(3) A claim shall be considered made to the authority, recipient, or
party when such claim is actually made to an agent, fiscal intermediary,
or other entity, including any State or political subdivision thereof,
acting for or on behalf of the authority, recipient, or party.
(4) Each claim for property, services, or money is subject to a civil
penalty regardless of whether such property, services, or money is
actually delivered or paid.
(5) If the Government has made any payment (including transferred
property or provided services) on a claim, a person subject to a civil
penalty under paragraph (a)(1) of this section shall also be subject to
an assessment of not more than twice the amount of such claim or that
portion thereof that is determined to be in violation of paragraph
(a)(1) of this section. Such assessment shall be in lieu of damages
sustained by the Government because of such claim.
(b) Statements. (1) Except as provided in paragraph (c) of this
section, any person who makes a written statement that --
(i) The person knows or has reason to know --
(A) Asserts a material fact which is false, fictitious, or
fraudulent; or
(B) Is false, fictitious, or fraudulent because it omits a material
fact that the person making the statement has a duty to include in such
statement; and
(ii) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
such statement.
(2) Each written representation, certification, or affirmation
constitutes a separate statement.
(3) A statement shall be considered made to the authority when such
statement is actually made to an agent, fiscal intermediary, or other
entity, including any State or political subdivision thereof, acting for
or on behalf of the authority.
(c) No proof of specific intent to defraud is required to establish
liability under this section.
(d) In any case in which it is determined that more than one person
is liable for making a claim or statement under this section, each such
person may be held liable for a civil penalty under this section.
(e) In any case in which it is determined that more than one person
is liable for making a claim under this section on which the Government
has made payment (including transferred property or provided services),
an assessment may be imposed against any such person or jointly and
severally against any combination of such persons.
49 CFR 31.4 Investigation.
(a) If an investigating official concludes that a subpoena pursuant
to the authority conferred by 31 U.S.C. 3804(a) is warranted --
(1) The subpoena so issued shall notify the person to whom it is
addressed of the authority under which the subpoena is issued and shall
identify the records or documents sought;
(2) The investigating official may designate a person to act on his
or her behalf to receive the documents sought; and
(3) The person receiving such subpoena shall be required to tender to
the investigating official or the person designated to receive the
documents a certification that the documents sought have been produced,
or that such documents are not available and the reasons therefor, or
that such documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the
Program Fraud Civil Remedies Act may be warranted, the investigating
official shall submit a report containing the findings and conclusions
of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating
official's discretion to refer allegations directly to the Department of
Justice for suit under the False Claims Act or other civil relief, or to
defer or postpone a report or referral to the reviewing official to
avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.
49 CFR 31.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under
31.4(b), the reviewing official determines that there is adequate
evidence to believe that a person is liable under 31.3 of this part,
the reviewing official shall transmit to the Attorney General a written
notice of the reviewing official's intention to issue a complaint under
31.7.
(b) Such notice shall include --
(1) A statement of the reviewing official's reasons for issuing a
complaint;
(2) A statement specifying the evidence that supports the allegations
of liability;
(3) A description of the claims or statements upon which the
allegations of liability are based;
(4) An estimate of the amount of money or the value of property,
services, or other benefits requested or demanded in violation of 31.3
of this part;
(5) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments.
49 CFR 31.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under 31.7 only if
--
(1) The Department of Justice approves the issuance of a complaint in
a written statement described in 31 U.S.C. 3803(b)(1), and
(2) In the case of allegations of liability under 31.3(a) with
respect to a claim, the reviewing official determines that, with respect
to such claim or a group of related claims submitted at the same time
such claim is submitted (as defined in paragraph (b) of this section),
the amount of money or the value of property or services demanded or
requested in violation of 31.3(a) does not exceed $150,000.
(b) For the purposes of this section, a related group of claims
submitted at the same time shall include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section shall be construed to limit the reviewing
official's authority to join in a single complaint against a person's
claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or services,
demanded or requested.
49 CFR 31.7 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the
reviewing official may serve a complaint on the defendant, as provided
in 31.8
(b) The complaint shall state --
(1) The allegations of liability against the defendant, including the
statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer to request a hearing, including
a specific statement of the defendant's right to request a hearing by
filing an answer and to be represented by a representative; and
(4) That failure to file an answer within 30 days of service of the
complaint will result in the imposition of the maximum amount of
penalties and assessments without right to appeal, as provided in
31.10.
(c) At the same time the reviewing official serves the complaint, he
or she shall serve the defendant with a copy of these regulations.
49 CFR 31.8 Service of complaint.
(a) Service of a complaint must be made by certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure. Service of a complaint is complete upon
receipt.
(b) Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service, may
be made by --
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging
receipt; or
(3) Written acknowledgment of receipt by the defendant or his or her
representative.
49 CFR 31.9 Answer.
(a) The defendant may request a hearing by serving an answer on the
reviewing official within 30 days of service of the complaint. Service
of an answer shall be made by delivering a copy to the reviewing
official or by placing a copy in the United States mail, postage prepaid
and addressed to the reviewing official. Service of an answer is
complete upon such delivery or mailing. An answer shall be deemed to be
a request for hearing.
(b) In the answer, the defendant --
(1) Shall admit or deny each of the allegations of liability made in
the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum;
and
(4) Shall state the name, address, and telephone number of the person
authorized by the defendant to act as defendant's representative, if
any.
(c) If the defendant is unable to file an answer meeting the
requirements of paragraph (b) of this section within the time provided,
the defendant may, before the expiration of 30 days from service of the
complaint, serve on the reviewing official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to serve an answer meeting the requirements of
paragraph (b) of this section. The reviewing official shall file
promptly the complaint, the general answer denying liability, and the
request for an extension of time as provided in 31.11. For good cause
shown, the ALJ may grant the defendant up to 30 additional days from the
original due date within which to serve an answer meeting the
requirements of paragraph (b) of this section.
49 CFR 31.10 Default upon failure to answer.
(a) If the defendant does not answer within the time prescribed in
31.9(a), the reviewing official may refer the complaint to an ALJ by
filing the complaint and a statement that defendant has failed to answer
on time.
(b) Upon the referral of the complaint, the ALJ shall promptly serve
on defendant in the manner prescribed in 31.8, a notice that an initial
decision will be issued under this section.
(c) In addition, the ALJ shall assume the facts alleged in the
complaint to be true, and, if such facts establish liability under
31.3, the ALJ shall issue an initial decision imposing the maximum
amount of penalties and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to
answer on time, the defendant waives any right to further review of the
penalties and assessments imposed under paragraph (c) of this section,
and the initial decision shall become final and binding upon the parties
30 days after it is issued.
(e) If, before such an initial decision becomes final, the defendant
files a motion seeking to reopen on the grounds that extraordinary
circumstances prevented the defendant from answering, the initial
decision shall be stayed pending the ALJ's decision on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary
circumstances excusing the failure to answer on time, the ALJ shall
withdraw the initial decision in paragraph (c) of this section, if such
a decision has been issued, and shall grant the defendant an opportunity
to answer the complaint.
(g) A decision of the ALJ denying a defendant's motion under
paragraph (e) of this section is not subject to reconsideration under
31.38.
(h) The defendant may appeal to the authority head the decision
denying a motion to reopen by filing a notice of appeal in accordance
with 31.26 within 15 days after the ALJ denies the motion. The timely
filing of a notice of appeal shall stay the initial decision until the
authority head decides the issue.
(i) If the defendant files a timely notice of appeal, the Docket
Clerk shall forward two copies of the notice of appeal to the authority
head, and shall forward or make available the record of the proceeding
to the authority head.
(j) The authority head shall decide expeditiously whether
extraordinary circumstances excuse the defendant's failure to answer on
time based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances
excused the defendant's failure to answer on time, the authority head
shall remand the case to the ALJ with instructions to grant the
defendant an opportunity to answer.
(l) If the authority head decides that the defendant's failure to
answer on time is not excused, the authority head shall reinstate the
initial decision of the ALJ, which shall become final and binding upon
the parties 30 days after the authority head issues such decision.
49 CFR 31.11 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall refer the
matter to an ALJ by filing the complaint and answer in accordance with
31.26.
49 CFR 31.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing upon the defendant in the manner
prescribed by 31.8. At the time, the ALJ shall send a copy of such
notice to the representative for the Government and shall file a copy
with the Docket Clerk.
(b) Such notice shall include --
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative of
the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
49 CFR 31.13 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and the
authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the
False Claims Act may participate in these proceedings to the extent
authorized by the provisions of that Act.
49 CFR 31.14 Separation of functions.
(a) The investigating official, the reviewing official, and any
employee or agent of the authority who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case --
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of
the initial decision by the authority head, except as a witness or a
representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C.
3806.
(b) The ALJ shall not be responsible to, or subject to the
supervision or direction of, the investigating official or the reviewing
official.
(c) Except as provided in paragraph (a) of this section, the
representative for the Government may be employed anywhere in the
authority, including in the offices of either the investigating official
or the reviewing official.
49 CFR 31.15 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provisions does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
49 CFR 31.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file a motion for disqualification of a reviewing
official or an ALJ. Such motion shall be accompanied by an affidavit
alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections shall be deemed waived.
(d) Such affidavit shall state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. It shall be accompanied by a certificate of the representative
of record that it is made in good faith.
(e)(1) If the ALJ determines that a reviewing official is
disqualified, the ALJ shall dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case shall be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head may
determine the matter only as part of his or her review of the initial
decision upon appeal, if any.
49 CFR 31.17 Rights of parties.
Except as otherwise limited by this part, all parties may --
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which shall be made part of
the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
49 CFR 31.18 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid delay,
maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to --
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to find Federal statutes or
regulations invalid.
49 CFR 31.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least one
prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
(3) Stipulations and admissions of fact or as to the contents and
authenticity of documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing
and to submit only documentary evidence (subject to the objection of
other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by
the parties or ordered by the ALJ at a prehearing conference.
49 CFR 31.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may
review any relevant and material documents, transcripts, records, and
other materials that relate to the allegations set out in the complaint
and upon which the findings and conclusions of the investigating
official under 31.4(b) are based, unless such documents are subject to
a privilege under Federal law. Upon payment of fees for duplication,
the defendant may obtain copies of such documents.
(b) Upon written request to the reviewing official, the defendant
also may obtain a copy of all exculpatory information in the possession
of the reviewing official or investigating official relating to the
allegations in the complaint, even if it is contained in a document that
would otherwise be privileged. If the document would otherwise be
privileged, only that portion containing exculpatory information must be
disclosed.
(c) The notice sent to the Attorney General from the reviewing
official as described in 31.5 is not discoverable under any
circumstances.
(d) The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed following the serving of an answer pursuant to 31.9.
49 CFR 31.21 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant
document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and 31.22 and 31.23, the term
''documents'' includes information, documents, reports, answers,
records, accounts, papers, and other data and documentary evidence.
Nothing contained herein shall be interpreted to require the creation of
a document.
(c) Unless mutually agreed to by the parties, discovery is available
only as ordered by the ALJ. The ALJ shall regulate the timing of
discovery.
(d) Motions for discovery. (1) A party seeking discovery may file a
motion. Such a motion shall be accompanied by a copy of the request for
production of documents, request for admissions, or interrogatories, or
in the case of depositions, a summary of the scope of the proposed
deposition.
(2) Within ten days of service, a party may file an opposition to the
motion and/or a motion for protective order as provided in 31.24.
(3) The ALJ may grant a motion for discovery only if he or she finds
that the discovery sought --
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the
party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
31.24.
(e) Depositions. (1) If a motion for deposition is granted, the ALJ
shall issue a subpoena for the deponent, which may require the deponent
to produce documents. The subpoena shall specify the time and place at
which the deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the
manner prescribed in 31.8.
(3) The deponent may file a motion to quash the subpoena or a motion
for a protective order within ten days of service. If the ALJ has not
acted on such a motion by the return date, such date shall be suspended
pending the ALJ's final action on the motion.
(4) The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition, which it shall make available to
all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
49 CFR 31.22 Exchange of witness lists, statements, and exhibits.
(a) At least 15 days before the hearing or at such other time as may
be ordered by the ALJ, the parties shall exchange witness lists, copies
of prior statements of proposed witnesses, and copies of proposed
hearing exhibits, including copies of any written statements that the
party intends to offer in lieu of live testimony in accordance with
31.33(b). At the time the above documents are exchanged, any party that
intends to rely on the transcript of deposition testimony in lieu of
live testimony at the hearing, if permitted by the ALJ, shall provide
each party with a copy of the specific pages of the transcript it
intends to introduce into evidence.
(b) If a party objects, the ALJ shall not admit into evidence the
testimony of any witness whose name does not appear on the witness list
of any exhibit not provided to the opposing party as provided above
unless the ALJ finds good cause for the failure or that there is no
prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
documents exchanged in accordance with paragraph (a) of this section
shall be deemed to be authentic for the purpose of admissibility at the
hearing.
49 CFR 31.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an
individual may also require the individual to produce documents at the
hearing.
(c) A party seeking a subpoena shall file a written request therefor
not less than 15 days before the date fixed for the hearing unless
otherwise allowed by the ALJ for good cause shown. Such request shall
be accompanied by a proposed subpoena, which shall specify and documents
to be produced and shall designate the witnesses and describe the
address and location thereof with sufficient particularity to permit
such witnesses to be found.
(d) The subpoena shall specify the time and place at which the
witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner
prescribed in 31.8. A subpoena on a party or upon an individual under
the control of party may be served by first class mail.
(f) A party or the individual to whom the subpoena is directed may
file a motion to quash the subpoena within ten days after service or on
or before the time specified in the subpoena for compliance if it is
less than ten days after service. If the ALJ has not acted on such a
motion by the return date, such date shall be suspended pending the
ALJ's final action on the motion.
49 CFR 31.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery
other than that requested;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a deposition after being sealed be opened only by order of
the ALJ;
(8) That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not be
disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously submit to the ALJ specified
documents or information enclosed in sealed envelopes to be opened as
directed by the ALJ.
49 CFR 31.25 Fees.
The party requesting a subpoena shall pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in United States District Court. A check
for witness fees and mileage shall accompany the subpoena when served,
except that when a subpoena is issued on behalf of the authority, a
check for witness fees and mileage need not accompany the subpoena.
49 CFR 31.26 Filing, form, and service of papers.
(a) Filing and form. (1) A party filing any document under this part
shall submit (i) the original and two copies to the Docket Clerk,
Documentary Services Division (C-55), room 4107, Department of
Transportation, 400 7th Street SW., Washington, DC 20590; and (ii) two
copies simultaneously to the ALJ or, if on appeal, to the authority
head. The requirements of this paragraph apply to all filings under
this part, regardless of whether there is a cross-reference to 31.26.
(2) Every pleading and paper filed in the proceeding shall contain a
caption setting forth the title of the action, the case number assigned
by the Docket Clerk, and a designation of the paper (e.g., motion to
quash subpoena).
(3) Every pleading and paper shall be signed by, and shall contain
the address and telephone nunber of, the party or the person on whose
behalf the paper was filed, or his or her representative.
(4) Papers are considered filed when they are mailed. Date of
mailing may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
(b) Service. A party filing a document shall, at the time of filing,
serve a copy of such document on every other party. Service upon any
party of any document other than those required to be served as
prescribed in 31.8 shall be made by delivering a copy, or by placing a
copy of the document in the United States mail, postage prepaid and
addressed, to the party's last known address. When a party is
represented by a representative, service shall be made upon such
representative in lieu of the actual party.
(c) Proof of service. A certificate of the individual serving the
document by personal delivery or by mail, setting forth the manner of
service, shall be proof of service.
49 CFR 31.27 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed by the Federal government,
in which event it includes the next business day.
(b) When the period of time allowed is less than seven days,
intermediate Saturdays, Sundays, and legal holidays observed by the
Federal government shall be excluded from the computation.
(c) Where a document has been served or issued by placing it in the
United States mail, an additional five days will be added to the the
time permitted for any responses.
49 CFR 31.28 Motions.
(a) Any application to the ALJ for an order or ruling shall be by
motion. Motions shall state the relief sought, the authority relied
upon, and the facts alleged, and shall be filed and served on all other
parties.
(b) Except for motions made during a prehearing conference or at the
hearing, all motions shall be in writing. The ALJ may require that oral
motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for filing
response thereto has expired, except upon consent of the parties or
following a hearing on the motion, but may overrule or deny such motion
without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose of all
outstanding motions prior to the beginning of the hearing.
(f) Except as provided by 31.21(e)(3) and 31.23(f), which concern
subpoenas, the filing or pendency of a motion shall not automatically
alter or extend a deadline or return date.
49 CFR 31.29 Sanctions.
(a) The ALJ may sanction a person, including any party or
representative, for --
(1) Failing to comply with an order, rule, or procedure governing the
proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Sanctions include but are not limited to those specifically set
forth in paragraph (c), (d), and (e) of this section. Any such sanction
shall reasonably relate to the severity and nature of the failure or
misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may --
(1) Draw an inference in favor of the requesting party with regard to
the information sought;
(2) In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part
commenced by service of a notice of hearing, the ALJ may dismiss the
action or may issue an initial decision imposition penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other document which is not filed in a timely fashion.
49 CFR 31.30 The hearing and burden of proof.
(a) The ALJ shall conduct a hearing on the record in order to
determine whether the defendant is liable for a civil penalty or
assessment under 31.3 and, if so, the appropriate amount of any such
civil penalty or assessment considering any aggravating or mitigating
factors.
(b) The authority shall prove defendent's liability and any
aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise ordered
by the ALJ for good cause shown.
49 CFR 31.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the authority head, upon appeal, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted, ordinarily double damages
and a significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the authority head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false fictitious, of fraudulent claims or
statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the management
of Government programs and operations, including particularly the impact
on the intended beneficiaries of such programs;
(8) Whether the defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
defendant, the extent to which the defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree of
the defendant's sophistication with respect to it, including the extent
of the defendant's prior participation in the program or in similar
transactions;
(15) Whether the defendant has been found, in any criminal, civil, or
administrative proceeding to have engaged in similar misconduct or to
have dealt dishonestly with the Government of the United States or of a
State, directly or indirectly; and
(16) The need to deter the defendant and others from engaging in the
same or similar misconduct.
(c) Nothing in this section shall be construed to limit the ALJ or
the authority head from considering any other factors that in any given
case may mitigate or aggravate the offense for which penalties and
assessments are imposed.
49 CFR 31.32 Location of hearing.
(a) The hearing may be held --
(1) In any judicial district of the United States in which the
defendant resides or transacts business;
(2) In any judicial district of the United States in which the claim
or statement in issue was made; or
(3) In such other place as may be agreed upon by the defendant and
the ALJ.
(b) Each party shall have the opportunity to present written and oral
argument with respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered by
the ALJ.
49 CFR 31.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony at
the hearing shall be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. Any such written statement
must be provided to all other parties along with the last known address
of such witness, in a manner which allows sufficient time for other
parties to subpoena such witness for cross-examination at the hearing.
Prior written statements of witnesses proposed to testify at the hearing
and deposition transcripts shall be exchanged as provided in 31.22(a).
(c) The ALJ shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the
truth, (2) avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such
cross-examination as may be required for a full and true disclosure of
the facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on
matters relevant to the proceeding without regard to the scope of his or
her direct examination. To the extent permitted by the ALJ,
cross-examination on matters outside the scope of direct examination
shall be conducted in the manner of direct examination and may proceed
by leading questions only if the witness is a hostile witness, an
adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of --
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or
employee of the party (i) appearing for the entity pro se or (ii)
designated by the party's representative; or
(3) An individual whose presence is shown by a party to be essential
to the presentation of its case, including an individual employed by the
Government engaged in assisting the representative for the Government.
49 CFR 31.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided in this part, the ALJ shall not be bound by
the Federal Rules of Evidence. However, the ALJ may apply the Federal
Rules of Evidence where appropriate, e.g., to exclude unreliable
evidence.
(c) The ALJ shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or needless
presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under Federal law.
(f) Evidence concerning offers of compromise or settlement shall be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal witnesses
and evidence.
(h) All documents and other evidence offered or taken for the record
shall be open to examination by all parties, unless otherwise ordered by
the ALJ pursuant to 31.24.
49 CFR 31.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be
obtained following the hearing from the ALJ at a cost not to exceed the
actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted
at the hearing, and all papers and requests filed in the proceeding
constitute the record for the decision by the ALJ and the authority
head.
(c) The record may be inspected at the offices of the Docket Clerk
(see 31.26(a)(1) for address) and copied (upon payment of a reasonable
fee) by anyone, unless otherwise ordered by the ALJ pursuant to 31.24.
49 CFR 31.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ shall fix the
time for filing such briefs. Such briefs may be accompanied by proposed
findings of fact and conclusions of law. The ALJ may permit the parties
to file reply briefs.
49 CFR 31.37 Initial decision.
(a) The ALJ shall issue an initial decision based only on the record,
which shall contain findings of fact, conclusions of law, and the amount
of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the
following issues:
(1) Whether the claims or statements identified in the complaint, or
any portions thereof, violate 31.3;
(2) If the person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case, such
as those described in 31.31.
(c) The ALJ shall promptly serve the intitial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ shall at the same time
serve all parties with a statement describing the right of any defendant
determined to be liable for a civil penalty or assessment to file a
motion for reconsideration with the ALJ or a notice of appeal with the
authority head. If the ALJ fails to meet the deadline contained in this
paragraph, he or she shall notify the parties of the reason for the
delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the
authority head, or a motion for reconsideration of the intitial decision
is timely filed, the initial decision shall constitute the final
decision of the authority head and shall be final and binding on the
parties 30 days after it is issued by the ALJ.
49 CFR 31.38 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of receipt of the initial decision. If service was made by mail,
receipt will be presumed to be five days from the date of mailing in the
absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have been
erroneously decided and the nature of the alleged errors. Such motion
shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of
the ALJ.
(d) No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying it
or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial
decision shall constitute the final decision of the authority head and
shall be final and binding on the parties 30 days after the ALJ denies
the motion, unless the initial decision is timely appealed to the
authority head in accordance with 31.39.
(g) If the ALJ issues a revised initial decision, that decision shall
constitute the final decision of the authority head and shall be final
and binding on the parties 30 days after it is issued, unless it is
timely appealed to the authority head in accordance with 31.39.
49 CFR 31.39 Appeal to authority head.
(a) Any defendant who has served a timely answer and who is
determined in an initial decision to be liable for a civil penalty or
assessment may appeal such decision to the authority head by filing a
notice of appeal in accordance with this section and 31.26.
(b)(1) A notice of appeal may be filed at any time within 30 days
after the ALJ issues an initial decision. However, if another party
files a motion for reconsideration under 31.38, consideration of the
appeal shall be stayed automatically pending resolution of the motion
for reconsideration.
(2) If a motion for reconsideration is timely filed, a notice of
appeal may be filed within 30 days after the ALJ denies the motion or
issues a revised initial decision, whichever applies.
(3) The authority head may extend the initial 30-day period for an
additional 30 days if the defendant files with the authority head a
request for an extension within the initial 30-day period and shows good
cause.
(c) If the defendant files a timely notice of appeal and the time for
filing motions for reconsideration under 31.38 has expired, the Docket
Clerk shall forward two copies of the notice of appeal to the authority
head, and shall forward or make available the record of the proceeding
to the authority head.
(d) A notice of appeal shall be accompanied by a written brief
specifying exceptions to the initial decision and reasons supporting the
exceptions.
(e) The representative for the Government may file a brief in
opposition to exceptions within 30 days of receiving the notice of
appeal and accompanying brief.
(f) There is no right to appear personally before the authority head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the initial decision, the authority head shall not
consider any objection that was not raised before the ALJ unless a
demonstration is made of extraordinary circumstances causing the failure
to raise the objection.
(i) If any party demonstrates to the satisfaction of the authority
head that additional evidence not presented at such hearing is material
and that there were reasonable grounds for the failure to present such
evidence at such hearing, the authority head shall remand the matter to
the ALJ for consideration of such additional evidence.
(j) The authority head may affirm, reduce, reverse, compromise,
remand, or settle any penalty or assessment determined by the ALJ in any
initial decision.
(k) The authority head shall promptly serve each party to the appeal
with a copy of the decision of the authority head and with a statement
describing the right of any person determined to be liable for a penalty
or assessment to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a defendant has exhausted all administrative remedies under
this part and within 60 days after the date on which the authority head
serves the defendant with a copy of the authority head's decision, a
determination that a defendant is liable under 31.3 is final and is not
subject to judicial review.
49 CFR 31.40 Stays ordered by the Department of Justice.
If at any time the Attorney General or an Assistant Attorney General
designated by the Attorney General transmits to the authority head a
written finding that continuation of the administrative process
described in this part with respect to a claim or statement may
adversely affect any pending or potential criminal or civil action
related to such claim or statement, the authority head shall stay the
process immediately. The authority head may order the process resumed
only upon receipt of the written authorization of the Attorney General.
49 CFR 31.41 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition
of a motion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision of
the authority head.
49 CFR 31.42 Judicial review.
Section 3805 of Title 31, United States Code, authorizes judicial
review by an appropriate United States District Court of a final
decision of the authority head imposing penalties or assessments under
this part and specifies the procedures for such review.
49 CFR 31.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of Title 31, United States Code, authorize
actions for collection of civil penalties and assessments imposed under
this part and specify the procedures for such actions.
49 CFR 31.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under 31.42 or 31.43, or any
amount agreed upon in a compromise or settlement under 31.46, may be
collected by administrative offset under 31 U.S.C. 3716, except that an
administrative offset may not be made under this subsection against a
refund of an overpayment of Federal taxes, then or later owing by the
United States to the defendant.
49 CFR 31.45 Deposit in Treasury of United States.
All amounts collected pursuant to this part shall be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).
49 CFR 31.46 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
reviewing official is permitted to issue a complaint and before the date
on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an initial decision, except during the pendency of any review
under 31.42 or during the pendency of any action to collect penalties
and assessments under 31.43.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
31.42 or of any action to recover penalties and assessments under 31
U.S.C. 3806.
(e) The investigating official may recommend settlement terms to the
reviewing official, the authority head, or the Attorney General, as
appropriate. The reviewing official may recommend settlement terms to
the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
49 CFR 31.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in 31.8 within 6 years after the date
on which such claim or statement is made.
(b) If the defendant fails to serve a timely answer, service of a
notice under 31.10(b) shall be deemed a notice of hearing for purposes
of this section.
(c) The statute of limitations may be extended by agreement of the
parties.
49 CFR 31.47 Pt. 37
49 CFR 31.47 PART 37 -- TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES (ADA)
49 CFR 31.47 Subpart A -- General
Sec.
37.1 Purpose.
37.3 Definitions.
37.5 Nondiscrimination.
37.7 Standards for accessible vehicles.
37.9 Standards for accessible transportation facilities.
37.11 Administrative enforcement.
37.13 Effective date for certain vehicle lift specifications.
37.15 -- 37.19 (Reserved)
49 CFR 31.47 Subpart B -- Applicability
37.21 Applicability: General.
37.23 Service under contract.
37.25 University transportation systems.
37.27 Transportation for elementary and secondary education systems.
37.29 Private entities providing taxi service.
37.31 Vanpools.
37.33 Airport transportation systems.
37.35 Supplemental service for other transportation modes.
37.37 Other applications.
37.39 (Reserved)
49 CFR 31.47 Subpart C -- Transportation Facilities
37.41 Construction of transportation facilities by public entities.
37.43 Alteration of transportation facilities by public entities.
37.45 Construction and alteration of transportation facilities by
private entities.
37.47 Key stations in light and rapid rail systems.
37.49 Designation of responsible person(s) for intercity and commuter
rail stations.
37.51 Key stations in commuter rail systems.
37.53 Exception for New York and Philadelphia.
37.55 Intercity rail station accessibility.
37.57 Required cooperation.
37.59 Differences in accessibility completion dates.
37.61 Public transportation programs and activities in existing
facilities.
37.63 -- 37.69 (Reserved)
49 CFR 31.47 Subpart D -- Acquisition of Accessible Vehicles by Public
Entities
37.71 Purchase or lease of new non-rail vehicles by public entities
operating fixed route systems.
37.73 Purchase or lease of used non-rail vehicles by public entities
operating fixed route systems.
37.75 Remanufacture of non-rail vehicles and purchase or lease of
remanufactured non-rail vehicles by public entities operating fixed
route systems.
37.77 Purchase or lease of new non-rail vehicles by public entities
operating demand responsive systems for the general public.
37.79 Purchase or lease of new rail vehicles by public entities
operating rapid or light rail systems.
37.81 Purchase or lease of used rail vehicles by public entities
operating rapid or light rail systems.
37.83 Remanufacture of rail vehicles and purchase or lease of
remanufactured rail vehicles by public entities operating rapid or light
rail systems.
37.85 Purchase or lease of new intercity and commuter rail cars.
37.87 Purchase or lease of used intercity and commuter rail cars.
37.89 Remanufacture of intercity and commuter rail cars and purchase
or lease of remanufactured intercity and commuter rail cars.
37.91 Wheelchair locations and food service on intercity rail trains.
37.93 One car per train rule.
37.95 Ferries and other passenger vessels operated by public
entities. (Reserved)
37.97 -- 37.99 (Reserved)
49 CFR 31.47 Subpart E -- Acquisition of Accessible Vehicles by Private
Entities
37.101 Purchase or lease of vehicles by private entities not
primarily engaged in the business of transporting people.
37.103 Purchase or lease of new non-rail vehicles by private entities
primarily engaged in the business of transporting people.
37.105 Equivalent service standard.
37.107 Acquisition of passenger rail cars by private entities
primarily engaged in the business of transporting people.
37.109 Ferries and other passenger vessels operated by private
entities. (Reserved)
37.111 -- 37.119 (Reserved)
49 CFR 31.47 Subpart F -- Paratransit as a Complement to Fixed Route
Service
37.121 Requirement for comparable complementary paratransit service.
37.123 ADA paratransit eligibility: Standards.
37.125 ADA paratransit eligibility: Process.
37.127 Complementary paratransit service for visitors.
37.129 Types of service.
37.131 Service criteria for complementary paratransit.
37.133 Subscription service.
37.135 Submission of paratransit plan.
37.137 Paratransit plan development.
37.139 Plan contents.
37.141 Requirements for a joint paratransit plan.
37.143 Paratransit plan implementation.
37.145 State comment on plans.
37.147 Considerations during UMTA review.
37.149 Disapproved plans.
37.151 Waiver for undue financial burden.
37.153 UMTA waiver determination.
37.155 Factors in decision to grant an undue financial burden waiver.
37.157 -- 37.159 (Reserved)
49 CFR 31.47 Subpart G -- Provision of Service
37.161 Maintenance of accessible features: General.
37.163 Keeping vehicle lifts in operative condition -- public
entities.
37.165 Lift and securement use.
37.167 Other service requirements.
37.169 Interim requirements for over-the-road bus service operated by
private entities.
37.171 Equivalency requirement for demand responsive service operated
by private entities not primarily engaged in the business of
transporting people.
37.173 Training requirements.
Appendix A to part 37 -- Standards for Accessible Transportation
Facilities
Appendix B to part 37 -- UMTA Regional Offices
Appendix C to part 37 -- Certifications
Appendix D to part 37 -- Construction and Interpretations of
Provisions of 49 CFR part 37
Authority: Americans with Disabilities Act of 1990 (42 U.S.C.
12101-12213); 49 U.S.C. 322.
Source: 56 FR 45621, Sept. 6, 1991, unless otherwise noted.
Effective Date Note: At 56 FR 45621, Sept. 6, 1991, Part 37 was
revised effective October 7, 1991. For the convenience of the user,
part 37 remaining in effect until October 7, 1991, follows the text of
this new part.
49 CFR 31.47 Subpart A -- General
49 CFR 37.1 Purpose.
The purpose of this part is to implement the transportation and
related provisions of titles II and III of the Americans with
Disabilities Act of 1990.
49 CFR 37.3 Definitions.
As used in this part:
Accessible means, with respect to vehicles and facilities, complying
with the accessibility requirements of parts 37 and 38 of this title.
The Act or ADA means the Americans with Disabilities Act of 1990
(Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C.
225 and 611), as it may be amended from time to time.
Administrator means Administrator of the Urban Mass Transportation
Administration, or his or her designee.
Alteration means a change to an existing facility, including, but not
limited to, remodeling, renovation, rehabilitation, reconstruction,
historic restoration, changes or rearrangement in structural parts or
elements, and changes or rearrangement in the plan configuration of
walls and full-height partitions. Normal maintenance, reroofing,
painting or wallpapering, asbestos removal, or changes to mechanical or
electrical systems are not alterations unless they affect the usability
of the building or facility.
Automated guideway transit system or AGT means a fixed-guideway
transit system which operates with automated (driverless) individual
vehicles or multi-car trains. Service may be on a fixed schedule or in
response to a passenger-activated call button.
Auxiliary aids and services includes:
(1) Qualified interpreters, notetakers, transcription services,
written materials, telephone headset amplifiers, assistive listening
devices, assistive listening systems, telephones compatible with hearing
aids, closed caption decoders, closed and open captioning, text
telephones (also known as telephone devices for the deaf, or TDDs),
videotext displays, or other effective methods of making aurally
delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings, Brailled
materials, large print materials, or other effective methods of making
visually delivered materials available to individuals with visual
impairments;
(3) Acquisition or modification of equipment or devices; or
(4) Other similar services or actions.
Bus means any of several types of self-propelled vehicles, generally
rubber-tired, intended for use on city streets, highways, and busways,
including but not limited to minibuses, forty- and thirty-foot buses,
articulated buses, double-deck buses, and electrically powered trolley
buses, used by public entities to provide designated public
transportation service and by private entities to provide transportation
service including, but not limited to, specified public transportation
services. Self-propelled, rubber-tired vehicles designed to look like
antique or vintage trolleys are considered buses.
Commerce means travel, trade, transportation, or communication among
the several states, between any foreign country or any territory or
possession and any state, or between points in the same state but
through another state or foreign country.
Commuter authority means any state, local, regional authority,
corporation, or other entity established for purposes of providing
commuter rail transportation (including, but not necessarily limited to,
the New York Metropolitan Transportation Authority, the Connecticut
Department of Transportation, the Maryland Department of Transportation,
the Southeastern Pennsylvania Transportation Authority, the New Jersey
Transit Corporation, the Massachusetts Bay Transportation Authority, the
Port Authority Trans-Hudson Corporation, and any successor agencies) and
any entity created by one or more such agencies for the purposes of
operating, or contracting for the operation of, commuter rail
transportation.
Commuter bus service means fixed route bus service, characterized by
service predominantly in one direction during peak periods, limited
stops, use of multi-ride tickets, and routes of extended length, usually
between the central business district and outlying suburbs. Commuter
bus service may also include other service, characterized by a limited
route structure, limited stops, and a coordinated relationship to
another mode of transportation.
Commuter rail car means a rail passenger car obtained by a commuter
authority for use in commuter rail transportation.
Commuter rail transportation means short-haul rail passenger service
operating in metropolitan and suburban areas, whether within or across
the geographical boundaries of a state, usually characterized by reduced
fare, multiple ride, and commutation tickets and by morning and evening
peak period operations. This term does not include light or rapid rail
transportation.
Demand responsive system means any system of transporting
individuals, including the provision of designated public transportation
service by public entities and the provision of transportation service
by private entities, including but not limited to specified public
transportation service, which is not a fixed route system.
Designated public transportation means transportation provided by a
public entity (other than public school transportation) by bus, rail, or
other conveyance (other than transportation by aircraft or intercity or
commuter rail transportation) that provides the general public with
general or special service, including charter service, on a regular and
containing basis.
Disability means, with respect to an individual, a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; a record of such an impairment; or
being regarded as having such an impairment.
(1) The phrase physical or mental impairment means --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory
including speech organs, cardiovascular, reproductive, digestive,
genito-urinary, hemic and lymphatic, skin, and endocrine;
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities;
(iii) The term physical or mental impairment includes, but is not
limited to, such contagious or noncontagious diseases and conditions as
orthopedic, visual, speech, and hearing impairments; cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, specific learning
disabilities, HIV disease, tuberculosis, drug addiction and alcoholism;
(iv) The phrase physical or mental impairment does not include
homosexuality or bisexuality.
(2) The phrase major life activities means functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and work.
(3) The phrase has a record of such an impairment means has a history
of, or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.
(4) The phrase is regarded as having such an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities, but which is treated by a public or private
entity as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits a
major life activity only as a result of the attitudes of others toward
such an impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by a public or private entity as having such
an impairment.
(5) The term disability does not include --
(i) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania;
(iii) Psychoactive substance abuse disorders resulting from the
current illegal use of drugs.
Facility means all or any portion of buildings, structures, sites,
complexes, equipment, roads, walks, passageways, parking lots, or other
real or personal property, including the site where the building,
property, structure, or equipment is located.
Fixed route system means a system of transporting individuals (other
than by aircraft), including the provision of designated public
transportation service by public entities and the provision of
transportation service by private entities, including, but not limited
to, specified public transportation service, on which a vehicle is
operated along a prescribed route according to a fixed schedule.
High speed rail means a rail service having the characteristics of
intercity rail service which operates primarily on a dedicated guideway
or track not used, for the most part, by freight, including, but not
limited to, trains on welded rail, magnetically levitated (maglev)
vehicles on a special guideway, or other advanced technology vehicles,
designed to travel at speeds in excess of those possible on other types
of railroads.
Individual with a disability means a person who has a disability, but
does not include an individual who is currently engaging in the illegal
use of drugs, when a public or private entity acts on the basis of such
use.
Intercity rail passenger car means a rail car, intended for use by
revenue passengers, obtained by the National Railroad Passenger
Corporation (Amtrak) for use in intercity rail transportation.
Intercity rail transportation means transportation provided by
Amtrak.
Light rail means a streetcar-type vehicle operated on city streets,
semi-exclusive rights of way, or exclusive rights of way. Service may
be provided by step-entry vehicles or by level boarding.
New vehicle means a vehicle which is offered for sale or lease after
manufacture without any prior use.
Operates includes, with respect to a fixed route or demand responsive
system, the provision of transportation service by a public or private
entity itself or by a person under a contractual or other arrangement or
relationship with the entity.
Over-the-road bus means a bus characterized by an elevated passenger
deck located over a baggage compartment.
Paratransit means comparable transportation service required by the
ADA for individuals with disabilities who are unable to use fixed route
transportation systems.
Private entity means any entity other than a public entity.
Public entity means:
(1) Any state or local government;
(2) Any department, agency, special purpose district, or other
instrumentality of one or more state or local governments; and
(3) The National Railroad Passenger Corporation (Amtrak) and any
commuter authority.
Purchase or lease, with respect to vehicles, means the time at which
an entity is legally obligated to obtain the vehicles, such as the time
of contract execution.
Public school transportation means transportation by schoolbus
vehicles of schoolchildren, personnel, and equipment to and from a
public elementary or secondary school and school-related activities.
Rapid rail means a subway-type transit vehicle railway operated on
exclusive private rights of way with high level platform stations.
Rapid rail also may operate on elevated or at grade level track
separated from other traffic.
Remanufactured vehicle means a vehicle which has been structurally
restored and has had new or rebuilt major components installed to extend
its service life.
Secretary means the Secretary of Transportation or his/her designee.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
Service animal means any guide dog, signal dog, or other animal
individually trained to work or perform tasks for an individual with a
disability, including, but not limited to, guiding individuals with
impaired vision, alerting individuals with impaired hearing to intruders
or sounds, providing minimal protection or rescue work, pulling a
wheelchair, or fetching dropped items.
Solicitation means the closing date for the submission of bids or
offers in a procurement.
Specified public transportation means transportation by bus, rail, or
any other conveyance (other than aircraft) provided by a private entity
to the general public, with general or special service (including
charter service) on a regular and continuing basis.
Station means, with respect to intercity and commuter rail
transportation, the portion of a property located appurtenant to a right
of way on which intercity or commuter rail transportation is operated,
where such portion is used by the general public and is related to the
provision of such transportation, including passenger platforms,
designated waiting areas, restrooms, and, where a public entity
providing rail transportation owns the property, concession areas, to
the extent that such public entity exercises control over the selection,
design, construction, or alteration of the property, but this term does
not include flag stops (i.e., stations which are not regularly scheduled
stops but at which trains will stop to board or detrain passengers only
on signal or advance notice).
Transit facility means, for purposes of determining the number of
text telephones needed consistent with section 10.3.1(12) of appendix A
to this part, a physical structure the primary function of which is to
facilitate access to and from a transportation system which has
scheduled stops at the structure. The term does not include an open
structure or a physical structure the primary purpose of which is other
than providing transportation services.
UMT Act means the Urban Mass Transportation Act of 1964, as amended
(49 U.S.C. App. 1601 et seq.).
Used vehicle means a vehicle with prior use.
Vanpool means a voluntary commuter ridesharing arrangement, using
vans with a seating capacity greater than 7 persons (including the
driver) or buses, which provides transportation to a group of
individuals traveling directly from their homes to their regular places
of work within the same geographical area, and in which the
commuter/driver does not receive compensation beyond reimbursement for
his or her costs of providing the service.
Vehicle, as the term is applied to private entities, does not include
a rail passenger car, railroad locomotive, railroad freight car, or
railroad caboose, or other rail rolling stock described in section 242
of title III of the Act.
Wheelchair means a mobility aid belonging to any class of three or
four-wheeled devices, usable indoors, designed for and used by
individuals with mobility impairments, whether operated manually or
powered. A ''common wheelchair'' is such a device which does not exceed
30 inches in width and 48 inches in length measured two inches above the
ground, and does not weigh more than 600 pounds when occupied.
49 CFR 37.5 Nondiscrimination.
(a) No entity shall discriminate against an individual with a
disability in connection with the provision of transportation service.
(b) Notwithstanding the provision of any special transportation
service to individuals with disabilities, an entity shall not, on the
basis of disability, deny to any individual with a disability the
opportunity to use the entity's transportation service for the general
public, if the individual is capable of using that service.
(c) An entity shall not require an individual with a disability to
use designated priority seats, if the individual does not choose to use
these seats.
(d) An entity shall not impose special charges, not authorized by
this part, on individuals with disabilities, including individuals who
use wheelchairs, for providing services required by this part or
otherwise necessary to accommodate them.
(e) An entity shall not require that an individual with disabilities
be accompanied by an attendant.
(f) Private entities that are primarily engaged in the business of
transporting people and whose operations affect commerce shall not
discriminate against any individual on the basis of disability in the
full and equal enjoyment of specified transportation services. This
obligation includes, with respect to the provision of transportation
services, compliance with the requirements of the rules of the
Department of Justice concerning eligibility criteria, making reasonable
modifications, providing auxiliary aids and services, and removing
barriers (28 CFR 36.301 -- 36.306).
(g) An entity shall not refuse to serve an individual with a
disability or require anything contrary to this part because its
insurance company conditions coverage or rates on the absence of
individuals with disabilities or requirements contrary to this part.
(h) It is not discrimination under this part for an entity to refuse
to provide service to an individual with disabilities because that
individual engages in violent, seriously disruptive, or illegal conduct.
However, an entity shall not refuse to provide service to an individual
with disabilities solely because the individual's disability results in
appearance or involuntary behavior that may offend, annoy, or
inconvenience employees of the entity or other persons.
49 CFR 37.7 Standards for accessible vehicles.
(a) For purposes of this part, a vehicle shall be considered to be
readily accessible to and usable by individuals with disabilities if it
meets the requirements of this part and the standards set forth in part
38 of this title.
(b) For purposes of implementing the equivalent facilitation
provision in 38.2 of this title, a determination of compliance will be
made by the Administrator or the Federal Railroad Administrator, as
applicable, on a case-by-case basis. An entity wishing to employ
equivalent facilitation in relation to a specification of part 38 of
this title shall submit such a request to UMTA or FRA, as applicable,
and include the following information:
(1) Entity name, address, contact person, and telephone;
(2) Specific provision of part 38 of this title with which the entity
is unable to comply;
(3) Reasons for inability to comply;
(4) Alternative method of compliance, with demonstration of how the
alternative meets or exceeds the level of accessibility or usability of
the vehicle provided in part 38 of this title; and
(5) Public participation used in developing alternative method of
compliance and input from that participation.
(c) Over-the-road buses acquired by public entities (or by a
contractor to a public entity as provided in 37.23 of this part) shall
comply with 38.23 and subpart G of part 38 of this title.
49 CFR 37.9 Standards for accessible transportation facilities.
(a) For purposes of this part, a transportation facility shall be
considered to be readily accessible to and usable by individuals with
disabilities if it meets the requirements of this part and the standards
set forth in appendix A to this part.
(b) Facility alterations begun before January 26, 1992, in a good
faith effort to make a facility accessible to individuals with
disabilities may be used to meet the key station requirements set forth
in 37.47 and 37.51 of this part, even if these alterations are not
consistent with the standards set forth in appendix A to this part, if
the modifications complied with the Uniform Federal Accessibility
Standard (UFAS) (41 CFR part 101-19, subpart 101-19.6) or ANSI
A117.1(1980) (American National Standards Specification for Making
Buildings and Facilities Accessible to and Usable by, the Physically
Handicapped). This paragraph applies only to alterations of individual
elements and spaces and only to the extent that provisions covering
those elements or spaces are contained in UFAS or ANSI A117.1, as
applicable.
(c) Public entities shall ensure the construction of new bus stop
pads are in compliance with section 10.2.1.(1) of appendix A to this
part, to the extent construction specifications are within their
control.
(d) For purposes of implementing the equivalent facilitation
provision in section 2.2 of appendix A to this part, a determination of
compliance will be made by the Administrator or the Federal Railroad
Administrator, as applicable, on a case-by-case basis. An entity
wishing to employ equivalent facilitation in relation to a specification
of appendix A to this part shall submit such a request to UMTA or FRA,
as applicable, and include the following information:
(1) Entity name, address, contact person and telephone;
(2) Specific provision of appendix A with which the entity is unable
to comply;
(3) Reasons for inability to comply;
(4) Alternative method of compliance, with demonstration of how the
alternative meets or exceeds the level of accessibility or usability of
the facility provided in appendix A; and
(5) Public participation used in developing alternative method of
compliance and input from that participation.
49 CFR 37.11 Administrative enforcement.
(a) Recipients of Federal financial assistance from the Department of
Transportation are subject to administrative enforcement of the
requirements of this part under the provisions of 49 CFR part 27,
subpart F.
(b) Public entities, whether or not they receive Federal financial
assistance, also are subject to enforcement action as provided by the
Department of Justice.
(c) Private entities, whether or not they receive Federal financial
assistance, are also subject to enforcement action as provided in the
regulations of the Department of Justice implementing title III of the
ADA (28 CFR part 36).
49 CFR 37.13 Effective date for certain vehicle lift specifications.
The vehicle lift specifications identified in 38.23(b)(6),
38.83(b)(6), 38.95(b)(6), and 38.125(b) of this title apply to
solicitations for vehicles under this part after January 25, 1992.
37.15 -- 37.19 (Reserved)
49 CFR 37.13 Subpart B -- Applicability
49 CFR 37.21 Applicability: General.
(a) This part applies to the following entities, whether or not they
receive Federal financial assistance from the Department of
Transportation:
(1) Any public entity that provides designated public transportation
or intercity or commuter rail transportation;
(2) Any private entity that provides specified public transportation;
and
(3) Any private entity that is not primarily engaged in the business
of transporting people but operates a demand responsive or fixed route
system.
(b) For entities receiving Federal financial assistance from the
Department of Transportation, compliance with applicable requirements of
this part is a condition of compliance with section 504 of the
Rehabilitation Act of 1973 and of receiving financial assistance.
(c) Entities to which this part applies also may be subject to ADA
regulations of the Department of Justice (28 CFR parts 35 or 36, as
applicable). The provisions of this part shall be interpreted in a
manner that will make them consistent with applicable Department of
Justice regulations. In any case of apparent inconsistency, the
provisions of this part shall prevail.
49 CFR 37.23 Service under contract.
(a) When a public entity enters into a contractual or other
arrangement or relationship with a private entity to operate fixed route
or demand responsive service, the public entity shall ensure that the
private entity meets the requirements of this part that would apply to
the public entity if the public entity itself provided the service.
(b) A private entity which purchases or leases new, used, or
remanufactured vehicles, or remanufactures vehicles, for use, or in
contemplation of use, in fixed route or demand responsive service under
contract or other arrangement or relationship with a public entity,
shall acquire accessible vehicles in all situations in which the public
entity itself would be required to do so by this part.
(c) A public entity which enters into a contractual or other
arrangement or relationship with a private entity to provide fixed route
service shall ensure that the percentage of accessible vehicles operated
by the public entity in its overall fixed route or demand responsive
fleet is not diminished as a result.
(d) A private entity that provides fixed route or demand responsive
transportation service under contract or other arrangement with another
private entity shall be governed, for purposes of the transportation
service involved, by the provisions of this part applicable to the other
entity.
49 CFR 37.25 University transportation systems.
(a) Transportation services operated by private institutions of
higher education are subject to the provisions of this part governing
private entities not primarily engaged in the business of transporting
people.
(b) Transportation systems operated by public institutions of higher
education are subject to the provisions of this part governing public
entities. If a public institution of higher education operates a fixed
route system, the requirements of this part governing commuter bus
service apply to that system.
49 CFR 37.27 Transportation for elementary and secondary education
systems.
(a) The requirements of this part do not apply to public school
transportation.
(b) The requirements of this part do not apply to the transportation
of school children to and from a private elementary or secondary school,
and its school-related activities, if the school is a recipient of
Federal financial assistance, subject to the provisions of section 504
of the Rehabilitation Act of 1973, and is providing transportation
service to students with disabilities equivalent to that provided to
students without disabilities. The test of equivalence is the same as
that provided in 37.105. If the school does not meet the criteria of
this paragraph for exemption from the requirements of this part, it is
subject to the requirements of this part for private entities not
primarily engaged in transporting people.
49 CFR 37.29 Private entities providing taxi service.
(a) Providers of taxi service are subject to the requirements of this
part for private entities primarily engaged in the business of
transporting people which provide demand responsive service.
(b) Providers of taxi service are not required to purchase or lease
accessible automobiles. When a provider of taxi service purchases or
leases a vehicle other than an automobile, the vehicle is required to be
accessible unless the provider demonstrates equivalency as provided in
37.105 of this part. A provider of taxi service is not required to
purchase vehicles other than automobiles in order to have a number of
accessible vehicles in its fleet.
(c) Private entities providing taxi service shall not discriminate
against individuals with disabilities by actions including, but not
limited to, refusing to provide service to individuals with disabilities
who can use taxi vehicles, refusing to assist with the stowing of
mobility devices, and charging higher fares or fees for carrying
individuals with disabilities and their equipment than are charged to
other persons.
49 CFR 37.31 Vanpools.
Vanpool systems which are operated by public entities, or in which
public entities own or purchase or lease the vehicles, are subject to
the requirements of this part for demand responsive service for the
general public operated by public entities. A vanpool system in this
category is deemed to be providing equivalent service to individuals
with disabilities if a vehicle that an individual with disabilities can
use is made available to and used by a vanpool in which such an
individual chooses to participate.
49 CFR 37.33 Airport transportation systems.
(a) Transportation systems operated by public airport operators,
which provide designated public transportation and connect parking lots
and terminals or provide transportation among terminals, are subject to
the requirements of this part for fixed route or demand responsive
systems, as applicable, operated by public entities. Public airports
which operate fixed route transportation systems are subject to the
requirements of this part for commuter bus service operated by public
entities. The provision by an airport of additional accommodations
(e.g., parking spaces in a close-in lot) is not a substitute for meeting
the requirements of this part.
(b) Fixed-route transportation systems operated by public airport
operators between the airport and a limited number of destinations in
the area it serves are subject to the provisions of this part for
commuter bus systems operated by public entities.
(c) Private jitney or shuttle services that provide transportation
between an airport and destinations in the area it serves in a
route-deviation or other variable mode are subject to the requirements
of this part for private entities primarily engaged in the business of
transporting people which provide demand responsive service. They may
meet equivalency requirements by such means as sharing or pooling
accessible vehicles among operators, in a way that ensures the provision
of equivalent service.
49 CFR 37.35 Supplemental service for other transportation modes.
(a) Transportation service provided by bus or other vehicle by an
intercity commuter or rail operator, as an extension of or supplement to
its rail service, and which connects an intercity rail station and
limited other points, is subject to the requirements of this part for
fixed route commuter bus service operated by a public entity.
(b) Dedicated bus service to commuter rail systems, with through
ticketing arrangements and which is available only to users of the
commuter rail system, is subject to the requirements of this part for
fixed route commuter bus service operated by a public entity.
49 CFR 37.37 Other applications.
(a) A private entity does not become subject to the requirements of
this part for public entities, because it receives an operating subsidy
from, is regulated by, or is granted a franchise or permit to operate by
a public entity.
(b) Shuttle systems and other transportation services operated by
privately-owned hotels, car rental agencies, historical or theme parks,
and other public accommodations are subject to the requirements of this
part for private entities not primarily engaged in the business of
transporting people. Either the requirements for demand responsive or
fixed route service may apply, depending upon the characteristics of
each individual system of transportation.
(c) Conveyances used by members of the public primarily for
recreational purposes rather than for transporation (e.g., amusement
park rides, ski lifts, or historic rail cars or trolleys operated in
museum settings) are not subject to the requirements of this part. Such
conveyances are subject to Department of Justice regulations
implementing title II or title III of the ADA (28 CFR part 35 or 36), as
applicable.
(d) Transportation services provided by an employer solely for its
own employees are not subject to the requirements of this part. Such
services are subject to the regulations of the Equal Employment
Opportunity Commission under title I of the ADA (29 CFR part 1630) and,
with respect to public entities, the regulations of the Department of
Justice under title II of the ADA (28 CFR part 35).
(e) Transportation systems operated by private clubs or
establishments exempted from coverage under title II of the Civil Rights
Act of 1964 (42 U.S.C. 2000-a(e)) or religious organizations or entities
controlled by religious organizations are not subject to the
requirements of this part.
(f) If a parent private company is not primarily engaged in the
business of transporting people, or is not a place of public
accommodation, but a subsidiary company or an operationally distinct
segment of the company is primarily engaged in the business of
transporting people, the transportation service provided by the
subsidiary or segment is subject to the requirements of this part for
private entities primarily engaged in the business of transporting
people.
(g) High-speed rail systems operated by public entities are subject
to the requirements of this part governing intercity rail systems.
(h) Private rail systems providing fixed route or specified public
transportation service are subject to the requirements of 37.107 with
respect to the acquisition of rail passenger cars. Such systems are
subject to the requirements of the regulations of the Department of
Justice implementing title III of the ADA (28 CFR part 36) with respect
to stations and other facilities.
37.39 (Reserved)
49 CFR 37.37 Subpart C -- Transportation Facilities
49 CFR 37.41 Construction of transportation facilities by public
entities.
A public entity shall construct any new facility to be used in
providing designated public transportation services so that the facility
is readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs. This requirement also
applies to the construction of a new station for use in intercity or
commuter rail transportation. For purposes of this section, a facility
or station is ''new'' if its construction begins (i.e., issuance of
notice to proceed) after January 25, 1992, or, in the case of intercity
or commuter rail stations, after October 7, 1991.
49 CFR 37.43 Alteration of transportation facilities by public
entities.
(a) (1) When a public entity alters an existing facility or a part of
an existing facility used in providing designated public transportation
services in a way that affects or could affect the usability of the
facility or part of the facility, the entity shall make the alterations
(or ensure that the alterations are made) in such a manner, to the
maximum extent feasible, that the altered portions of the facility are
readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs, upon the completion of such
alterations.
(2) When a public entity undertakes an alteration that affects or
could affect the usability of or access to an area of a facility
containing a primary function, the entity shall make the alteration in
such a manner that, to the maximum extent feasible, the path of travel
to the altered area and the bathrooms, telephones, and drinking
fountains serving the altered area are readily accessible to and usable
by individuals with disabilities, including individuals who use
wheelchairs, upon completion of the alterations. Provided, that
alterations to the path of travel, drinking fountains, telephones and
bathrooms are not required to be made readily accessible to and usable
by individuals with disabilities, including individuals who use
wheelchairs, if the cost and scope of doing so would be
disproportionate.
(3) The requirements of this paragraph also apply to the alteration
of existing intercity or commuter rail stations by the responsible
person for, owner of, or person in control of the station.
(4) The requirements of this section apply to any alteration which
begins (i.e., issuance of notice to proceed or work order, as
applicable) after January 25, 1992, or, in the case of intercity and
commuter rail stations, after October 7, 1991.
(b) As used in this section, the phrase to the maximum extent
feasible applies to the occasional case where the nature of an existing
facility makes it impossible to comply fully with applicable
accessibility standards through a planned alteration. In these
circumstances, the entity shall provide the maximum physical
accessibility feasible. Any altered features of the facility or portion
of the facility that can be made accessible shall be made accessible.
If providing accessibility to certain individuals with disabilities
(e.g., those who use wheelchairs) would not be feasible, the facility
shall be made accessible to individuals with other types of disabilities
(e.g., those who use crutches, those who have impaired vision or
hearing, or those who have other impairments).
(c) As used in this section, a primary function is a major activity
for which the facility is intended. Areas of transportation facilities
that involve primary functions include, but are not necessarily limited
to, ticket purchase and collection areas, passenger waiting areas, train
or bus platforms, baggage checking and return areas and employment areas
(except those involving non-occupiable spaces accessed only by ladders,
catwalks, crawl spaces, very narrow passageways, or freight
(non-passenger) elevators which are frequented only by repair
personnel).
(d) As used in this section, a ''path of travel'' includes a
continuous, unobstructed way of pedestrian passage by means of which the
altered area may be approached, entered, and exited, and which connects
the altered area with an exterior approach (including sidewalks, parking
areas, and streets), an entrance to the facility, and other parts of the
facility. The term also includes the restrooms, telephones, and
drinking fountains serving the altered area. An accessible path of
travel may include walks and sidewalks, curb ramps and other interior or
exterior pedestrian ramps, clear floor paths through corridors, waiting
areas, concourses, and other improved areas, parking access aisles,
elevators and lifts, bridges, tunnels, or other passageways between
platforms, or a combination of these and other elements.
(e) (1) Alterations made to provide an accessible path of travel to
the altered area will be deemed disproportionate to the overall
alteration when the cost exceeds 20 percent of the cost of the
alteration to the primary function area (without regard to the costs of
accessibility modifications).
(2) Costs that may be counted as expenditures required to provide an
accessible path of travel include:
(i) Costs associated with providing an accessible entrance and an
accessible route to the altered area (e.g., widening doorways and
installing ramps);
(ii) Costs associated with making restrooms accessible (e.g., grab
bars, enlarged toilet stalls, accessible faucet controls);
(iii) Costs associated with providing accessible telephones (e.g.,
relocation of phones to an accessible height, installation of
amplification devices or TDDs);
(iv) Costs associated with relocating an inaccessible drinking
fountain
(f) (1) When the cost of alterations necessary to make a path of
travel to the altered area fully accessible is disproportionate to the
cost of the overall alteration, then such areas shall be make accessible
to the maximum extent without resulting in disproportionate costs;
(2) In this situation, the public entity should give priority to
accessible elements that will provide the greatest access, in the
following order:
(i) An accessible entrance;
(ii) An accessible route to the altered area;
(iii) At least one accessible restroom for each sex or a single
unisex restroom (where there are one or more restrooms);
(iv) Accessible telephones;
(v) Accessible drinking fountains;
(vi) When possible, other accessible elements (e.g., parking,
storage, alarms).
(g) If a public entity performs a series of small alterations to the
area served by a single path of travel rather than making the
alterations as part of a single undertaking, it shall nonetheless be
responsible for providing an accessible path of travel.
(h)(1) If an area containing a primary function has been altered
without providing an accessible path of travel to that area, and
subsequent alterations of that area, or a different area on the same
path of travel, are undertaken within three years of the original
alteration, the total cost of alteration to the primary function areas
on that path of travel during the preceding three year period shall be
considered in determining whether the cost of making that path of travel
is disproportionate;
(2) For the first three years after January 26, 1992, only
alterations undertaken between that date and the date of the alteration
at issue shall be considered in determining if the cost of providing
accessible features is disproportionate to the overall cost of the
alteration.
(3) Only alterations undertaken after January 26, 1992, shall be
considered in determining if the cost of providing an accessible path of
travel is disproportionate to the overall cost of the alteration.
49 CFR 37.45 Constructon and alteration of transportation facilities by
private entities.
In constructing and altering transit facilities, private entities
shall comply with the regulations of the Department of Justice
implementing Title III of the ADA (28 CFR part 36).
49 CFR 37.47 Key stations in light and rapid rail systems.
(a) Each public entity that provides designated public transportation
by means of a light or rapid rail system shall make key stations on its
system readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs. This
requirement is separate from and in addition to requirements set forth
in 37.43 of this part.
(b) Each public entity shall determine which stations on its system
are key stations. The entity shall identify key stations, using the
planning and public participation process set forth in paragraph (d) of
this section, and taking into consideration the following criteria:
(1) Stations where passenger boardings exceed average station
passenger boardings on the rail system by at least fifteen percent,
unless such a station is close to another accessible station;
(2) Transfer stations on a rail line or between rail lines;
(3) Major interchange points with other transportation modes,
including stations connecting with major parking facilities, bus
terminals, intercity or commuter rail stations, passenger vessel
terminals, or airports;
(4) End stations, unless an end station is close to another
accessible station; and
(5) Stations serving major activity centers, such as employment or
government centers, institutions of higher education, hospitals or other
major health care facilities, or other facilities that are major trip
generators for individuals with disabilities.
(c)(1) Unless the entity receives an extension under paragraph (c)(2)
of this section, the public entity shall achieve accessibility of key
stations as soon as practicable, but in no case later than July 26,
1993.
(2) The UMTA Administrator may grant an extension of this completion
date for key station accessibility for a period up to July 26, 2020,
provided that two-thirds of key stations are made accessible by July 26,
2010. Extensions may be granted as provided in paragraph (e) of this
section.
(d) The public entity shall develop a plan for compliance for this
section. The plan shall be submitted to the appropriate UMTA regional
office by July 26, 1992. (See appendix B to this part for list.)
(1) The public entity shall consult with individuals with
disabilities affected by the plan. The public entity also shall hold at
least one public hearing on the plan and solicit comments on it. The
plan submitted to UMTA shall document this public participation,
including summaries of the consultation with individuals with
disabilities and the comments received at the hearing and during the
comment period. The plan also shall summarize the public entity's
responses to the comments and consultation.
(2) The plan shall establish milestones for the achievement of
required accessibility of key stations, consistent with the requirements
of this section.
(e) A public entity wishing to apply for an extension of the July 26,
1993, deadline for key station accessibility shall include a request for
an extension with its plan submitted to UMTA under paragraph (d) of this
section. Extensions may be granted only with respect to key stations
which need extraordinarily expensive structural changes to, or
replacement of, existing facilities (e.g., installations of elevators,
raising the entire passenger platform, or alterations of similar
magnitude and cost). Requests for extensions shall provide for
completion of key station accessibility within the time limits set forth
in paragraph (c) of this section. The UMTA Administrator may approve,
approve with conditions, modify, or disapprove any request for an
extension.
49 CFR 37.49 Designation of responsible person(s) for intercity and
commuter rail stations.
(a) The responsible person(s) designated in accordance with this
section shall bear the legal and financial responsibility for making a
key station accessible in the same proportion as determined under this
section.
(b) In the case of a station more than fifty percent of which is
owned by a public entity, the public entity is the responsible party.
(c) In the case of a station more than fifty percent of which is
owned by a private entity the persons providing commuter or intercity
rail service to the station are the responsible parties, in a proportion
equal to the percentage of all passenger boardings at the station
attributable to the service of each, over the entire period during which
the station is made accessible.
(d) In the case of a station of which no entity owns more than fifty
percent, the owners of the station (other than private entity owners)
and persons providing intercity or commuter rail service to the station
are the responsible persons.
(1) Half the responsibility for the station shall be assumed by the
owner(s) of the station. The owners shall share this responsibility in
proportion to their ownership interest in the station, over the period
during which the station is made accessible.
(2) The person(s) providing commuter or intercity rail service to the
station shall assume the other half of the responsibility. These
persons shall share this responsibility. These persons shall share this
responsibility for the station in a proportion equal to the percentage
of all passenger boardings at the station attributable to the service of
each, over the period during which the station is made accessible.
(e) Persons who must share responsibility for station accessibility
under paragraphs (c) and (d) of this section may, by agreement, allocate
their responsibility in a manner different from that provided in this
section.
49 CFR 37.51 Key stations in commuter rail systems.
(a) The responsible person(s) shall make key stations on its system
readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs. This requirement is separate
from and in addition to requirements set forth in 37.43 of this part.
(b) Each commuter authority shall determine which stations on its
system are key stations. The commuter authority shall identify key
stations, using the planning and public participation process set forth
in paragraph (d) of this section, and taking into consideration the
following criteria:
(1) Stations where passenger boardings exceed average station
passenger boardings on the rail system by at least fifteen percent,
unless such a station is close to another accessible station;
(2) Transfer stations on a rail line or between rail lines;
(3) Major interchange points with other transportation modes,
including stations connecting with major parking facilities, bus
terminals, intercity or commuter rail stations, passenger vessel
terminals, or airports;
(4) End stations, unless an end station is close to another
accessible station; and
(5) Stations serving major activity centers, such as employment or
government centers, institutions of higher education, hospitals or other
major health care facilities, or other facilities that are major trip
generators for individuals with disabilities.
(c)(1) Except as provided in this paragraph, the responsible
person(s) shall achieve accessibility of key stations as soon as
practicable, but in no case later than July 26, 1993.
(2) The UMTA Administrator may grant an extension of this deadline
for key station accessibility for a period up to July 26, 2010.
Extensions may be granted as provided in paragraph (e) of this section.
(d) The commuter authority and responsible person(s) for stations
involved shall develop a plan for compliance for this section. This
plan shall be completed and submitted to UMTA by July 26, 1992.
(1) The commuter authority and responsible person(s) shall consult
with individuals with disabilities affected by the plan. The commuter
authority and responsible person(s) also shall hold at least one public
hearing on the plan and solicit comments on it. The plan shall document
this public participation, including summaries of the consultation with
individuals with disabilities and the comments received at the hearing
and during the comment period. The plan also shall summarize the
responsible person(s) responses to the comments and consultation.
(2) The plan shall establish milestones for the achievement of
required accessibility of key stations, consistent with the requirements
of this section.
(3) The commuter authority and responsible person(s) of each key
station identified in the plan shall, by mutual agreement, designate a
project manager for the purpose of undertaking the work of making the
key station accessible.
(e) Any commuter authority and/or responsible person(s) wishing to
apply for an extension of the July 26, 1993, deadline for key station
accessibility shall include a request for extension with its plan
submitted to under paragraph (d) of this section. Extensions may be
granted only in a case where raising the entire passenger platform is
the only means available of attaining accessibility or where other
extraordinarily expensive structural changes (e.g., installations of
elevators, or alterations of magnitude and cost similar to installing an
elevator or raising the entire passenger platform) are necessary to
attain accessibility. Requests for extensions shall provide for
completion of key station accessibility within the time limits set forth
in paragraph (c) of this section. The UMTA Administrator may approve,
approve with conditions, modify, or disapprove any request for an
extension.
49 CFR 37.53 Exception for New York and Philadelphia.
(a) The following agreements entered into in New York, New York, and
Philadelphia, Pennsylvania, contain lists of key stations for the public
entities that are a party to those agreements for those service lines
identified in the agreements. The identification of key stations under
these agreements is deemed to be in compliance with the requirements of
this Subpart.
(1) Settlement Agreement by and among Eastern Paralyzed Veterans
Association, Inc., James J. Peters, Terrance Moakley, and Denise
Figueroa, individually and as representatives of the class of all
persons similarly situated (collectively, ''the EPVA class
representatives''); and Metropolitan Transportation Authority, New York
City Transit Authority, and Manhattan and Bronx Surface Transit
Operating Authority (October 4, 1984).
(2) Settlement Agreement by and between Eastern Paralyzed Veterans
Association of Pennsylvania, Inc., and James J. Peters, individually;
and Dudley R. Sykes, as Commissioner of the Philadelphia Department of
Public Property, and his successors in office and the City of
Philadelphia (collectively ''the City'') and Southeastern Pennsylvania
Transportation Authority (June 28, 1989).
(b) To comply with 37.47 (b) and (d) or 37.51 (b) and (d) of this
part, the entities named in the agreements are required to use their
public participation and planning processes only to develop and submit
to the UMTA Administrator plans for timely completion of key station
accessibilty, as provided in this subpart.
(c) In making accessible the key stations identified under the
agreements cited in this section, the entities named in the agreements
are subject to the requirements of 37.9 of this part.
49 CFR 37.55 Intercity rail station accessibility.
All intercity rail stations shall be made readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs, as soon as practicable, but in no event later than July 26,
2010. This requirement is separate from and in addition to requirements
set forth in 37.43 of this part.
49 CFR 37.57 Required cooperation.
An owner or person in control of an intercity or commuter rail
station shall provide reasonable cooperation to the responsible
person(s) for that station with respect to the efforts of the
responsible person to comply with the requirements of this subpart.
49 CFR 37.59 Differences in accessibility completion dates.
Where different completion dates for accessible stations are
established under this part for a station or portions of a station
(e.g., extensions of different periods of time for a station which
serves both rapid and commuter rail systems), accesssibility to the
following elements of the station shall be achieved by the earlier of
the completion dates involved:
(a) Common elements of the station;
(b) Portions of the facility directly serving the rail system with
the earlier completion date; and
(c) An accessible path from common elements of the station to
portions of the facility directly serving the rail system with the
earlier completion date.
49 CFR 37.61 Public transportation programs and activities in existing
facilities.
(a) A public entity shall operate a designated public transportation
program or activity conducted in an existing facility so that, when
viewed in its entirety, the program or activity is readily accessible to
and usable by individuals with disabilities.
(b) This section does not require a public entity to make structural
changes to existing facilities in order to make the facilities
accessible by individuals who use wheelchairs, unless and to the extent
required by 37.43 (with respect to alterations) or 37.47 or 37.51 of
this part (with respect to key stations). Entities shall comply with
other applicable accessibility requirements for such facilities.
(c) Public entities, with respect to facilities that, as provided in
paragraph (b) of this section, are not required to be made accessible to
individuals who use wheelchairs, are not required to provide to such
individuals services made available to the general public at such
facilities when the individuals could not utilize or benefit from the
services.
37.63 -- 37.69 (Reserved)
49 CFR 37.61 Subpart D -- Acquisition of Accessible Vehicles By Public Entities
49 CFR 37.71 Purchase or lease of new non-rail vehicles by public
entities operating fixed route systems.
(a) Except as provided elsewhere in this section, each public entity
operating a fixed route system making a solicitation after August 25,
1990, to purchase or lease a new bus or other new vehicle for use on the
system, shall ensure that the vehicle is readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs.
(b) A pubilc entity may purchase or lease a new bus that is not
readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs, if it applies for, and the
UMTA Administrator grants, a waiver as provided for in this section.
(c) Before submitting a request for such a waiver, the public entity
shall hold at least one public hearing concerning the proposed request.
(d) The UMTA Administrator may grant a request for such a waiver if
the public entity demonstrates to the UMTA Administrator's satisfaction
that --
(1) The initial solicitation for new buses made by the public entity
specified that all new buses were to be lift-equipped and were to be
otherwise accessible to and usable by individuals with disabilities;
(2) Hydraulic, electromechanical, or other lifts for such new buses
could not be provided by any qualified lift manufacturer to the
manufacturer of such new buses in sufficient time to comply with the
solicitation; and
(3) Any further delay in purchasing new buses equipped with such
necessary lifts would significantly impair transportation services in
the community served by the public entity.
(e) The public entity shall include with its waiver request a copy of
the initial solicitation and written documentation from the bus
manufacturer of its good faith efforts to obtain lifts in time to comply
with the solicitation, and a full justification for the assertion that
the delay in bus procurement needed to obtain a lift-equipped bus would
significantly impair transportation services in the community. This
documentation shall include a specific date at which the lifts could be
supplied, copies of advertisements in trade publications and inquiries
to trade associations seeking lifts, and documentation of the public
hearing.
(f) Any waiver granted by the UMTA Administrator under this section
shall be subject to the following conditions:
(1) The waiver shall apply only to the particular bus delivery to
which the waiver request pertains;
(2) The waiver shall include a termination date, which will be based
on information concerning when lifts will become available for
installation on the new buses the public entity is purchasing. Buses
delivered after this date, even though procured under a solicitation to
which a waiver applied, shall be equipped with lifts;
(3) Any bus obtained subject to the waiver shall be capable of
accepting a lift, and the public entity shall install a lift as soon as
one becomes available;
(4) Such other terms and conditions as the UMTA Administrator may
impose.
(g)(1) When the UMTA Administrator grants a waiver under this
section, he/she shall promptly notify the appropriate committees of
Congress.
(2) If the UMTA Administrator has reasonable cause to believe that a
public entity fraudulently applied for a waiver under this section, the
UMTA Administrator shall:
(i) Cancel the waiver if it is still in effect; and
(ii) Take other appropriate action.
49 CFR 37.73 Purchase or lease of used non-rail vehicles by public
entities operating fixed route systems.
(a) Except as provided elsewhere in this section, each public entity
operating a fixed route system purchasing or leasing, after August 25,
1990, a used bus or other used vehicle for use on the system, shall
ensure that the vehicle is readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs.
(b) A public entity may purchase or lease a used vehicle for use on
its fixed route system that is not readily accessible to and usable by
individuals with disabilities if, after making demonstrated good faith
efforts to obtain an accessible vehicle, it is unable to do so.
(c) Good faith efforts shall include at least the following steps:
(1) An initial solicitation for used vehicles specifying that all
used vehicles are to be lift-equipped and otherwise accessible to and
usable by individuals with disabilities, or, if an initial solicitation
is not used, a documented communication so stating;
(2) A nationwide search for accessible vehicles, involving specific
inquiries to used vehicle dealers and other transit providers; and
(3) Advertising in trade publications and contacting trade
associations.
(d) Each public entity purchasing or leasing used vehicles that are
not readily accessible to and usable by individuals with disabilities
shall retain documentation of the specific good faith efforts it made
for three years from the date the vehicles were purchased. These
records shall be made available, on request, to the UMTA Administrator
and the public.
49 CFR 37.75 Remanufacture of non-rail vehicles and purchase or lease
of remanufactured non-rail vehicles by public entities operating fixed
route systems.
(a) This section applies to any public entity operating a fixed route
system which takes one of the following actions:
(1) After August 25, 1990, remanufactures a bus or other vehicle so
as to extend its useful life for five years or more or makes a
solicitation for such remanufacturing; or
(2) Purchases or leases a bus or other vehicle which has been
remanufactured so as to extend its useful life for five years or more,
where the purchase or lease occurs after August 25, 1990, and during the
period in which the useful life of the vehicle is extended.
(b) Vehicles acquired through the actions listed in paragraph (a) of
this section shall, to the maximum extent feasible, be readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(c) For purposes of this section, it shall be considered feasible to
remanufacture a bus or other motor vehicle so as to be readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs, unless an engineering analysis
demonstrates that including accessibility features required by this part
would have a significant adverse effect on the structural integrity of
the vehicle.
(d) If a public entity operates a fixed route system, any segment of
which is included on the National Register of Historic Places, and if
making a vehicle of historic character used solely on such segment
readily accessible to and usable by individuals with disabilities would
significantly alter the historic character of such vehicle, the public
entity has only to make (or purchase or lease a remanufactured vehicle
with) those modifications to make the vehicle accessible which do not
alter the historic character of such vehicle, in consultation with the
National Register of Historic Places.
(e) A public entity operating a fixed route system as described in
paragraph (d) of this section may apply in writing to the UMTA
Administrator for a determination of the historic character of the
vehicle. The UMTA Administrator shall refer such requests to the
National Register of Historic Places, and shall rely on its advice in
making determinations of the historic character of the vehicle.
49 CFR 37.77 Purchase or lease of new non-rail vehicles by public
entities operating a demand responsive system for the general public.
(a) Except as provided in this section, a public entity operating a
demand responsive system for the general public making a solicitation
after August 25, 1990, to purchase or lease a new bus or other new
vehicle for use on the system, shall ensure that the vehicle is readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(b) If the system, when viewed in its entirety, provides a level of
service to individuals with disabilities, including individuals who use
wheelchairs, equivalent to the level of service it provides to
individuals without disabilities, it may purchase new vehicles that are
not readily accessible to and usable by individuals with disabilities.
(c) For purposes of this section, a demand responsive system, when
viewed in its entirety, shall be deemed to provide equivalent service if
the service available to individuals with disabilities, including
individuals who use wheelchairs, is provided in the most integrated
setting appropriate to the needs of the individual and is equivalent to
the service provided other individuals with respect to the following
service characteristics:
(1) Response time;
(2) Fares;
(3) Geographic area of service;
(4) Hours and days of service;
(5) Restrictions or priorities based on trip purpose;
(6) Availability of information and reservations capability; and
(7) Any constraints on capacity or service availability.
(d) A public entity receiving UMTA funds under section 18 or a public
entity in a small urbanized area which receives UMTA funds under Section
9 from a state administering agency rather than directly from UMTA,
which determines that its service to individuals with disabilities is
equivalent to that provided other persons shall, before any procurement
of an inaccessible vehicle, file with the appropriate state program
office a certificate that it provides equivalent service meeting the
standards of paragraph (c) of this section. Public entities operating
demand responsive service receiving funds under any other section of the
UMT Act shall file the certificate with the appropriate UMTA regional
office. A public entity which does not receive UMTA funds shall make
such a certificate and retain it in its files, subject to inspection on
request of UMTA. All certificates under this paragraph may be made and
filed in connection with a particular procurement or in advance of a
procurement; however, no certificate shall be valid for more than one
year. A copy of the required certificate is found in appendix C to this
part.
(e) The waiver mechanism set forth in 37.71(b)-(g) (unavailability
of lifts) of this subpart shall also be available to public entities
operating a demand responsive system for the general public.
49 CFR 37.79 Purchase or lease of new rail vehicles by public entities
operating rapid or light rail systems.
Each public entity operating a rapid or light rail system making a
solicitation after August 25, 1990, to purchase or lease a new rapid or
light rail vehicle for use on the system shall ensure that the vehicle
is readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.
49 CFR 37.81 Purchase or lease of used rail vehicles by public entities
operating rapid or light rail systems.
(a) Except as provided elsewhere in this section, each public entity
operating a rapid or light rail system which, after August 25, 1990,
purchases or leases a used rapid or light rail vehicle for use on the
system shall ensure that the vehicle is readily accessible to and usable
by individuals with disabilities, including individuals who use
wheelchairs.
(b) A public entity may purchase or lease a used rapid or light rail
vehicle for use on its rapid or light rail system that is not readily
accessible to and usable by individuals if, after making demonstrated
good faith efforts to obtain an accessible vehicle, it is unable to do
so.
(c) Good faith efforts shall include at least the following steps:
(1) The initial solicitation for used vehicles made by the public
entity specifying that all used vehicles were to be accessible to and
usable by individuals with disabilities, or, if a solicitation is not
used, a documented communication so stating;
(2) A nationwide search for accessible vehicles, involving specific
inquiries to manufacturers and other transit providers; and
(3) Advertising in trade publications and contacting trade
associations.
(d) Each public entity purchasing or leasing used rapid or light rail
vehicles that are not readily accessible to and usable by individuals
with disabilities shall retain documentation of the specific good faith
efforts it made for three years from the date the vehicles were
purchased. These records shall be made available, on request, to the
UMTA Administrator and the public.
49 CFR 37.83 Remanufacture of rail vehicles and purchase or lease of
remanufactured rail vehicles by public entities operating rapid or light
rail systems.
(a) This section applies to any public entity operating a rapid or
light rail system which takes one of the following actions:
(1) After August 25, 1990, remanufactures a light or rapid rail
vehicle so as to extend its useful life for five years or more or makes
a solicitation for such remanufacturing;
(2) Purchases or leases a light or rapid rail vehicle which has been
remanufactured so as to extend its useful life for five years or more,
where the purchase or lease occurs after August 25, 1990, and during the
period in which the useful life of the vehicle is extended.
(b) Vehicles acquired through the actions listed in paragraph (a) of
this section shall, to the maximum extent feasible, be readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(c) For purposes of this section, it shall be considered feasible to
remanufacture a rapid or light rail vehicle so as to be readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs, unless an engineering analysis
demonstrates that doing so would have a significant adverse effect on
the structural integrity of the vehicle.
(d) If a public entity operates a rapid or light rail system any
segment of which is included on the National Register of Historic Places
and if making a rapid or light rail vehicle of historic character used
solely on such segment readily accessible to and usable by individuals
with disabilities would significantly alter the historic character of
such vehicle, the public entity need only make (or purchase or lease a
remanufactured vehicle with) those modifications that do not alter the
historic character of such vehicle.
(e) A public entity operating a fixed route system as described in
paragraph (d) of this section may apply in writing to the UMTA
Administrator for a determination of the historic character of the
vehicle. The UMTA Administrator shall refer such requests to the
National Register of Historic Places and shall rely on its advice in
making a determination of the historic character of the vehicle.
49 CFR 37.85 Purchase or lease of new intercity and commuter rail cars.
Amtrak or a commuter authority making a solicitation after August 25,
1990, to purchase or lease a new intercity or commuter rail car for use
on the system shall ensure that the vehicle is readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs.
49 CFR 37.87 Purchase or lease of used intercity and commuter rail
cars.
(a) Except as provided elsewhere in this section, Amtrak or a
commuter authority purchasing or leasing a used intercity or commuter
rail car after August 25, 1990, shall ensure that the car is readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(b) Amtrak or a commuter authority may purchase or lease a used
intercity or commuter rail car that is not readily accessible to and
usable by individuals if, after making demonstrated good faith efforts
to obtain an accessible vehicle, it is unable to do so.
(c) Good faith efforts shall include at least the following steps:
(1) An initial solicitation for used vehicles specifying that all
used vehicles accessible to and usable by individuals with disabilities;
(2) A nationwide search for accessible vehicles, involving specific
inquiries to used vehicle dealers and other transit providers; and
(3) Advertising in trade publications and contacting trade
associations.
(d) Amtrak and commuter authorities purchasing or leasing used
intercity or commuter rail cars that are not readily accessible to and
usable by individuals with disabilities shall retain documentation of
the specific good faith efforts that were made for three years from the
date the cars were purchased. These records shall be made available, to
request, to the Federal Railroad Administration or UMTA Administrator,
as applicable. These records shall be made available to the public, on
request.
49 CFR 37.89 Remanufacture of intercity and commuter rail cars and
purchase or lease of remanufactured intercity and commuter rail cars.
(a) This section applies to Amtrak or a commuter authority which
takes one of the following actions:
(1) Remanufactures an intercity or commuter rail car so as to extend
its useful life for ten years or more;
(2) Purchases or leases an intercity or commuter rail car which has
been remanufactured so as to extend its useful life for ten years or
more.
(b) Intercity and commuter rail cars listed in paragraph (a) of this
section shall, to the maximum extent feasible, be readily accessible to
and usable by individuals with disabilities, including individuals who
use wheelchairs.
(c) For purposes of this section, it shall be considered feasible to
remanufacture an intercity or commuter rail car so as to be readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs, unless an engineering analysis
demonstrates that remanufacturing the car to be accessible would have a
significant adverse effect on the structural integrity of the car.
49 CFR 37.91 Wheelchair locations and food service on intercity rail
trains.
(a) As soon as practicable, but in no event later than July 26, 1995,
each person providing intercity rail service shall provide on each train
a number of spaces --
(1) To park wheelchairs (to accommodate individuals who wish to
remain in their wheelchairs) equal to not less than one half of the
number of single level rail passenger coaches in the train; and
(2) To fold and store wheelchairs (to accommodate individuals who
wish to transfer to coach seats) equal to not less than one half the
number of single level rail passenger coaches in the train.
(b) As soon as practicable, but in no event later than July 26, 2000,
each person providing intercity rail service shall provide on each train
a number of spaces --
(1) To park wheelchairs (to accommodate individuals who wish to
remain in their wheelchairs) equal to not less than the total number of
single level rail passenger coaches in the train; and
(2) To fold and store wheelchairs (to accommodate individuals who
wish to transfer to coach seats) equal to not less than the total number
of single level rail passenger coaches in the train.
(c) In complying with paragraphs (a) and (b) of this section, a
person providing intercity rail service may not provide more than two
spaces to park wheelchairs nor more than two spaces to fold and store
wheelchairs in any one coach or food service car.
(d) Unless not practicable, a person providing intercity rail
transportation shall place an accessible car adjacent to the end of a
single level dining car through which an individual who uses a
wheelchair may enter.
(e) On any train in which either a single level or bi-level dining
car is used to provide food service, a person providing intercity rail
service shall provide appropriate aids and services to ensure that
equivalent food service is available to individuals with disabilities,
including individuals who use wheelchairs, and to passengers traveling
with such individuals. Appropriate auxiliary aids and services include
providing a hard surface on which to eat.
(f) This section does not require the provision of securement devices
on intercity rail cars.
49 CFR 37.93 One car per train rule.
(a) The definition of accessible for purposes of meeting the one car
per train rule is spelled out in the applicable subpart for each
transportation system type in part 38 of this title.
(b) Each person providing intercity rail service and each commuter
rail authority shall ensure that, as soon as practicable, but in no
event later than July 26, 1995, that each train has one car that is
readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.
(c) Each public entity providing light or rapid rail service shall
ensure that each train, consisting of two or more vehicles, includes at
least one car that is readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs, as soon as
practicable but in no case later than July 25, 1995.
37.95 Ferries and other passenger vessels operated by public
entities. (Reserved)
37.97 -- 37.99 (Reserved)
49 CFR 37.93 Subpart E -- Acquisition of Accessible Vehicles By Private Entities
49 CFR 37.101 Purchase or lease of vehicles by private entities not
primarily engaged in the business of transporting people.
(a) Application. This section applies to all purchases or leases of
vehicles by private entities which are not primarily engaged in the
business of transporting people, in which a solicitation for the vehicle
is made after August 25, 1990.
(b) Fixed Route System. Vehicle Capacity Over 16. If the entity
operates a fixed route system and purchases or leases a vehicle with a
seating capacity of over 16 passengers (including the driver) for use on
the system, it shall ensure that the vehicle is readily accessible to
and usable by individuals with disabilities, including individuals who
use wheelchairs.
(c) Fixed Route System. Vehicle Capacity of 16 or Fewer. If the
entity operates a fixed route system and purchases or leases a vehicle
with a seating capacity of 16 or fewer passengers (including the driver)
for use on the system, it shall ensure that the vehicle is readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs, unless the system, when viewed in its
entirety, meets the standard for equivalent service of 37.105 of this
part.
(d) Demand Responsive System, Vehicle Capacity Over 16. If the
entity operates a demand responsive system, and purchases or leases a
vehicle with a seating capacity of over 16 passengers (including the
driver) for use on the system, it shall ensure that the vehicle is
readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs, unless the system, when
viewed in its entirety, meets the standard for equivalent service of
37.105 of this part.
49 CFR 37.103 Purchase or lease of new non-rail vehicles by private
entities primarily engaged in the business of transporting people.
(a) Application. This section applies to all acquisitions of new
vehicles by private entities which are primarily engaged in the business
of transporting people and whose operations affect commerce, in which a
solicitation for the vehicle is made (except as provided in paragraph
(d) of this section) after August 25, 1990.
(b) Fixed Route Systems. If the entity operates a fixed route
system, and purchases or leases a new vehicle other than an automobile,
a van with a seating capacity of less than eight persons (including the
driver), or an over-the-road bus, it shall ensure that the vehicle is
readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.
(c) Demand Responsive Systems. If the entity operates a demand
responsive system, and purchases or leases a new vehicle other than an
automobile, a van with a seating capacity of less than eight persons
(including the driver), or an over-the-road bus, it shall ensure that
the vehicle is readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs, unless the
system, when viewed in its entirety, meets the standard for equivalent
service of 37.105 of this part.
(d) Vans with a Capacity of Fewer than 8 Persons. If the entity
operates either a fixed route or demand responsive system, and purchases
or leases a new van with a seating capacity of fewer than eight persons
including the driver (the solicitation for the vehicle being made after
February 25, 1992), the entity shall ensure that the vehicle is readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs, unless the system, when viewed in its
entirety, meets the standard for equivalent service of 37.105 of this
part.
49 CFR 37.105 Equivalent service standard.
For purposes of 37.101 and 37.103 of this part, a fixed route
system or demand responsive system, when viewed in its entirety, shall
be deemed to provide equivalent service if the service available to
individuals with disabilities, including individuals who use
wheelchairs, is provided in the most integrated setting appropriate to
the needs of the individual and is equivalent to the service provided
other individuals with respect to the following service characteristics:
(a) (1) Schedules/headways (if the system is fixed route);
(2) Response time (if the system is demand responsive);
(b) Fares;
(c) Geographic area of service;
(d) Hours and days of service;
(e) Availability of information;
(f) Reservations capability (if the system is demand responsive);
(g) Any constraints on capacity or service availability;
(h) Restrictions priorities based on trip purpose (if the system is
demand responsive).
49 CFR 37.107 Acquisition of passenger rail cars by private entities
primarily engaged in the business of transporting people.
(a) A private entity which is primarily engaged in the business of
transporting people and whose operations affect commerce, which makes a
solicitation after February 25, 1992, to purchase or lease a new rail
passenger car to be used in providing specified public transportation,
shall ensure that the car is readily accessible to, and usable by,
individuals with disabilities, including individuals who use
wheelchairs. The accessibility standards in part 38 of this title which
apply depend upon the type of service in which the car will be used.
(b) Except as provided in paragraph (c) of this section, a private
entity which is primarily engaged in transporting people and whose
operations affect commerce, which remanufactures a rail passenger car to
be used in providing specified public transportation to extend its
useful life for ten years or more, or purchases or leases such a
remanufactured rail car, shall ensure that the rail car, to the maximum
extent feasible, is made readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs. For
purposes of this paragraph, it shall be considered feasible to
remanufacture a rail passenger car to be readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs, unless an engineering analysis demonstrates that doing so
would have a significant adverse effect on the structural integrity of
the car.
(c) Compliance with paragraph (b) of this section is not required to
the extent that it would significantly alter the historic or antiquated
character of a historic or antiquated rail passenger car, or a rail
station served exclusively by such cars, or would result in the
violation of any rule, regulation, standard or order issued by the
Secretary under the Federal Railroad Safety Act of 1970. For purposes
of this section, a historic or antiquated rail passenger car means a
rail passenger car --
(1) Which is not less than 30 years old at the time of its use for
transporting individuals;
(2) The manufacturer of which is no longer in the business of
manufacturing rail passenger cars; and
(3) Which --
(i) Has a consequential association with events or persons
significant to the past; or
(ii) Embodies, or is being restored to embody, the distinctive
characteristics of a type of rail passenger car used in the past, or to
represent a time period which has passed.
37.109 Ferries and other passenger vessels operated by private
entities. (Reserved)
37.111 -- 37.119 (Reserved)
49 CFR 37.107 Subpart F -- Paratransit as a Complement to Fixed Route Service
49 CFR 37.121 Requirement for comparable complementary paratransit
service.
(a) Except as provided in paragraph (c) of this section, each public
entity operating a fixed route system shall provide paratransit or other
special service to individuals with disabilities that is comparable to
the level of service provided to individuals without disabilities who
use the fixed route system.
(b) To be deemed comparable to fixed route service, a complementary
paratransit system shall meet the requirements of 37.123-37.133 of
this subpart. The requirement to comply with 37.131 may be modified in
accordance with the provisions of this subpart relating to undue
financial burden.
(c) Requirements for complementary paratransit do not apply to
commuter bus, commuter rail, or intercity rail systems.
49 CFR 37.123 ADA paratransit eligibility: Standards.
(a) Public entities required by 37.121 of this subpart to provide
complementary paratransit service shall provide the service to the ADA
paratransit eligible individuals described in paragraph (e) of this
section.
(b) If an individual meets the eligibility criteria of this section
with respect to some trips but not others, the individual shall be ADA
paratransit eligible only for those trips for which he or she meets the
criteria.
(c) Individuals may be ADA paratransit eligible on the basis of a
permanent or temporary disability.
(d) Public entities may provide complementary paratransit service to
persons other than ADA paratransit eligible individuals. However, only
the cost of service to ADA paratransit eligible individuals may be
considered in a public entity's request for an undue financial burden
waiver under 37.151-37.155 of this part.
(e) The following individuals are ADA paratransit eligible:
(1) Any individual with a disability who is unable, as the result of
a physical or mental impairment (including a vision impairment), and
without the assistance of another individual (except the operator of a
wheelchair lift or other boarding assistance device), to board, ride, or
disembark from any vehicle on the system which is readily accessible to
and usable individuals with disabilities.
(2) Any individual with a disability who needs the assistance of a
wheelchair lift or other boarding assistance device and is able, with
such assistance, to board, ride and disembark from any vehicle which is
readily accessible to and usable by individuals with disabilities if the
individual wants to travel on a route on the system during the hours of
operation of the system at a time, or within a reasonable period of such
time, when such a vehicle is not being used to provide designated public
transportation on the route.
(i) An individual is eligible under this paragraph with respect to
travel on an otherwise accessible route on which the boarding or
disembarking location which the individual would use is one at which
boarding or disembarking from the vehicle is precluded as provided in
37.167(g) of this part.
(ii) An individual using a common wheelchair is eligible under this
paragraph if the individual's wheelchair cannot be accommodated on an
existing vehicle (e.g., because the vehicle's lift does not meet the
standards of part 38 of this title), even if that vehicle is accessible
to other individuals with disabilities and their mobility wheelchairs.
(iii) With respect to rail systems, an individual is eligible under
this paragraph if the individual could use an accessible rail system,
but --
(A) there is not yet one accessible car per train on the system; or
(B) key stations have not yet been made accessible.
(3) Any individual with a disability who has a specific
impairment-related condition which prevents such individual from
traveling to a boarding location or from a disembarking location on such
system.
(i) Only a specific impairment-related condition which prevents the
individual from traveling to a boarding location or from a disembarking
location is a basis for eligibility under this paragraph. A condition
which makes traveling to boarding location or from a disembarking
location more difficult for a person with a specific impairment-related
condition than for an individual who does not have the condition, but
does not prevent the travel, is not a basis for eligibility under this
paragraph.
(ii) Architectural barriers not under the control of the public
entity providing fixed route service and environmental barriers (e.g.,
distance, terrain, weather) do not, standing alone, form a basis for
eligibility under this paragraph. The interaction of such barriers with
an individual's specific impairment-related condition may form a basis
for eligibility under this paragraph, if the effect is to prevent the
individual from traveling to a boarding location or from a disembarking
location.
(f) Individuals accompanying an ADA paratransit eligible individual
shall be provided service as follows:
(1) One other individual accompanying the ADA paratransit eligible
individual shall be provided service --
(i) If the ADA paratransit eligible individual is traveling with a
personal care attendant, the entity shall provide service to one other
individual in addition to the attendant who is accompanying the eligible
individual;
(ii) A family member or friend is regarded as a person accompanying
the eligible individual, and not as a personal care attendant, unless
the family member or friend registered is acting in the capacity of a
personal care attendant;
(2) Additional individuals accompanying the ADA paratransit eligible
individual shall be provided service, provided that space is available
for them on the paratransit vehicle carrying the ADA paratransit
eligible individual and that transportation of the additional
individuals will not result in a denial of service to ADA paratransit
eligible individuals;
(3) In order to be considered as ''accompanying'' the eligible
individual for purposes of this paragraph (f), the other individual(s)
shall have the same origin and destination as the eligible individual.
49 CFR 37.125 ADA paratransit eligibility: Process.
Each public entity required to provide complementary paratransit
service by 37.121 of this part shall establish a process for
determining ADA paratransit eligibility.
(a) The process shall strictly limit ADA paratransit eligibility to
individuals specified in 37.123 of this part.
(b) All information about the process, materials necessary to apply
for eligibility, and notices and determinations concerning eligibility
shall be made available in accessible formats, upon request.
(c) If, by a date 21 days following the submission of a complete
application, the entity has not made a determination of eligibility, the
applicant shall be treated as eligible and provided service until and
unless the entity denies the application.
(d) The entity's determination concerning eligibility shall be in
writing. If the determination is that the individual is ineligible, the
determination shall state the reasons for the finding.
(e) The public entity shall provide documentation to each eligible
individual stating that he or she is ''ADA Paratransit Eligible.'' The
documentation shall include the name of the eligible individual, the
name of the transit provider, the telephone number of the entity's
paratransit coordinator, an expiration date for eligibility, and any
conditions or limitations on the individual's eligibility including the
use of a personal care attendant.
(f) The entity may require recertification of the eligibility of ADA
paratransit eligible individuals at reasonable intervals.
(g) The entity shall establish an administrative appeal process
through which individuals who are denied eligibility can obtain review
of the denial.
(1) The entity may require that an appeal be filed within 60 days of
the denial of an individual's application.
(2) The process shall include an opportunity to be heard and to
present information and arguments, separation of functions (i.e., a
decision by a person not involved with the initial decision to deny
eligibility), and written notification of the decision, and the reasons
for it.
(3) The entity is not required to provide paratransit service to the
individual pending the determination on appeal. However, if the entity
has not made a decision within 30 days of the completion of the appeal
process, the entity shall provide paratransit service from that time
until and unless a decision to deny the appeal is issued.
(h) The entity may establish an administrative process to suspend,
for a reasonable period of time, the provision of complementary
paratransit service to ADA eligible individuals who establish a pattern
or practice of missing scheduled trips.
(1) Trips missed by the individual for reasons beyond his or her
control (including, but not limited to, trips which are missed due to
operator error) shall not be a basis for determining that such a pattern
or practice exists.
(2) Before suspending service, the entity shall take the following
steps:
(i) Notify the individual in writing that the entity proposes to
suspend service, citing with specificity the basis of the proposed
suspension and setting forth the proposed sanction.
(ii) Provide the individual an opportunity to be heard and to present
information and arguments;
(iii) Provide the individual with written notification of the
decision and the reasons for it.
(3) The appeals process of paragraph (g) of this section is available
to an individual on whom sanctions have been imposed under this
paragraph. The sanction is stayed pending the outcome of the appeal.
(i) In applications for ADA paratransit eligibility, the entity may
require the applicant to indicate whether or not he or she travels with
a personal care attendant.
49 CFR 37.127 Complementary paratransit service for visitors.
(a) Each public entity required to provide complementary paratransit
service under 37.121 of this part shall make the service available to
visitors as provided in this section.
(b) For purposes of this section, a visitor is an individual with
disabilities who does not reside in the jurisdiction(s) served by the
public entity or other entities with which the public entity provides
coordinated complementary paratransit service within a region.
(c) Each public entity shall treat as eligible for its complementary
paratransit service all visitors who present documentation that they are
ADA paratransit eligible, under the criteria of 37.125 of this part, in
the jurisdiction in which they reside.
(d) With respect to visitors with disabilities who do not present
such documentation, the public entity may require the documentation of
the individual's place of residence and, if the individual's disability
is not apparent, of his or her disability. The entity shall provide
paratransit service to individuals with disabilities who qualify as
visitors under paragraph (b) of this section. The entity shall accept a
certification by such individuals that they are unable to use fixed
route transit.
(e) A public entity is not required to provide service to a visitor
for more than 21 days from the date of the first paratransit trip used
by the visitor. The entity may require that such an individual, in
order to receive service beyond this period, apply for eligibility under
the process provided for in 37.125 of this part.
49 CFR 37.129 Types of service.
(a) Except as provided in this section, complementary paratransit
service for ADA paratransit eligible persons shall be
origin-to-destination service.
(b) Complementary paratransit service for ADA paratransit eligible
persons described in 37.123(e)(2) of this part may also be provided by
on-call bus service or paratransit feeder service to an accessible fixed
route, where such service enables the individual to use the fixed route
bus system for his or her trip.
(c) Complementary paratransit service for ADA eligible persons
described in 37.123(e)(3) of this part also may be provided by
paratransit feeder service to and/or from an accessible fixed route.
49 CFR 37.131 Service criteria for complementary paratransit.
The following service criteria apply to complementary paratransit
required by 37.121 of this part.
(a) Service Area -- (1) Bus. (i) The entity shall provide
complementary paratransit service to origins and destinations within
corridors with a width of three-fourths of a mile on each side of each
fixed route. The corridor shall include an area with a three-fourths of
a mile radius at the ends of each fixed route.
(ii) Within the core service area, the entity also shall provide
service to small areas not inside any of the corridors but which are
surrounded by corridors.
(iii) Outside the core service area, the entity may designate
corridors with widths from three fourths of a mile up to one and one
half miles on each side of a fixed route, based on local circumstances.
(iv) For purposes of this paragraph, the core service area is that
area in which corridors with a width of three-fourths of a mile on each
side of each fixed route merge together such that, with few and small
exceptions, all origins and destinations within the area would be
served.
(2) Rail. (i) For rail systems, the service area shall consist of a
circle with a radius of 3/4 of a mile around each station.
(ii) At end stations and other stations in outlying areas, the entity
may designate circles with radii of up to 1 1/2 miles as part of its
service area, based on local circumstances.
(3) Jurisdictional Boundaries. Notwithstanding any other provision
of this paragraph, an entity is not required to provide paratransit
service in an area outside the boundaries of the jurisdiction(s) in
which it operates, if the entity does not have legal authority to
operate in that area. The entity shall take all practicable steps to
provide paratransit service to any part of its service area.
(b) Response Time. The entity shall schedule and provide paratransit
service to any ADA paratransit eligible person at any requested time on
a particular day in response to a request for service made the previous
day. Reservations may be taken by reservation agents or by mechanical
means.
(1) The entity shall make reservation service available during at
least all normal business hours of the entity's administrative offices,
as well as during times, comparable to normal business hours, on a day
when the entity's offices are not open before a service day.
(2) The entity may negotiate pickup times with the individual, but
the entity shall not require an ADA paratransit eligible individual to
schedule a trip to begin more than one hour before or after the
individual's desired departure time.
(3) The entity may use real-time scheduling in providing
complementary paratransit service.
(4) The entity shall permit advance reservations to be made up to 14
days in advance of an ADA paratransit eligible individual's desired
trip.
(c) Fares. The fare for a trip charged to an ADA paratransit
eligible user of the complementary paratransit service shall not exceed
twice the fare that would be charged to an individual paying full fare
(i.e., without regard to discounts) for a trip of similar length, at a
similar time of day, on the entity's fixed route system.
(1) In calculating the full fare that would be paid by an individual
using the fixed route system, the entity may include transfer and
premium charges applicable to a trip of similar length, at a similar
time of day, on the fixed route system.
(2) The fares for individuals accompanying ADA paratransit eligible
individuals, who are provided service under 37.123 (f) of this part,
shall be the same as for the ADA paratransit eligible individuals they
are accompanying.
(3) A personal care attendant shall not be charged for complementary
paratransit service.
(4) The entity may charge a fare higher than otherwise permitted by
this paragraph to a social service agency or other organization for
agency trips (i.e., trips guaranteed to the organization).
(d) Trip Purpose Restrictions. The entity shall not impose
restrictions or priorities based on trip purpose.
(e) Hours and Days of Service. The complementary paratransit service
shall be available throughout the same hours and days as the entity's
fixed route service.
(f) Capacity Constraints. The entity shall not limit the
availability of complementary paratransit service to ADA paratransit
eligible individuals by any of the following:
(1) Restrictions on the number of trips an individual will be
provided;
(2) Waiting lists for access to the service; or
(3) Any operational pattern or practice that significantly limits the
availability of service to ADA paratransit eligible persons.
(i) Such patterns or practices include, but are not limited to, the
following:
(A) Substantial numbers of significantly untimely pickups for initial
or return trips;
(B) Substantial numbers of trip denials or missed trips;
(C) Substantial numbers of trips with excessive trip lengths.
(ii) Operational problems attributable to causes beyond the control
of the entity (including, but not limited to, weather or traffic
conditions affecting all vehicular traffic that were not anticipated at
the time a trip was scheduled) shall not be a basis for determining that
such a pattern or practice exists.
(g) Additional Service. Public entities may provide complementary
paratransit service to ADA paratransit eligible individuals exceeding
that provided for in this section. However, only the cost of service
provided for in this section may be considered in a public entity's
request for an undue financial burden waiver under 37.151-37.155 of
this part.
49 CFR 37.133 Subscription service.
(a) This part does not prohibit the use of subscription service by
public entities as part of a complementary paratransit system, subject
to the limitations in this section.
(b) Subscription service may not absorb more than fifty percent of
the number of trips available at a given time of day, unless there is
non-subscription capacity.
(c) Notwithstanding any other provision of this part, the entity may
establish waiting lists or other capacity constraints and trip purpose
restrictions or priorities for participation in the subscription service
only.
49 CFR 37.135 Submission of paratransit plan.
(a) General. Each public entity operating fixed route transportation
service, which is required by 37.121 to provide complementary
paratransit service, shall develop a paratransit plan.
(b) Initial Submission. Except as provided in 37.141 of this part,
each entity shall submit its initial plan for compliance with the
complementary paratransit service provision by January 26, 1992, to the
appropriate location identified in paragraph (f) of this section.
(c) Annual Updates. Each entity shall submit an annual update to the
plan on January 26 of each succeeding year.
(d) Phase-in of Implementation. Each plan shall provide full
compliance by no later than January 26, 1997, unless the entity has
received a waiver based on undue financial burden. If the date for full
compliance specified in the plan is after January 26, 1993, the plan
shall include milestones, providing for measured, proportional progress
toward full compliance.
(e) Plan Implementation. Each entity shall begin implementation of
its plan on January 26, 1992.
(f) Submission Locations. An entity shall submit its plan to one of
the following offices, as appropriate:
(1) The individual state administering agency, if it is --
(i) A section 18 recipient;
(ii) A small urbanized area recipient of section 9 funds administered
by the State;
(iii) A participant in a coordinated plan, in which all of the
participating entities are eligible to submit their plans to the State;
or
(2) The UMTA Regional Office (as listed in Appendix B to this part)
for all other entities required to submit a paratransit plan. This
includes an UMTA recipient under section 9 of the UMT Act; entities
submitting a joint plan (unless they meet the requirements of paragraph
(f)(1)(iii) of this section), and a public entity not an UMT Act
recipient.
49 CFR 37.137 Paratransit plan development.
(a) Survey of existing services. Each submitting entity shall survey
the area to be covered by the plan to identify any person or entity
(public or private) which provides a paratransit or other special
transportation service for ADA paratransit eligible individuals in the
service area to which the plan applies.
(b) Public participation. Each submitting entity shall ensure public
participation in the development of its paratransit plan, including at
least the following:
(1) Outreach. Each submitting entity shall solicit participation in
the development of its plan by the widest range of persons anticipated
to use its paratransit service. Each entity shall develop contacts,
mailing lists and other appropriate means for notification of
opportunities to participate in the development of the paratransit plan;
(2) Consultation with individuals with disabilities. Each entity
shall contact individuals with disabilities and groups representing them
in the community. Consultation shall begin at an early stage in the
plan development and should involve persons with disabilities in all
phases of plan development. All documents and other information
concerning the planning procedure and the provision of service shall be
available, upon request, to members of the public, except where
disclosure would be an unwarranted invasion of personal privacy;
(3) Opportunity for public comment. The submitting entity shall make
its plan available for review before the plan is finalized. In making
the plan available for public review, the entity shall ensure that the
plan is available upon request in accessible formats;
(4) Public hearing. The entity shall sponsor at a minimum one public
hearing and shall provide adequate notice of the hearing, including
advertisement in appropriate media, such as newspapers of general and
special interest circulation and radio announcements; and
(5) Special requirements. If the entity intends to phase-in its
paratransit service over a multi-year period, or request a waiver based
on undue financial burden, the public hearing shall afford the
opportunity for interested citizens to express their views concerning
the phase-in, the request, and which service criteria may be delayed in
implementation.
(c) Ongoing requirement. The entity shall create an ongoing
mechanism for the participation of individuals with disabilities in the
continued development and assessment of services to persons with
disabilities. This includes, but is not limited to, the development of
the initial plan, any request for an undue financial burden waiver, and
each annual submission.
49 CFR 37.139 Plan contents.
Each plan shall contain the following information:
(a) Identification of the entity or entities submitting the plan,
specifying for each --
(1) Name and address; and
(2) Contact person for the plan, with telephone number and facsimile
telephone number (FAX), if applicable.
(b) A description of the fixed route system as of January 26, 1992
(or subsequent year for annual updates), including --
(1) A description of the service area, route structure, days and
hours of service, fare structure, and population served. This includes
maps and tables, if appropriate;
(2) The total number of vehicles (bus, van, or rail) operated in
fixed route service (including contracted service), and percentage of
accessible vehicles and percentage of routes accessible to and usable by
persons with disabilities, including persons who use wheelchairs;
(3) Any other information about the fixed route service that is
relevant to establishing the basis for comparability of fixed route and
paratransit service.
(c) A description of existing paratransit services, including:
(1) An inventory of service provided by the public entity submitting
the plan;
(2) An inventory of service provided by other agencies or
organizations, which may in whole or in part be used to meet the
requirement for complementary paratransit service; and
(3) A description of the available paratransit services in paragraphs
(c)(2) and (c)(3) of this section as they relate to the service criteria
described in 37.131 of this part of service area, response time, fares,
restrictions on trip purpose, hours and days of service, and capacity
constraints; and to the requirements of ADA paratransit eligibility.
(d) A description of the plan to provide comparable paratransit,
including:
(1) An estimate of demand for comparable paratransit service by ADA
eligible individuals and a brief description of the demand estimation
methodology used;
(2) An analysis of differences between the paratransit service
currently provided and what is required under this part by the
entity(ies) submitting the plan and other entities, as described in
paragraph (c) of this section;
(3) A brief description of planned modifications to existing
paratransit and fixed route service and the new paratransit service
planned to comply with the ADA paratransit service criteria;
(4) A description of the planned comparable paratransit service as it
relates to each of the service criteria described in 37.131 of this
part -- service area, absence of restrictions or priorities based on
trip purpose, response time, fares, hours and days of service, and lack
of capacity constraints. If the paratransit plan is to be phased in,
this paragraph shall be coordinated with the information being provided
in paragraphs (d)(5) and (d)(6) of this paragraph;
(5) A timetable for implementing comparable paratransit service, with
a specific date indicating when the planned service will be completely
operational. In no case may full implementation be completed later than
January 26, 1997. The plan shall include milestones for implementing
phases of the plan, with progress that can be objectively measured
yearly;
(6) A budget for comparable paratransit service, including capital
and operating expenditures over five years.
(e) A description of the process used to certify individuals with
disabilities as ADA paratransit eligible. At a minimum, this must
include --
(1) A description of the application and certification process,
including --
(i) The availability of information about the process and application
materials inaccessible formats;
(ii) The process for determining eligibility according to the
provisions of 37.123-37.125 of this part and notifying individuals of
the determination made;
(iii) The entity's system and timetable for processing applications
and allowing presumptive eligibility; and
(iv) The documentation given to eligible individuals.
(2) A description of the administrative appeals process for
individuals denied eligibility.
(3) A policy for visitors, consistent with 37.127 of this part.
(f) Description of the public participation process including --
(1) Notice given of opportunity for public comment, the date(s) of
completed public hearing(s), availability of the plan in accessible
formats, outreach efforts, and consultation with persons with
disabilities.
(2) A summary of significant issues raised during the public comment
period, along with a response to significant comments and discussion of
how the issues were resolved.
(g) Efforts to coordinate service with other entities subject to the
complementary paratransit requirements of this part which have
overlapping or contiguous service areas or jurisdictions.
(h) The following endorsements or certifications:
(1) A resolution adopted by the board of the entity authorizing the
plan, as submitted. If more than one entity is submitting the plan
there must be an authorizing resolution from each board. If the entity
does not function with a board, a statement shall be submitted by the
entity's chief executive;
(2) In urbanized areas, certification by the Metropolitan Planning
Organization (MPO) that it has reviewed the plan and that the plan is in
conformance with the transportation plan developed under the Urban Mass
Transportation/Federal Highway Administration joint planning regulation
(49 CFR part 613 and 23 CFR part 450). In a service area which is
covered by more than one MPO, each applicable MPO shall certify
conformity of the entity's plan. The provisions of this paragraph do
not apply to non-UMTA recipients;
(3) A certification that the survey of existing paratransit service
was conducted as required in 37.137(a) of this part;
(4) To the extent service provided by other entities is included in
the entity's plan for comparable paratransit service, the entity must
certify that:
(i) ADA paratransit eligible individuals have access to the service;
(ii) The service is provided in the manner represented; and
(iii) Efforts will be made to coordinate the provision of paratransit
service by other providers.
(i) A request for a waiver based on undue financial burden, if
applicable. The waiver request should include information sufficient
for UMTA to consider the factors in 37.155 of this part. If a request
for an undue financial burden waiver is made, the plan must include a
description of additional paratransit services that would be provided to
achieve full compliance with the requirement for comparable paratransit
in the event the waiver is not granted, and the timetable for the
implementation of these additional services.
(j) Annual plan updates. (1) The annual plan updates submitted
January 26, 1993, and annually thereafter, shall include information
necessary to update the information requirements of this section.
Information submitted annually must include all significant changes and
revisions to the timetable for implementation;
(2) If the paratransit service is being phased in over more than one
year, the entity must demonstrate that the milestones identified in the
current paratransit plans have been achieved. If the milestones have
not been achieved, the plan must explain any slippage and what actions
are being taken to compensate for the slippage.
(3) The annual plan must describe specifically the means used to
comply with the public participation requirements, as described in
37.137 of this part.
49 CFR 37.141 Requirements for a joint paratransit plan.
(a) Two or more entities with overlapping or contiguous service areas
or jurisdictions may develop and submit a joint plan providing for
coordinated paratransit service. Joint plans shall identify the
participating entities and indicate their commitment to participate in
the plan.
(b) To the maximum extent feasible, all elements of the coordinated
plan shall be submitted on January 26, 1992. If a coordinated plan is
not completed by January 26, 1992, those entities intending to
coordinate paratransit service must submit a general statement declaring
their intention to provide coordinated service and each element of the
plan specified in 37.139 to the extent practicable. In addition, the
plan must include the following certifications from each entity involved
in the coordination effort:
(1) A certification that the entity is committed to providing ADA
paratransit service as part of a coordinated plan.
(2) A certification from each public entity participating in the plan
that it will maintain current levels of paratransit service until the
coordinated plan goes into effect.
(c) Entities submitting the above certifications and plan elements in
lieu of a completed plan on January 26, 1992, must submit a complete
plan by July 26, 1992.
(d) Filing of an individual plan does not preclude an entity from
cooperating with other entities in the development or implementation of
a joint plan. An entity wishing to join with other entities after its
initial submission may do so by meeting the filing requirements of this
section.
49 CFR 37.143 Paratransit plan implementation.
(a) Each entity shall begin implementation of its complementary
paratransit plan, pending notice from UMTA. The implementation of the
plan shall be consistent with the terms of the plan, including any
specified phase-in period.
(b) If the plan contains a request for a wavier based on undue
financial burden, the entity shall begin implementation of its plan,
pending a determination on its waiver request.
49 CFR 37.145 State comment on plans.
Each state required to receive plans under 37.135 of this part
shall:
(a) Ensure that all applicable section 18 and section 9 recipients
have submitted plans.
(b) Certify to UMTA that all plans have been received.
(c) Forward the required certification with comments on each plan to
UMTA. The plans, with comments, shall be submitted to UMTA no later
than April 1, 1992, for the first year and April 1 annually thereafter.
(d) The State shall develop comments to on each plan, responding to
the following points:
(1) Was the plan filed on time?
(2) Does the plan appear reasonable?
(3) Are there circumstances that bear on the ability of the grantee
to carry out the plan as represented? If yes, please elaborate.
(4) Is the plan consistent with statewide planning activities?
(5) Are the necessary anticipated financial and capital resources
identified in the plan accurately estimated?
49 CFR 37.147 Considerations during UMTA review.
In reviewing each plan, at a minimum UMTA will consider the
following:
(a) Whether the plan was filed on time;
(b) Comments submitted by the state, if applicable;
(c) Whether the plan contains responsive elements for each component
required under 37.139 of this part;
(d) Whether the plan, when viewed in its entirety, provides for
paratransit service comparable to the entity's fixed route service;
(e) Whether the entity complied with the public participation efforts
required by this part; and
(f) The extent to which efforts were made to coordinate with other
public entities with overlapping or contiguous service areas or
jurisdictions.
49 CFR 37.149 Disapproved plans.
(a) If a plan is disapproved in whole or in part, UMTA will specify
which provisions are disapproved. Each entity shall amend its plan
consistent with this information and resubmit the plan to the
appropriate UMTA Regional Office within 90 days of receipt of the
disapproval letter.
(b) Each entity revising its plan shall continue to comply with the
public participation requirements applicable to the initial development
of the plan (set out in 37.137 of this part).
49 CFR 37.151 Waiver for undue financial burden.
If compliance with the service criteria of 37.131 of this part
creates an undue financial burden, an entity may request a waiver from
all or some of the provisions if the entity has complied with the public
participation requirements in 37.137 of this Part and if the following
conditions apply:
(a) At the time of submission of the initial plan on January 26, 1992
--
(1) The entity determines that it cannot meet all of the service
criteria by January 26, 1997; or
(2) The entity determines that it cannot make measured progress
toward compliance in any year before full compliance is required. For
purposes of this part, measured progress means implementing milestones
as scheduled, such as incorporating an additional paratransit service
criterion or improving an aspect of a specific service criterion.
(b) At the time of its annual plan update submission, if the entity
believes that circumstances have changed since its last submission, and
it is no longer able to comply by January 26, 1997, or make measured
progress in any year before 1997, as described in paragraph (a)(2) of
this section.
49 CFR 37.153 UMTA waiver determination.
(a) The Administrator will determine whether to grant a waiver for
undue financial burden on a case-by-case basis, after considering the
factors identified in 37.155 of this part and the information
accompanying the request. If necessary, the Administrator will return
the application with a request for additional information.
(b) Any waiver granted will be for a limited and specified period of
time.
(c) If the Administrator grants the applicant a waiver, the
Administrator will do one of the following:
(1) Require the public entity to provide complementary paratransit to
the extent if can do so without incurring an undue financial burden.
The entity shall make changes in its plan that the Administrator
determines are appropriate to maximize the complementary paratransit
service that is provided to ADA paratransit eligible individuals. When
making changes to its plan, the entity shall use the public
participation process specified for plan development and shall consider
first a reduction in number of trips provided to each ADA paratransit
eligible person per month, while attempting to meet all other service
criteria.
(2) Require the public entity to provide basic complementary
paratransit services to all ADA paratransit eligible individuals, even
if doing so would cause the public entity to incur an undue financial
burden. Basic complementary paratransit service in corridors defined as
provided in 37.131(a) along the public entity's key routes during core
service hours.
(i) For purposes of this section, key routes are defined as routes
along which there is service at least hourly throughout the day.
(ii) For purposes of this section, core service hours encompass at
least peak periods, as these periods are defined locally for fixed route
service, consistent with industry practice.
(3) If the Administrator determines that the public entity will incur
an undue financial burden as the result of providing basic complementary
paratransit service, such that it is infeasible for the entity to
provide basic complementary paratransit service, the Administrator shall
require the public entity to coordinate with other available providers
of demand responsive service in the area served by the public entity to
maximize the service to ADA paratransit eligible individuals to the
maximum extent feasible.
49 CFR 37.155 Factors in decision to grant an undue financial burden
waiver.
(a) In making an undue financial burden determination, the UMTA
Administrator will consider the following factors:
(1) Effects on current fixed route service, including reallocation of
accessible fixed route vehicles and potential reduction in service,
measured by service miles;
(2) Average number of trips made by the entity's general population,
on a per capita basis, compared with the average number of trips to be
made by registered ADA paratransit eligible persons, on a per capita
basis;
(3) Reductions in other services, including other special services;
(4) Increases in fares;
(5) Resources available to implement complementary paratransit
service over the period covered by the plan;
(6) Percentage of budget needed to implement the plan, both as a
percentage of operating budget and a percentage of entire budget;
(7) The current level of accessible service, both fixed route and
paratransit;
(8) Cooperation/coordination among area transportation providers;
(9) Evidence of increased efficiencies, that have been or could be
effectuated, that would benefit the level and quality of available
resources for complementary paratransit service; and
(10) Unique circumstances in the submitting entity's area that affect
the ability of the entity to provide paratransit, that militate against
the need to provide paratransit, or in some other respect create a
circumstance considered exceptional by the submitting entity.
(b)(1) Costs attributable to complementary paratransit shall be
limited to costs of providing service specifically required by this part
to ADA paratransit eligible individuals, by entities responsible under
this part for providing such service.
(2) If the entity determines that it is impracticable to distinguish
between trips mandated by the ADA and other trips on a trip-by-trip
basis, the entity shall attribute to ADA complementary paratransit
requirements a percentage of its overall paratransit costs. This
percentage shall be determined by a statistically valid methodology that
determines the percentage of trips that are required by this part. The
entity shall submit information concerning its methodology and the data
on which its percentage is based with its request for a waiver. Only
costs attributable to ADA-mandated trips may be considered with respect
to a request for an undue financial burden waiver.
(3) Funds to which the entity would be legally entitled, but which,
as a matter of state or local funding arrangements, are provided to
another entity and used by that entity to provide paratransit service
which is part of a coordinated system of paratransit meeting the
requirements of this part, may be counted in determining the burden
associated with the waiver request.
37.157 -- 37.159 (Reserved)
49 CFR 37.155 Subpart G -- Provision of Service
49 CFR 37.161 Maintenance of accessible features: General.
(a) Public and private entities providing transportation services
shall maintain in operative condition those features of facilities and
vehicles that are required to make the vehicles and facilities readily
accessible to and usable by individuals with disabilities. These
features include, but are not limited to, lifts and other means of
access to vehicles, securement devices, elevators, signage and systems
to facilitate communications with persons with impaired vision or
hearing.
(b) Accessibility features shall be repaired promptly if they are
damaged or out of order. When an accessibility feature is out of order,
the entity shall take reasonable steps to accommodate individuals with
disabilities who would otherwise use the feature.
(c) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.
49 CFR 37.163 Keeping vehicle lifts in operative condition: Public
entities.
(a) This section applies only to public entities with respect to
lifts in non-rail vehicles.
(b) The entity shall establish a system of regular and frequent
maintenance checks of lifts sufficient to determine if they are
operative.
(c) The entity shall ensure that vehicle operators report to the
entity, by the most immediate means available, any failure of a lift to
operate in service.
(d) Except as provided in paragraph (e) of this section, when a lift
is discovered to be inoperative, the entity shall take the vehicle out
of service before the beginning of the vehicle's next service day and
ensure that the lift is repaired before the vehicle returns to service.
(e) If there is no spare vehicle available to take the place of a
vehicle with an inoperable lift, such that taking the vehicle out of
service will reduce the transportation service the entity is able to
provide, the public entity may keep the vehicle in service with an
inoperable lift for no more than five days (if the entity serves an area
of 50,000 or less population) or three days (if the entity serves an
area of over 50,000 population) from the day on which the lift is
discovered to be inoperative.
(f) In any case in which a vehicle is operating on a fixed route with
an inoperative lift, and the headway to the next accessible vehicle on
the route exceeds 30 minutes, the entity shall promptly provide
alternative transportation to individuals with disabilities who are
unable to use the vehicle because its lift does not work.
49 CFR 37.165 Lift and securement use.
(a) This section applies to public and private entities.
(b) All common wheelchairs and their users shall be transported in
the entity's vehicles or other conveyances. The entity is not required
to permit wheelchairs to ride in places other than designated securement
locations in the vehicle, where such locations exist.
(c) (1) For vehicles complying with part 38 of this title, the entity
shall use the securement system to secure wheelchairs as provided in
that Part.
(2) For other vehicles transporting individuals who use wheelchairs,
the entity shall provide and use a securement system to ensure that the
wheelchair remains within the securement area.
(3) The entity may require that an individual permit his or her
wheelchair to be secured.
(d) The entity may not deny transportation to a wheelchair or its
user on the ground that the device cannot be secured or restrained
satisfactorily by the vehicle's securement system.
(e) The entity may recommend to a user of a wheelchair that the
individual transfer to a vehicle seat. The entity may not require the
individual to transfer.
(f) Where necessary or upon request, the entity's personnel shall
assist individuals with disabilities with the use of securement systems,
ramps and lifts. If it is necessary for the personnel to leave their
seats to provide this assistance, they shall do so.
(g) The entity shall permit individuals with disabilities who do not
use wheelchairs, including standees, to use a vehicle's lift or ramp to
enter the vehicle.
49 CFR 37.167 Other service requirements.
(a) This section applies to public and private entities.
(b) On fixed route systems, the entity shall announce stops as
follows:
(1) The entity shall announce at least at transfer points with other
fixed routes, other major intersections and destination points, and
intervals along a route sufficient to permit individuals with visual
impairments or other disabilities to be oriented to their location.
(2) The entity shall announce any stop on request of an individual
with a disability.
(c) Where vehicles or other conveyances for more than one route serve
the same stop, the entity shall provide a means by which an individual
with a visual impairment or other disability can identify the proper
vehicle to enter or be identified to the vehicle operator as a person
seeking a ride on a particular route.
(d) The entity shall permit service animals to accompany individuals
with disabilities in vehicles and facilities.
(e) The entity shall ensure that vehicle operators and other
personnel make use of accessibility-related equipment or features
required by part 38 of this title.
(f) The entity shall make available to individuals with disabilities
adequate information concerning transportation services. This
obligation includes making adequate communications capacity available,
through accessible formats and technology, to enable users to obtain
information and schedule service.
(g) The entity shall not refuse to permit a passenger who uses a lift
to disembark from a vehicle at any designated stop, unless the lift
cannot be deployed, the lift will be damaged if it is deployed, or
temporary conditions at the stop, not under the control of the entity,
preclude the safe use of the stop by all passengers.
(h) The entity shall not prohibit an individual with a disability
from traveling with a respirator or portable oxygen supply, consistent
with applicable Department of Transportation rules on the transportation
of hazardous materials (49 CFR subtitle B, chapter 1, subchapter C).
(i) The entity shall ensure that adequate time is provided to allow
individuals with disabilities to complete boarding or disembarking from
the vehicle.
49 CFR 37.169 Interim requirements for over-the-road bus service
operated by private entities.
(a) Private entities operating over-the-road buses, in addition to
compliance with other applicable provisions of this part, shall provide
accessible service as provided in this section.
(b) The private entity shall provide assistance, as needed, to
individuals with disabilities in boarding and disembarking, including
moving to and from the bus seat for the purpose of boarding and
disembarking. The private entity shall ensure that personnel are
trained to provide this assistance safely and appropriately.
(c) To the extent that they can be accommodated in the areas of the
passenger compartment provided for passengers' personal effects,
wheelchairs or other mobility aids and assistive devices used by
individuals with disabilities, or components of such devices, shall be
permitted in the passenger compartment. When the bus is at rest at a
stop, the driver or other personnel shall assist individuals with
disabilities with the stowage and retrieval of mobility aids, assistive
devices, or other items that can be accommodated in the passenger
compartment of the bus.
(d) Wheelchairs and other mobility aids or assistive devices that
cannot be accommodated in the passenger compartment (including electric
wheelchairs) shall be accommodated in the baggage compartment of the
bus, unless the size of the baggage compartment prevents such
accommodation.
(e) At any given stop, individuals with disabilities shall have the
opportunity to have their wheelchairs or other mobility aids or
assistive devices stowed in the baggage compartment before other baggage
or cargo is loaded, but baggage or cargo already on the bus does not
have to be off-loaded in order to make room for such devices.
(f) The entity may require up to 48 hours' advance notice only for
providing boarding assistance. If the individual does not provide such
notice, the entity shall nonetheless provide the service if it can do so
by making a reasonable effort, without delaying the bus service.
49 CFR 37.171 Equivalency requirement for demand responsive service
operated by private entities not primarily engaged in the business of
transporting people.
A private entity not primarily engaged in the business of
transporting people which operates a demand responsive system shall
ensure that its system, when viewed in its entirety, provides equivalent
service to individuals with disabilities, including individuals who use
wheelchairs, as it does to individuals without disabilities. The
standards of 37.105 shall be used to determine if the entity is
providing equivalent service.
49 CFR 37.173 Training requirements.
Each public or private entity which operates a fixed route or demand
responsive system shall ensure that personnel are trained to
proficiency, as appropriate to their duties, so that they operate
vehicles and equipment safely and properly assist and treat individuals
with disabilities who use the service in a respectful and courteous way,
with appropriate attention to the difference among individuals with
disabilities.
49 CFR 37.173 Pt. 37, App. A
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49 CFR 37.173 Pt. 37, App. B
49 CFR 37.173 Appendix B to Part 37 -- UMTA Regional Offices
Region I, Urban Mass Transportation Administration, 206 Federal
Plaza, Suite 2940, New York, NY 10278
Region II, Urban Mass Transportation Administration, Transportation
Systems Center, Kendall Square, 55 Broadway, Suite 921, Cambridge, MA
02142
Region III, Urban Mass Transportation Administration, 841 Chestnut
Street, Suite 714, Philadelphia, PA 19107
Region IV, Urban Mass Transportation Administration, 1720 Peachtree
Road NW., Suite 400, Atlanta, GA 30309
Region V, Urban Mass Transportation Administration, 55 East Monroe
Street, Room 1415, Chicago, IL 60603
Region VI, Urban Mass Transportation Administration, 819 Taylor
Street, Suite 9A32, Ft. Worth, TX 76102
Region VII, Urban Mass Transportation Administration, 6301 Rockville
Road, Suite 303, Kansas City, MS 64131
Region VIII, Urban Mass Transportation Administration, Federal Office
Building, 1961 Stout Street, 5th Floor, Denver, CO 80294
Region IX, Urban Mass Transportation Administration, 211 Main Street,
Room 1160, San Francisco, CA 94105
Region X, Urban Mass Transportation Administration, 3142 Federal
Building, 915 Second Avenue, Seattle, WA 98174
49 CFR 37.173 Pt. 37, App. C
49 CFR 37.173 Appendix C to Part 37 -- Certifications
The (name of agency) certifies that its demand responsive service
offered to individuals with disabilities, including individuals who use
wheelchairs, is equivalent to the level and quality of service offered
to individuals without disabilities. Such service, when viewed in its
entirety, is provided in the most integrated setting feasible and is
equivalent with respect to:
(1) Response time;
(2) Fares;
(3) Geographic service area;
(4) Hours and days of service;
(5) Restrictions on trip purpose;
(6) Availability of information and reservation capability; and
(7) Constraints on capacity or service availability.
In accordance with 49 CFR 37.77, public entities operating demand
responsive systems for the general public which receive financial
assistance under section 18 of the Urban Mass Transportation Act must
file this certification with the appropriate state program office before
procuring any inaccessible vehicle. Such public entities not receiving
UMTA funds shall also file the certification with the appropriate state
program office. Such public entities receiving UMTA funds under any
other section of the UMT Act must file the certification with the
appropriate UMTA regional office. This certification is valid for no
longer than one year from its date of filing.
--
(name of authorized official)
--
(title)
--
(signature)
The (name of Metropolitan Planning Organization) hereby certifies
that it has reviewed the ADA paratransit plan prepared by (name of
submitting entity (ies)) as required under 49 CFR part 37. 139(h) and
finds it to be in conformance with the transportation plan developed
under 49 CFR part 613 and 23 CFR part 450 (the UMTA/FHWA joint planning
regulation). This certification is valid for one year.
--
signature
--
name of authorized official
--
title
--
date
This is to certify that (name of public entity (ies)) has conducted a
survey of existing paratransit services as required by 49 CFR 37.137
(a).
--
signature
--
name of authorized official
--
title
--
date
This is to certify that service provided by other entities but
included in the ADA paratransit plan submitted by (name of submitting
entity (ies)) meets the requirements of 49 CFR part 37, subpart F
providing that ADA eligible individuals have access to the service; the
service is provided in the manner represented; and, that efforts will
be made to coordinate the provision of paratransit service offered by
other providers.
--
signature
--
name of authorized official
--
title
--
date
This is to certify that (name of entity covered by joint plan) is
committed to providing ADA paratransit service as part of this
coordinated plan and in conformance with the requirements of 49 CFR part
37, subpart F.
--
signature
--
name of authorized official
--
title
--
date
This is to certify that (name of entity covered by joint plan) will,
in accordance with 49 CFR 37.141, maintain current levels of paratransit
service until the coordinated plan goes into effect.
--
signature
--
name of authorized official
--
title
--
date
This is to certify that all ADA paratransit plans required under 49
CFR 37.139 have been received by (state DOT)
--
signature
--
name of authorized official
--
title
--
date
49 CFR 37.173 Pt. 37, App. D
49 CFR 37.173 Appendix D to Part 37 -- Construction and Interpretation
of Provisions of 49 CFR part 37
This appendix explains the Department's construction and
interpretation of provisions of 49 CFR part 37. It is intended to be
used as definitive guidance concerning the meaning and implementation of
these provisions. The Appendix is organized on a section-by-section
basis. Some sections of the rule are not discussed in the Appendix,
because they are self-explanatory or we do not currently have
interpretive material to provide concerning them.
The Department also provides guidance by other means, such as manuals
and letters. The Department intends to update this Appendix
periodically to include guidance, provided in response to inquiries
about specific situations, that is of general relevance or interest.
Section 27.67(d) has been revised to reference the Access Board
facility guidelines (found in appendix A to part 37) as well as the
Uniform Federal Accessibility Standard (UFAS). This change was made to
ensure consistency between requirements under section 504 and the ADA.
Several caveats relating to the application of UFAS (e.g., that spaces
not used by the public or likely to result in the employment of
individuals with disabilities would not have to meet the standards) have
been deleted. It is the Department's understanding that provisions of
the Access Board standards and part 37 make them unnecessary.
The Department is aware that there is a transition period between the
publication of this rule and the effective date of many of its
provisions (e.g., concerning facilities and paratransit services) during
which section 504 remains the basic authority for accessibility
modifications. In this interval, the Department expects recipients'
compliance with section 504 to look forward to compliance with the ADA
provisions. That is, if a recipient is making a decision about the
shape of its paratransit service between the publication of this rule
and January 26, 1992, the decision should be in the direction of service
that will help to comply with post-January 1992 requirements. A
recipient that severely curtailed its present paratransit service in
October, and then asked for a three- or five-year phase-in of service
under its paratransit plan, would not be acting consistent with this
policy.
Likewise, the Department would view with disfavor any attempt by a
recipient to accelerate the beginning of the construction, installation
or alteration of a facility to before January 26, 1992, to ''beat the
clock'' and avoid the application of this rule's facility standards.
The Department would be very reluctant to approve grants, contracts,
exemption requests etc., that appear to have this effect. The purpose
of the Department's administration of section 504 is to ensure
compliance with the national policy stated in the ADA, not to permit
avoidance of it.
The definition of ''commuter authority'' includes a list of commuter
rail operators drawn from a statutory reference in the ADA. It should
be noted that this list is not exhaustive. Other commuter rail
operators (e.g., in Chicago or San Francisco) would also be encompassed
by this definition.
The definition of ''commuter bus service'' is important because the
ADA does not require complementary paratransit to be provided with
respect to commuter bus service operated by public entities. The
rationale that may be inferred for the statutory exemption for this kind
of service concerns its typical characteristics (e.g., no attempt to
comprehensively cover a service area, limited route structure, limited
origins and destinations, interface with another mode of transportation,
limited purposes of travel). These characteristics can be found in some
transportation systems other than bus systems oriented toward work
trips. For example, bus service that is used as a dedicated connecter
to commuter or intercity rail service, certain airport shuttles, and
university bus systems share many or all of these characteristics. As
explained further in the discussion of subpart B, the Department has
determined that it is appropriate to cover these services with the
requirements applicable to commuter bus systems.
The definitions of ''designated public transportation'' and
''specified public transportation'' exclude transportation by aircraft.
Persons interested in matters concerning access to air travel for
individuals with disabilities should refer to 14 CFR part 382, the
Department's regulation implementing the Air Carrier Access Act. Since
the facility requirements of this part refer to facilities involved in
the provision of designated or specified public transportation, airport
facilities are not covered by this part. DOJ makes clear that public
and private airport facilities are covered under its title II and title
III regulations, respectively.
The examples given in the definition of ''facility'' all relate to
ground transportation. We would point out that, since transportation by
passenger vessels is covered by this rule and by DOJ rules, such
vessel-related facilities as docks, wharfs, vessel terminals etc. fall
under this definition. It is intended that specific requirements for
vessels and related facilities will be set forth in future rulemaking.
The definitions of ''fixed route system'' and ''demand responsive
system'' derive directly from the ADA's definitions of these terms.
Some systems, like a typical city bus system or a dial-a-ride van
system, fit clearly into one category or the other. Other systems may
not so clearly fall into one of the categories. Nevertheless, because
how a system is categorized has consequences for the requirements it
must meet, entities must determine, on a case-by-case basis, into which
category their systems fall.
In making this determination, one of the key factors to be considered
is whether the individual, in order to use the service, must request the
service, typically by making a call.
With fixed route service, no action by the individual is needed to
initiate public transportation. If an individual is at a bus stop at
the time the bus is scheduled to appear, then that individual will be
able to access the transportation system. With demand-reponsive
service, an additional step must be taken by the individual before he or
she can ride the bus, i.e., the individual must make a telephone call.
(S. Rept. 101-116 at 54).
Other factors, such as the presence or absence of published
schedules, or the variation of vehicle intervals in anticipation of
differences in usage, are less important in making the distinction
between the two types of service. If a service is provided along a
given route, and a vehicle will arrive at certain times regardless of
whether a passenger actively requests the vehicle, the service in most
cases should be regarded as fixed route rather than demand responsive.
At the same time, the fact that there is an interaction between a
passenger and transportation service does not necessarily make the
service demand responsive. For many types of service (e.g., intercity
bus, intercity rail) which are clearly fixed route, a passenger has to
interact with an agent to buy a ticket. Some services (e.g., certain
commuter bus or commuter rail operations) may use flag stops, in which a
vehicle along the route does not stop unless a passenger flags the
vehicle down. A traveler staying at a hotel usually makes a room
reservation before hopping on the hotel shuttle. This kind of
interaction does not make an otherwise fixed route service demand
responsive.
On the other hand, we would regard a system that permits
user-initiated deviations from routes or schedules as demand-responsive.
For example, if a rural public transit system (e.g., a section 18
recipient) has a few fixed routes, the fixed route portion of its system
would be subject to the requirements of subpart F for complementary
paratransit service. If the entity changed its system so that it
operated as a route-deviation system, we would regard it as a demand
responsive system. Such a system would not be subject to complementary
paratransit requirements.
The definition of ''individual with a disability'' excludes someone
who is currently engaging in the illegal use of drugs, when a covered
entity is acting on the basis of such use. This concept is more
important in employment and public accommodations contexts than it is in
transportation, and is discussed at greater length in the DOJ and EEOC
rules. Essentially, the definition says that, although drug addiction
(i.e., the status or a diagnosis of being a drug abuser) is a
disability, no one is regarded as being an individual with a disability
on the basis of current illegal drug use.
Moreover, even if an individual has a disability, a covered entity
can take action against the individual if that individual is currently
engaging in illegal drug use. For example, if a person with a mobility
or vision impairment is ADA paratransit eligible, but is caught
possessing or using cocaine or marijuana on a paratransit vehicle, the
transit provider can deny the individual further eligibility. If the
individual has successfully undergone rehabilitation or is no longer
using drugs, as explained in the preamble to the DOJ rules, the transit
provider could not continue to deny eligibility on the basis that the
individual was a former drug user or still was diagnosed as a person
with a substance abuse problem.
We defined ''paratransit'' in order to note its specialized usage in
the rule. Part 37 uses this term to refer to the complementary
paratransit service comparable to public fixed route systems which must
be provided. Typically, paratransit is provided in a demand responsive
mode. Obviously, the rule refers to a wide variety of demand responsive
services that are not ''paratransit,'' in this specialized sense.
The ADA's definition of ''over-the-road bus'' may also be somewhat
narrower than the common understanding of the term. The ADA definition
focuses on a bus with an elevated passenger deck over a baggage
compartment (i.e., a ''Greyhound-type'' bus). Other types of buses
commonly referred to as ''over-the-road buses,'' which are sometimes
used for commuter bus or other service, do not come within this
definition. Only buses that do come within the definition are subject
to the over-the-road bus exception to accessibility requirements in
Title III of the ADA.
For terminological clarity, we want to point out that two different
words are used in ADA regulations to refer to devices on which
individuals with hearing impairments communicate over telephone lines.
DOJ uses the more traditional term ''telecommunications device for the
deaf'' (TDD). The Access Board uses a newer term, ''text telephone.''
The DOT rule uses the terms interchangably.
The definition of ''transit facility'' applies only with reference to
the TDD requirement of Appendix A to this Part. The point of the
definition is to exempt from TDD requirements open structures, like bus
shelters, or facilities which are not used primarily as transportation
stops or terminals. For example, a drug store in a small town may sell
intercity bus tickets, and people waiting for the bus may even wait for
the bus inside the store. But the drug store's raison d'etre is not to
be a bus station. Its transportation function is only incidental.
Consequently, its obligations with respect to TDDs would be those
required of a place of public accommodation by DOJ rules.
A ''used vehicle'' means a vehicle which has prior use; prior, that
is, to its acquisition by its present owner or lessee. The definition
is not relevant to existing vehicles in one's own fleet, which were
obtained before the ADA vehicle accessibility requirements took effect.
A ''vanpool'' is a voluntary commuter ridesharing arrangement using a
van with a seating capacity of more than seven persons, including the
driver. Carpools are not included in the definition. There are some
systems using larger vehicles (e.g., buses) that operate, in effect, as
vanpools. This definition encompasses such systems. Vanpools are used
for daily work trips, between commuters' homes (or collection points
near them) and work sites (or drop points near them). Drivers are
themselves commuters who are either volunteers who receive no
compensation for their efforts or persons who are reimbursed by other
riders for the vehicle, operating, and driving costs.
The definition of ''wheelchair'' includes a wide variety of mobility
devices. This inclusiveness is consistent with the legislative history
of the ADA (See S. Rept. 101-116 at 48). While some mobility devices
may not look like many persons' traditional idea of a wheel chair, three
and four wheeled devices, of many varied designs, are used by
individuals with disabilities and must be transported. The definition
of ''common wheelchair,'' developed by the Access Board, is intended to
help transit providers determine which wheelchairs they have to carry.
The definition involves an ''envelope'' relating to the Access Board
requirements for vehicle lifts.
A lift conforming to Access Board requirements is 30'' x 48'' and
capable of lifting a wheelchair/occupant combination of up to 600
pounds. Consequently, a common wheelchair is one that fits these size
and weight dimensions. Devices used by individuals with disabilities
that do not fit this envelope (e.g., may ''gurneys'') do not have to be
carried.
This section states the general nondiscrimination obligation for
entities providing transportation service. It should be noted that
virtually all public and private entities covered by this regulation are
also covered by DOJ regulations, which have more detailed statements of
general nondiscrimination obligations.
Under the ADA, an entity may not consign an individual with
disabilities to a separate, ''segregated,'' service for such persons, if
the individual can in fact use the service for the general public. This
is true even if the individual takes longer, or has more difficulty,
than other persons in using the service for the general public.
One instance in which this principal applies concerns the use of
designated priority seats (e.g., the so-called ''elderly and
handicapped'' seats near the entrances to buses). A person with a
disability (e.g., a visual impairment) may choose to take advantage of
this accommodation or not. If not, it is contrary to rule for the
entity to insist that the individual must sit in the priority seats.
The prohibition on special charges applies to charges for service to
individuals with disabilities that are higher than charges for the same
or comparable services to other persons. For examples, if a shuttle
service charges $20.00 for a ride from a given location to the airport
for most people, it could not charge $40.00 because the passenger had a
disability or needed to use the shuttle service's lift-equipped van.
Higher mileage charges for using an accessible vehicle would likewise be
inconsistent with the rule. So would charging extra to carry a service
animal accompanying an individual with a disability.
If a taxi company charges $1.00 to stow luggage in the trunk, it
cannot charge $2.00 to stow a folding wheelchair there. This provision
does not mean, however, that a transportation provider cannot charge
nondiscriminatory fees to passengers with disabilities. The taxi
company in the above example can charge a passenger $1.00 to stow a
wheelchair in the trunk; it is not required to waive the charge. This
section does not prohibit the fares for paratransit service which
transit providers are allowed to charge under 37.131(d).
A requirement for an attendant is inconsistent with the general
nondiscrimination principle that prohibits policies that unnecessarily
impose requirements on individuals with disabilities that are not
imposed on others. Consequently, such requirements are prohibited. An
entity is not required to provide attendant services (e.g., assistance
in toileting, feeding, dressing) etc.
This provision must also be considered in light of the fact that an
entity may refuse service to someone who engages in violent, seriously
disruptive, or illegal conduct. If an entity may legitimately refuse
service to someone, it may condition service to him on actions that
would mitigate the problem. The entity could require an attendant as a
condition of providing service it otherwise had the right to refuse.
The rule also points out that involuntary conduct related to a
disability that may offend or annoy other persons, but which does not
pose a direct treat, is not a basis for refusal of transportation. For
example, some persons with Tourette's syndrome may make involuntary
profane exclamations. These may be very annoying or offensive to
others, but would not be a ground for denial of service. Nor would it
be consistent with the nondiscrimination requirements of this part to
deny service based on fear or misinformation about the disability. For
example, a transit provider could not deny service to a person with HIV
disease because its personnel or other passengers are afraid of being
near people with that condition.
This section also prohibits denials of service or the placing on
services of conditions inconsistent with this part on individuals with
disabilities because of insurance company policies or requirements. If
an insurance company told a transit provider that it would withdraw
coverage, or raise rates, unless a transit provider refused to carry
persons with disabilities, or unless the provider refused to carry
three-wheeled scooters, this would not excuse the provider from
providing the service as mandate by this part. This is not a regulatory
requirement on insurance companies, but simply says that covered
entities must comply with this part, even in the face of difficulties
with their insurance companies.
This section makes clear that, in order to meet accessibility
requirements of this rule, vehicles must comply with Access Board
standards, incorporated in DOT rules as 49 CFR part 38. Paragraph (b)
of 37.7 spells out a procedure by which an entity (public or private)
can deviate from provisions of part 38 with respect to vehicles. The
entity can make a case to the Administrator that it is unable to comply
with a particular portion of part 38, as written, for specified reasons,
and that it is providing comparable compliance by some alternative
method. The entity would have to describe how its alternative mode of
compliance would meet or exceed the level of access to or usability of
the vehicle that compliance with part 38 would otherwise provide.
It should be noted that equivalent facilitation does not provide a
means to get a waiver of accessibility requirements. Rather, it is a
way in which comparable (not a lesser degree of) accessibility can be
provided by other means. The entity must consult with the public
through some means of public participation in devising its alternative
form of compliance, and the public input must be reflected in the
submission to the Administrator (or the Federal Railroad Administrator
in appropriate cases, such as a request concerning Amtrak). The
Administrator will make a case-by-case decision about whether compliance
with part 38 was achievable and, if not, weather the proffered
alternative complies with the equivalent facilitation standard. DOT
intends to consult with the Access Board in making these determinations.
This equivalent facilitation provision can apply to buses or other
motor vehicles as well as to rail cars and vehicles. An example of what
could be an equivalent facilitation would concern rail cars which would
leave too wide a horizontal gap between the door and the platform. If
the operator used a combination of bridgeplates and personnel to bridge
the gap, it might be regarded as an equivalent facilitation in
appropriate circumstances.
Section 37.7(c) clarifies which specifications must be complied with
for over-the-road buses purchased by public entities (under subpart D of
part 37) or private entities standing in the shoes of the public entity
(as described in 37.23 of part 37). This section is necessary to make
clear that over-the-road coaches must be accessible, when they are
purchased by or in furtherance of a contract with a public entity.
While the October 4, 1990 rule specified that over-the-road coaches must
be accessible under these circumstances, we had not previously specified
what constitutes accessibility.
Accordingly, this paragraph specifies that an over-the-road bus must
have a lift which meets the performance requirements of a regular bus
lift (see 38.23) and must meet the interim accessibility features
specified for all over-the-road buses in part 3, subpart G.
This section makes clear that, in order to meet accessibility
requirements of this rule, vehicles must comply with appendix A to part
37, which incorporates the Access Board facility guidelines.
Paragraph (b) of 37.9 provides that, under certain circumstances,
existing accessibility modifications to key station facilities do not
need to be modified further in order to conform to appendix A. This is
true even if the standards under which the facility was modified differ
from the Access Board guidelines or provide a lesser standard of
accessibility.
To qualify for this ''grandfathering,'' alterations must have been
before January 26, 1992. As in other facility sections of the rule, an
alteration is deemed to begin with the issuance of a notice to proceed
or work order. The existing modifications must conform to ANSI A-117.1,
Specifications for Making Buildings and Facilities Accessible to and
Usable by the Physically Handicapped 1980, or the Uniform Federal
Accessibility Standard. (UFAS).
For example, if an entity used a Federal grant or loan or money to
make changes to a building, it would already have had to comply with the
Uniform Federal Accessibility Standards. Likewise, if a private entity,
acting without any federal money in the project, may have complied with
the ANSI A117.1 standard. So long as the work was done in conformity
with the standard that was in effect when the work was done, the
alteration will be considered accessible.
However, because one modification was made to a facility under one of
these standards, the entity still has a responsibility to make other
modifications needed to comply with applicable accessibility
requirements. For example, if an entity has made some modifications to
a key station according to one of these older standards, but the
modifications do not make the key station entirely accessible as this
rule requires, then additional modifications would have to be made
according to the standards of appendix A. Suppose this entity has put
an elevator into the station to make it accessible to individuals who
use wheelchairs. If the elevator does not fully meet appendix A
standards, but met the applicable ANSI standard when it was installed,
it would not need further modifications now. But if it had not already
done so, the entity would have to install a tactile strip along the
platform edge in order to make the key station fully accessible as
provided in this rule. The tactile strip would have to meet appendix A
requirements.
The rule specifically provides that ''grandfathering'' applies only
to alterations of individual elements and spaces and only to the extent
that provisions covering those elements or spaces are found in UFAS or
AHSI A117.1. For example, alterations to the telephones in a key station
may have been carried out in order to lower them to meet the
requirements of UFAS, but telecommunications devices for the deaf (TDDs)
were not installed. (Neither UFAS nor the ANSI standard include
requirements concerning TDDs). However, because appendix A does contain
TDD requirements, the key station must now be altered in accordance with
the standards for TDDs. Similarly, earlier alteration of an entire
station in accordance with UFAS or the ANSI standard would not relieve
an entity from compliance with any applicable provision concerning the
gap between the platform between the platform and the vehicle in a key
station, because neither of these two standards addresses the interface
between vehicle and platform.
New paragraph (c) of this section clarifies a provision of the Access
Board's standards concerning the construction of bus stop pads at bus
stops. The final Access Board standard (found at section 10.2.1(1) of
appendix A to part 37) has been rewritten slightly to clear up confusion
about the perceived necessary construction of a bus stop pad. Section
10.2.1(1) does not require that anyone build a bus stop pad; it does
specify what a bus stop pad must look like, if it is constructed. The
further clarifying language in 37.9(c) explains that public entities
must exert control over the construction of bus stop pads if they have
the ability to do so. The Access Board, as well as DOT, recognize that
most physical improvements related to bus stops are out of the control
of the transit provider. Paragraph (c) of 37.9 merely notes that where
a transit provider does have control over the construction, it must
exercise that control to ensure that the pad meets these specifications.
One further clarification concerning the implication of this
provision deals with a bus loading island at which buses pull up on both
sides of the island. It would be possible to read the bus pad
specification to require the island to be a minimum of 84 inches wide
(two widths of a bus stop pad), so that a lift could be deployed from
buses on both sides of the island at the same time. A double-wide bus
pad, however, is likely to exceed available space in most instances.
Where there is space, of course, building a double-wide pad is one
acceptable option under this rule. However, the combination of a pad of
normal width and standard operational practices may also suffice. (Such
practices could be offered as an equivalent facilitation.) For example,
buses on either side of the island could stop at staggered locations
(i.e., the bus on the left side could stop several feet ahead of the bus
on the right side), so that even when buses were on both sides of the
island at once, their lifts could be deployed without conflict. Where
it is possible, building the pad a little longer than normal size could
facilitate such an approach. In a situation where staggered stop areas
are not feasible, an operational practice of having one bus wait until
the other's lift cycle had been completed could do the job. Finally,
the specification does not require that a pad be built at all. If there
is nothing that can be done to permit lift deployment on both sides of
an island, the buses can stop on the street, or some other location, so
long as the lift is deployable.
Like 37.7, this section contains a provision allowing an entity to
request approval for providing accessibility through an equivalent
facilitation.
This section spells out administrative means of enforcing the
requirements of the ADA. Recipients of Federal financial assistance
from DOT (whether public or private entities) are subject to DOT's
section 504 enforcement procedures. The existing procedures, including
administrative complaints to the DOT Office of Civil Rights,
investigation, attempts at conciliation, and final resort to proceedings
to cut off funds to a noncomplying recipient, will continue to be used.
In considering enforcement matters, the Department is guided by a
policy that emphasizes compliance. The aim of enforcement action, as we
see it, is to make sure that entities meet their obligations, not to
impose sanctions for their own sake. The Department's enforcement
priority is on failures to comply with basic requirements and ''pattern
or practice'' kinds of problems, rather than on isolated operational
errors.
Under the DOJ rules implementing Title II of the ADA (28 CFR part
35), DOT is a ''designated agency'' for enforcement of complaints
relating to transportation programs of public entities, even if they do
not receive Federal financial assistance. When it receives such a
complaint, the Department will investigate the complaint, attempt
conciliation and, if conciliation is not possible, take action under
section 504 and/or refer the matter to the DOJ for possible further
action.
Title III of the ADA does not give DOT any administrative enforcement
authority with respect to private entities whose transportation services
are subject to part 37. In its Title III rule (28 CFR part 36), DOJ
assumes enforcement responsibility for all Title III matters. If the
Department of Transportation receives complaints of violations of part
37 by private entities, it will refer the matters to the DOJ.
It should be pointed out that the ADA includes other enforcement
options. Individuals have a private right of action against entities
who violate the ADA and its implementing regulations. The DOJ can take
violators to court. These approaches are not mutually exclusive with
the administrative enforcement mechanisms described in this section. An
aggrieved individual can complain to DOT about an alleged transportation
violation and go to court at the same time. Use of administrative
enforcement procedures is not, under titles II and III, an
administrative remedy that individuals must exhaust before taking legal
action.
We also would point out that the ADA does not assert any blanket
preemptive authority over state or local nondiscrimination laws and
enforcement mechanisms. While requirements of the ADA and this
regulation would preempt conflicting state or local provisions (e.g., a
building code or zoning ordinance that prevents compliance with appendix
A or other facility accessibility requirements, a provision of local law
that said bus drivers could not leave their seats to help secure
wheelchair users), the ADA and this rule do not prohibit states and
localities from legislating in areas relating to disability. For
example, if a state law requires a higher degree of service than the
ADA, that requirement could still be enforced. Also, states and
localities may continue to enforce their own parallel requirements. For
example, it would be a violation of this rule for a taxi driver to
refuse to pick up a person based on that person's disability. Such a
refusal may also be a violation of a county's taxi rules, subjecting the
violator to a fine or suspension of operating privileges. Both ADA and
local remedies could proceed in such a case.
Labor-management agreements cannot stand in conflict with the
requirements of the ADA and this rule. For example, if a
labor-management agreement provides that vehicle drivers are not
required to provide assistance to persons with disabilities in a
situation in which this rule requires such assistance, then the
assistance must be provided notwithstanding the agreement. Labor and
management do not have the authority to agree to violate requirements of
Federal law.
This section contains an explicit statement of the effective date for
vehicle lift platform specifications. The Department has decided to
apply the new 30'' by 48'' lift platform specifications to solicitations
after January 25, 1992. As in the October 4, 1990, rule implementing
the acquisition requirements; the date of a solicitation is deemed to
be the closing date for the submission of bids or offers in a
procurement.
This section emphasizes the broad applicability of part 37. Unlike
section 504, the ADA and its implementing rules apply to entities
whether or not they receive Federal financial assistance. They apply to
private and public entities alike. For entities which do receive
Federal funds, compliance with the ADA and part 37 is a condition of
compliance with section 504 and 49 CFR part 27, DOT's section 504 rule.
Virtually all entities covered by this rule also are covered by DOJ
rules, either under 28 CFR part 36 as state and local program providers
or under 28 CFR part 35 as operators of places of public accommodation.
Both sets of rules apply; one does not override the other. The DOT
rules apply only to the entity's transportation facilities, vehicles, or
services; the DOJ rules may cover the entity's activities more broadly.
For example, if a public entity operates a transit system and a zoo,
DOT's coverage would stop at the transit system's edge, while DOJ's rule
would cover the zoo as well.
DOT and DOJ have coordinated their rules, and the rules have been
drafted to be consistent with one another. Should, in the context of
some future situation, there be an apparent inconsistency between the
two rules, the DOT rule would control within the sphere of
transportation services, facilities and vehicles.
This section requires private entities to ''stand in the shoes'' of
public entities with whom they contract to provide transportation
services. It ensures that, while a public entity may contract out its
service, it may not contract away its ADA responsibilities. The
requirement applies primarily to vehicle acquisition requirements and to
service provision requirements.
If a public entity wishes to acquire vehicles for use on a commuter
route, for example, it must acquire accessible vehicles. It may acquire
accessible over-the-road buses, it may acquire accessible full-size
transit buses, it may acquire accessible smaller buses, or it may
acquire accessible vans. It does not matter what kind of vehicles it
acquires, so long as they are accessible. On the other hand, if the
public entity wants to use inaccessible buses in its existing fleet for
the commuter service, it may do so. All replacement vehicles acquired
in the future must, of course, be accessible.
Under this provision, a private entity which contracts to provide
this commuter service stands in the shoes of the public entity and is
subject to precisely the same requirements (it is not required to do
more than the public entity). If the private entity acquires vehicles
used to provide the service, the vehicles must be accessible. If it
cannot, or chooses not to, acquire an accessible vehicle of one type, it
can acquire an accessible vehicle of another type. Like the public
entity, it can provide the service with inaccessible vehicles in its
existing fleet.
The import of the provision is that it requires a private entity
contracting to provide transportation service to a public entity to
follow the rules applicable to the public entity. For the time being, a
private entity operating in its own right can purchase a new
over-the-road bus inaccessible to individuals who use wheelchairs. When
that private entity operates service under contract to the public
entity, however, it is just as obligated as the public entity itself to
purchase an accessible bus for use in that service, whether or not it is
an over-the-road bus.
The ''stand in the shoes'' requirement applies not only to vehicles
acquired by private entities explicitly under terms of an executed
contract to provide service to a public entity, but also to vehicles
acquired ''in contemplation of use'' for service under such a contract.
This language is included to ensure good faith compliance with
accessibility requirements for vehicles acquired before the execution of
a contract. Whether a particular acquisition is in contemplation of use
on a contract will be determined on a case-by-case basis. However,
acquiring a vehicle a short time before a contract is executed and then
using it for the contracted service is an indication that the vehicle
was acquired in contemplation of use on the contract, as is acquiring a
vehicle obstensibly for other service provided by the entity and then
regularly rotating it into service under the contract.
The ''stand in the shoes'' requirement is applicable only to the
vehicles and service (public entity service requirements, like 37.163,
apply to a private entity in these situations) provided under contract
to a public entity. Public entity requirements clearly do not apply to
all phases of a private entity's operations, just because it has a
contract with a public entity. For example, a private bus company, if
purchasing buses for service under contract to a public entity, must
purchase accessible buses. The same company, to the extent permitted by
the private entity provisions of this part, may purchase inaccessible
vehicles for its tour bus operations.
The Department also notes that the ''stands in the shoes''
requirement may differ depending on the kind of service involved. The
public entity's ''shoes'' are shaped differently, for example, depending
on whether the public entity is providing fixed route or demand
responsive service to the general public. In the case of demand
responsive service, a public entity is not required to buy an accessible
vehicle if its demand responsive system, when viewed in its entirety,
provides service to individuals with disabilities equivalent to its
service to other persons. A private contractor providing a portion of
this paratransit service would not necessarily have to acquire an
accessible vehicle if this equivalency test is being met by the system
as a whole. Similarly, a public entity can, after going through a
''good faith efforts'' search, acquire inaccessible buses. A private
entity under contract to the public can do the same. ''Stand in the
shoes'' may also mean that, under some circumstances, a private
contractor need not acquire accessible vehicles. If a private company
contracts with a public school district to provide school bus service,
it is covered, for that purpose, by the exemption for public school
transportation.
In addition, the requirement that a private entity play by the rules
applicable to a public entity can apply in situations involving an
''arrangement or other relationship'' with a public entity other than
the traditional contract for service. For example, a private utility
company that operates what is, in essence, a regular fixed route public
transportation system for a city, and which receives section 3 or 9
funds from UMTA via an agreement with a state or local government
agency, would fall under the provisions of this section. The provider
would have to comply with the vehicle acquisition, paratransit, and
service requirements that would apply to the public entity through which
it receives the UMTA funds, if that public entity operated the system
itself. The Department would not, however, construe this section to
apply to situations in which the degree of UMTA funding and state and
local agency involvement is considerably less, or in which the system of
transportation involved is not a de facto surrogate for a traditional
public entity fixed route transit system serving a city (e.g., a private
non-profit social service agency which receives UMTA section 16(b)(2)
funds to purchase a vehicle).
This section also requires that a public entity not diminish the
percentage of accessible vehicles in its fleet through contracting. For
example, suppose a public entity has 100 buses in its fleet, of which 20
are accessible, meaning that 20 percent of its fleet is accessible. The
entity decides to add a fixed route, for which a contractor is engaged.
The contractor is supplying ten of its existing inaccessible buses for
the fixed route. To maintain the 20 percent accessibility ratio, there
would have to be 22 accessible buses out of the 110 buses now in
operation in carrying out the public entity's service. The public
entity could maintain its 20 percent level of accessibility through any
one or more of a number of means, such as having the contractor to
provide two accessible buses, retrofitting two if its own existing
buses, or accelerating replacement of two of its own inaccessible buses
with accessible buses.
This rule applies the ''stand in the shoes'' principle to
transactions wholly among private entities as well. For example,
suppose a taxi company (a private entity primarily engaged in the
business of transporting people) contracts with a hotel to provide
airport shuttle van service. With respect to that service, the taxi
company would be subject to the requirements for private entities not
primarily in the business of transporting people, since it would be
''standing in the shoes'' of the hotel for that purpose.
Private university-operated transportation systems are subject to the
requirements of this rule for private entities not primarily engaged in
the business of transporting people. With one important exception,
public university-operated transportation systems are subject to the
requirements of the rule for public entities. The nature of the systems
involved -- demand-responsive or fixed route -- determines the precise
requirements involved.
For public university fixed route systems, public entity requirements
apply. In the case of fixed route systems, the requirements for
commuter bus service would govern. This has the effect of requiring the
acquisition of accessible vehicles and compliance with most other
provisions of the rule, but does not require the provision of
complementary paratransit or submitting a paratransit plan. As a
result, private and public universities will have very similar
obligations under the rule.
This section restates the statutory exemption from public entity
requirements given to public school transportation. This extension also
applies to transportation of pre-school children to Head Start or
special education programs which receive Federal assistance. It also
applies to arrangements permitting pre-school children of school bus
drivers to ride a school bus or allowing teenage mothers to be
transported to day care facilities at a school or along a school bus
route so that their mothers may continue to attend school (See H. Rept.
101-485, pt. 1 at 27). The situation for private schools is more
complex. According to the provision, a private elementary or secondary
school's transportation system is exempt from coverage under this rule
if all three of the following conditions are met: (1) The school
receives Federal financial assistance; (2) the school is subject to
section 504; and (3) the school's transportation system provides
transportation services to individuals with disabilities, including
wheelchair users, equivalent to those provided to individuals without
disabilities. The test of equivalency is the same as that for other
private entities, and is described under 37.105. If the school does not
meet all these criteria, then it is subject to the requirements of Part
37 for private entities not primarily engaged in the business of
transporting people.
The Department notes that, given the constitutional law on
church-state separation, it is likely that church-affiliated private
schools do not receive Federal financial assistance. To the extent that
these schools' transportation systems are operated by religious entities
or entities controlled by religious organizations, they are not subject
to the ADA at all, so this section does not apply to them.
This section first recites that providers of taxi service are private
entities primarily engaged in the business of transporting people which
provide demand responsive service. For purposes of this section, other
transportation services that involve calling for a car and a driver to
take one places (e.g., limousine services, of the kind that provide
luxury cars and chauffeurs for senior proms and analogous adult events)
are regarded as taxi services.
Under the ADA, no private entity is required to purchase an
accessible automobile. If a taxi company purchases a larger vehicle,
like a van, it is subject to the same rules as any other private entity
primarily engaged in the business of transporting people which operates
a demand responsive service. That is, unless it is already providing
equivalent service, any van it acquires must be accessible. Equivalent
service is measured according to the criteria of 37.105. Taxi
companies are not required to acquire vehicles other than automobiles to
add accessible vehicles to their fleets.
Taxi companies are subject to nondiscrimination obligations. These
obligations mean, first, that a taxi service may not deny a ride to an
individual with a disability who is capable of using the taxi vehicles.
It would be discrimination to pass up a passenger because he or she was
blind or used a wheelchair, if the wheelchair was one that could be
stowed in the cab and the passenger could transfer to a vehicle seat.
Nor could a taxi company insist that a wheelchair user wait for a
lift-equipped van if the person could use an automobile.
It would be discrimination for a driver to refuse to assist with
stowing a wheelchair in the trunk (since taxi drivers routinely assist
passengers with stowing luggage). It would be discrimination to charge
a higher fee or fare for carrying a person with a disability than for
carrying a non-disabled passenger, or a higher fee for stowing a
wheelchair than for stowing a suitcase. (Charging the same fee for
stowing a wheelchair as for stowing a suitcase would be proper,
however.) The fact that it may take somewhat more time and effort to
serve a person with a disability than another passenger does not justify
discriminatory conduct with respect to passengers with disabilities.
State or local governments may run user-side subsidy arrangements for
the general public (e.g., taxi voucher systems for senior citizens or
low-income persons). Under the DOJ title II rule, these programs would
have to meet ''program accessibility'' requirements, which probably
would require that accessible transportation be made available to senior
citizens or low-income persons with disabilities. This would not
directly require private taxi providers who accept the vouchers to
purchase accessible vehicles beyond the requirements of this rule,
however.
This provision applies to public vanpool systems the requirements for
public entities operating demand responsive systems for the general
public. A public vanpool system is one operated by a public entity, or
in which a public entity owns or purchases or leases the vehicles.
Lesser degrees of public involvement with an otherwise private
ridesharing arrangement (e.g., provision of parking spaces, HOV lanes,
coordination or clearinghouse services) do not convert a private into a
public system.
The requirement for a public vanpool system is that it purchase or
lease an accessible vehicle unless it can demonstrate that it provides
equivalent service to individuals with disabilities, including
individuals who use wheelchairs, as it provides to individuals without
disabilities. For a public vanpool system, the equivalency requirement
would be met if an accessible vehicle is made available to and used by a
vanpool when an individual with a disability needs such a vehicle to
participate. Public vanpool systems may meet this requirement through
obtaining a percentage of accessible vehicles that is reasonable in
light of demand for them by participants, but this is not required, so
long as the entity can respond promptly to requests for participation in
a vanpool with the provision of an accessible van when needed.
There is no requirement for private vanpools, defined as a voluntary
arrangement in which the driver is compensated only for expenses.
Fixed route transportation systems operated by public airports are
regarded by this section as fixed route commuter bus systems. As such,
shuttles among terminals and parking lots, connector systems among the
airport and a limited number of other local destinations must acquire
accessible buses, but are not subject to complementary paratransit
requirements. (If a public airport operates a demand responsive system
for the general public, it would be subject to the rules for demand
responsive systems for the general public.)
It should be noted that this section applies only to transportation
services that are operated by public airports themselves (or by private
contractors who stand in their shoes). When a regular urban mass
transit system serves the airport, the airport is simply one portion of
its service area, treated for purposes of this rule like the rest of its
service area.
Virtually all airports are served by taxi companies, who are subject
to 37.29 at airports as elsewhere. In addition, many airports are
served by jitney or shuttle systems. Typically, these systems operate
in a route-deviation or similar variable mode in which there are
passenger-initiated decisions concerning destinations. We view such
systems as demand responsive transportation operated by private entities
primarily engaged in the business of transporting people.
Since many of these operators are small businesses, it may be
difficult for them to meet equivalency requirements on their own without
eventually having all or nearly all accessible vehicles, which could
pose economic problems. One suggested solution to this problem is for
the operators serving a given airport to form a pool or consortium
arrangement, in which a number of shared accessible vehicles would meet
the transportations of individuals with disabilities. As in other forms
of transportation, such an arrangement would have to provide service in
a nondiscriminatory way (e.g., in an integrated setting, no higher fares
for accessible service).
This section applies to a number of situations in which an operator
of another transportation mode uses bus or other service to connect its
service with limited other points.
One instance is when an intercity railroad route is set up such that
the train stops outside the major urban center which is the actual
destination for many passengers. Examples mentioned to us include bus
service run by Amtrak from a stop in Columbus, Wisconsin, to downtown
Madison, or from San Jose to San Francisco. Such service is fixed
route, from the train station to a few points in the metropolitan area,
with a schedule keyed to the train schedule. It would be regarded as
commuter bus service, meaning that accessible vehicles would have to be
acquired but complementary paratransit was not required.
Another instance is one in which a commuter rail operator uses fixed
route bus service as a dedicated connection to, or extension of, its
rail service. The service may go to park and ride lots or other
destinations beyond the vicinity of the rail line. Again, this service
shares the characteristics of commuter bus service that might be used
even if the rail line were not present, and does not attempt to be a
comprehensive mass transit bus service for the area.
Of course, there may be instances in which a rail operator uses
demand responsive instead of fixed route service for a purpose of this
kind. In that case, the demand responsive system requirements of the
rule would apply.
Private entities (i.e., those operating places of public
accommodation) may operate similar systems, as when a cruise ship
operator provides a shuttle or connector between an airport and the
dock. This service is covered by the rules governing private entities
not primarily engaged in the business of transporting people. Fixed
route or demand responsive rules apply, depending on the characteristics
of the system involved.
One situation not explicitly covered in this section concerns ad hoc
transportation arranged, for instance, by a rail operator when the train
does not wind up at its intended destination. For example, an Amtrak
train bound for Philadelphia may be halted at Wilmington by a track
blockage between the two cities. Usually, the carrier responds by
providing bus service to the scheduled destination or to the next point
where rail service can resume.
The service that the carrier provides in this situation is
essentially a continuation by other means of its primary service. We
view the obligation of the rail operator as being to ensure that all
passengers, including individuals with disabilities, are provided
service to the destination in a nondiscriminatory manner. This
includes, for instance, providing service in the most integrated setting
appropriate to the needs of the individual and service that gets a
passenger with a disability to the destination as soon as other
passengers.
The ADA specifically defines ''public entity.'' Anything else is a
''private entity.'' The statute does not include in this definition a
private entity that receives a subsidy or franchise from a state or
local government or is regulated by a public entity. Only through the
definition of ''operates'' (see discussion of 37.23) do private
entities' relationships to public entities subject private entities to
the requirements for public entities. Consequently, in deciding which
provisions of the rule to apply to an entity in other than situations
covered by 37.23, the nature of the entity -- public or private -- is
determinative.
Transportation service provided by public accommodations is viewed as
being provided by private entities not primarily engaged in the business
of transporting people. Either the provisions of this Part applicable
to demand responsive or fixed route systems apply, depending on the
nature of a specific system at a specific location. The distinction
between fixed route and demand responsive systems is discussed in
connection with the definitions section above. It is the responsibility
of each private entity, in the first instance, to assess the nature of
each transportation system on a case-by-case basis and determine the
applicable rules.
On the other hand, conveyances used for recreational purposes, such
as amusement park rides, ski lifts, or historic rail cars or trolleys
operated in museum settings, are not viewed as transportation under this
rule at all. Other conveyances may fit into this category as well.
The criterion for determining what requirements apply is whether the
conveyances are primarily an aspect of the recreational experience
itself or a means of getting from Point A to Point B. At a theme park,
for instance, a large roller coaster (though a ''train'' of cars on a
track) is a public accommodation not subject to this rule; the tram
that transports the paying customers around the park, with a stop at the
roller coaster, is a transportation system subject to the ''private, not
primarily'' provisions of this part.
Employer-provided transportation for employees is not covered by this
Part, but by EEOC rules under title I of the ADA. (Public entities are
also subject to DOJ's title II rules with respect to employment.) This
exclusion from part 37 applies to transportation services provided by an
employer (whether access to motor pool vehicles, parking shuttles,
employer-sponsored van pools) that is made available solely to its own
employees. If an employer provides service to its own employees and
other persons, such as workers of other employers or customers, it would
be subject to the requirements of this Part from private entities not
primarily engaged in the business of transporting people or public
entities, as applicable.
The rule looks to the private entity actually providing the
transportation service in question in determining whether the ''private,
primarily'' or ''private, not primarily'' rules apply. For example,
Conglomerate, Inc., owns a variety of agribusiness, petrochemical,
weapons system production, and fast food corporations. One of its many
subsidiaries, Green Tours, Inc., provides charter bus service for people
who want to view National Parks, old-growth forests, and other
environmentally significant places. It is probably impossible to say in
what business Conglomerate, Inc. is primarily engaged, but it clearly
is not transporting people. Green Tours, Inc., on the other hand, is
clearly primarily engaged in the business of transporting people, and
the rule treats it as such.
On the other hand, when operating a transportation service off to the
side of to the main business of a public accommodation (e.g., a hotel
shuttle), the entity as a whole would be considered. Even if some
dedicated employees are used to provide the service, shuttles and other
systems provided as a means of getting to, from, or around a public
accommodation remain solidly in the ''private, not primarily'' category.
Section 37.41 contains the general requirement that all new
facilities constructed after January 25, 1992, be accessible to and
usable by individuals with disabilities. This provision tracks the
statute closely, and is analogous to a provision in the DOJ regulations
for private entities. Section 226 of the ADA provides little discretion
in this requirement.
The requirement is keyed to construction which ''begins'' after
January 25, 1992. The regulation defines ''begin'' to mean when a
notice to proceed order has been issued. This term has a standard
meaning in the construction industry, as an instruction to the
contractor to proceed with the work.
Questions have been raised concerning which standards apply before
January 26, 1992. There are Federal requirements that apply to all
recipients of federal money, depending on the circumstances.
First, if an entity is a Federal recipient and uses Federal dollars
to construct the facility, regulations implementing section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), require the recipient to
comply with the Uniform Federal Accessibility Standards.
Second, since the Civil Rights Restoration Act of 1987 (Pub. L.
100-259), an operation of a recipient of federal funds would also have
to comply with section 504, even though the activity was not paid for
with Federal funds. Thus, the Uniform Federal Accessibility Standards
would apply to this construction as well.
As mentioned above, the Department intends, in the period before
January 26, 1991, to view compliance with section 504 in light of
compliance with ADA requirements (this point applies to alterations as
well as new construction). Consequently, in reviewing requests for
grants, contract approvals, exemptions, etc., (whether with respect to
ongoing projects or new, experimental, or one-time efforts), the
Department will, as a policy matter, seek to ensure compliance with ADA
standards.
This section sets out the accessibility requirements that apply when
a public entity undertakes an alteration of an existing facility. In
general, the section requires that any alteration, to the maximum extent
feasible, results in the altered area being accessible to and usable by
individuals with disabilities, including persons who use wheelchairs.
The provisions follow closely those adopted by the DOJ, in its
regulations implementing title III of the ADA.
The section requires specific activities whenever an alteration of an
existing facility is undertaken.
First, if the alteration is made to a primary function area, (or
access to an area containing a primary function), the entity shall make
the alteration in such a way as to ensure that the path of travel to the
altered area and the restrooms, telephones and drinking fountains
servicing the altered area are readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs.
Second, alterations to drinking fountains, telephones, and restrooms
do not have to be completed if the cost and scope of making them
accessible is disproportionate.
Third, the requirement goes into effect for alterations begun after
January 25, 1992.
Fourth, the term ''maximum extent feasible'' means that all changes
that are possible must be made. The requirement to make changes to the
maximum extent feasible derives from clear legislative history. The
Senate Report states --
The phrase ''to the maximum extent feasible'' has been included to
allow for the occasional case in which the nature of an existing
facility is such as to make it virtually impossible to renovate the
building in a manner that results in its being entirely accessible to
and usable by individuals with disabilities. In all such cases,
however, the alteration should provide the maximum amount of physical
accessibility feasible.
Thus, for example the term ''to the maximum extent feasible'' should
be construed as not requiring entities to make building alterations that
have little likelihood of being accomplished without removing or
altering a load-bearing structural member unless the load-bearing
structural member is otherwise being removed or altered as part of the
alteration. (S. Rept. 101-116, at 68).
Fifth, primary function means a major activity for which the facility
is intended. Primary function areas include waiting areas, ticket
purchase and collection areas, train or bus platforms, baggage checking
and return areas, and employment areas (with some exceptions stated in
the rule, for areas used by service personnel that are very difficult to
access).
Sixth, ''path of travel'' means a continuous, unobstructed way of
pedestrian passage by means of which the altered area may be approached,
entered, and exited, and which connects the altered area with an
exterior approach and includes restrooms, telephones, and drinking
fountains serving the altered area. If changes to the path of travel
are disproportionate, then only those changes which are not
disproportionate are to be completed.
Seven, the final rule specifies that costs exceeding 20 percent would
be disproportionate. This is consistent with the DOJ. In determining
costs, the Department intends costs to be based on changes to the
passenger service area that is scheduled for alteration.
Finally, the Department has defined the term ''begin'', in the
context of begin an alteration that is subject to the alteration
provision to mean when a notice to proceed or work order is issued. Two
terms are used (instead of only notice to proceed in the context of new
construction) because many alterations may be carried out by the entity
itself, in which case the only triggering event would be a work order or
similar authorization to begin.
In looking at facility concepts like ''disproportionality'' and ''to
the maximum extent feasible,'' the Department will consider any expenses
related to accessibility for passengers. It is not relevant to consider
non-passenger related improvements (e.g., installing a new track bed) or
to permit ''gold-plating'' (attributing to accessibility costs the
expense of non-related improvements, such as charging to accessibility
costs the price of a whole new door, when only adding a new handle to
the old door was needed for accessibility).
These sections require that key stations in light, rapid, and
commuter rail systems be made accessible as soon as practicable, but no
later than July 26, 1993. Being made accessible, for this purpose,
means complying with the applicable provisions of appendix A to this
part. ''As soon as practicable'' means that, if modification can be
made before July 26, 1993, they must be. A rail operator that failed to
make a station accessible by July 1993 would be in noncompliance with
the ADA and this rule, except in a case where an extension of time had
been granted.
What is a key station? A key station is one designated as such by
the commuter authority or light/rapid rail operator, through the
planning process and public participation process set forth in this
section. The five criteria listed in the regulation are intended to
guide the selection process but, while the entity must take these
criteria into account (and this consideration must be reflected in the
planning process and documents), they are not mandatory selection
standards. That is, it is not required that every station that meets
one of the criteria be designated as a key station. Since the criteria
are not mandatory selection standards, the understanding of their terms
is also a matter appropriately left to the planning process. A tight,
legalistic definition is not necessary in the context of factors
intended for consideration. For instance, what constitutes a major
activity center or how close a station needs to be to another station to
not be designated as key depend largely on local factors that it would
not be reasonable to specify in this rule.
Given the wide discretion permitted to rail operators in identifying
key stations, there would be no objection to identifying as a key
station a new (presumably accessible) station now under construction.
Doing so would involve consideration of the key station criteria and
would be subject to the planning/public participation process.
If an extension to a rail system (e.g., a commuter system) is made,
such that the system comes to include existing inaccessible stations
that have not previously been part of the system, the Department
construes the ADA to require application of key station accessibility in
such a situation. The same would be true for a new start commuter rail
system that began operations using existing stations. Key station
planning, designation of key stations, and with being consistent with
the ADA would be required. The Department would work with the commuter
authority involved on a case-by-case basis to determine applicable time
limits for accessibility, consistent with the time frames of the ADA.
The entity must develop a compliance plan, subject to the public
participation and planning process set forth in paragraph (d) of each of
these sections. Note that this plan must be completed by July 26, 1992,
not January 26, 1992, as in the case of paratransit plans. The key
station plans must be submitted to UMTA at that time. (The statute does
not require UMTA approval of the plans, however.).
A rail operator may request an extension of the July 1993 completion
deadline for accessibility modifications to one or more key stations.
The extension for light and rapid rail stations can be up to July 2020,
though two thirds of the key stations (per the legislative history of
the statute, selected in a way to maximize accessibility to the whole
system) must be accessible by July 2010.
Commuter rail stations can be extended up to July 2010.
Requests for extension of time must be submitted by July 26, 1992.
UMTA will review the requests on a station-by-station basis according to
the statutory criterion, which is whether making the station accessible
requires extraordinarily expensive alterations. An extraordinarily
expensive alteration is raising the entire platform, installing an
elevator, or making another alteration of similar cost and magnitude.
If another means of making a station accessible (e.g., installation of a
mini-high platform in a station where it is not necessary to install an
elevator for to provide access to the platform for wheelchair users),
then an extension can be granted only if the rail operator shows that
the cost and magnitude of the alteration is similar in to that of an
elevator installation or platform raising.
The rule does not include a specific deadline for UMTA consideration
of an extension request. However, since we are aware that, in the
absence of an extension request, accessibility must be completed by July
1993, we will endeavor to complete review of plans as soon as possible,
to give as much lead time as possible to local planning and
implementation efforts.
Once an extension is granted, the extension applies to all
accessibility modifications in the station. However, the rail operator
should not delay non-extraordinarily expensive modifications to the
station. The key station plan and any extension request should include
a schedule for phasing in non-extraordinarily expensive modifications to
the station. For example, even if a key station is not going to be
accessible to wheelchair users for 15 years, pending the installation of
an elevator, the rail operator can improve its accessibility to persons
with visual impairments by installing tactile strips.
An extension cannot be granted except for a particular station which
needs an extraordinarily expensive modification. An extension cannot be
granted non-extraordinarily expensive changes to Station B because the
extraordinarily expensive changes to Station A will absorb many
resources. Non-extraordinarily expensive changes, however costly
considered collectively for a system, are not, under the statute,
grounds for granting an extension to one or more stations or the whole
system. Only particular stations where an extraordinarily expensive
modification must be made qualify for extensions.
The UMTA Administrator can approve, modify, or disapprove any request
for an extension. For example, it is not a forgone conclusion that a
situation for which an extension is granted will have the maximum
possible extension granted. If it appears that the rail operator can
make some stations accessible sooner, UMTA can grant an extension for a
shorter period (e.g., 2005 for a particular station rather than 2010).
This section sets forth a mechanism for determining who bears the
legal and financial responsibility for accessibility modifications to a
commuter and/or intercity rail station. The final provision of the
section is the most important. It authorizes all concerned parties to
come to their own agreement concerning the allocation of responsibility.
Such an agreement can allocate responsibility in any way acceptable to
the parties. The Department strongly encourages parties to come to such
an agreement.
In the absence of such an agreement, a statutory/regulatory scheme
allocates responsibility. In the first, and simplest, situation posed
by the statute, a single public entity owns more than 50 percent of the
station. In this case, the public entity is the responsible person and
nobody else is required to bear any of the responsibility.
In the second situation, a private entity owns more than 50 percent
of the station. The private entity need not bear any of the
responsibility for making the station accessible. A public entity owner
of the station, who does not operate passenger railroad service through
the station, is not required to bear any of the responsibility for
making the station accessible. The total responsibility is divided
between passenger railroads operating service through the station, on
the basis of respective passenger boardings. If there is only one
railroad operating service through the station, it bears the total
responsibility.
The Department believes that reference to passenger boardings is the
most equitable way of dividing responsibility among railroads, since the
number of people drawn to the station by each is likely to reflect
''cost causation'' quite closely. The Department notes, however, that,
as passenger boarding percentages change over time, the portion of
responsibility assigned to each party also may change. Station
modifications may involve long-term capital investment and planning,
while passenger boarding percentages are more volatile. Some railroads
may stop serving a station, while others may begin service, during the
period of time before modifications to the station are complete. To
help accommodate such situations, the rule refers to passenger boardings
''over the entire period during which the station is made accessible.''
This language is intended to emphasize that as circumstances change,
the parties involved have the responsibility to adjust their
arrangements for cost sharing. For example, suppose Railroad A has 30
percent of the passenger boardings in year 1, but by year 10 has 60
percent of the boardings. It would not be fair for Railroad A to pay
only 30 percent of the costs of station modifications occurring in later
years. Ultimately, the total cost burden for modifying the station over
(for example) 20 years would be allocated on the share of the total
number or boardings attributable to each railroad over the whole 20 year
period, in order to avoid such unfairness.
The third, and most complicated, situation is one in which no party
owns 50 percent of the station. For example, consider the following
hypothetical situation:
The private freight railroad drops out of the calculation of who is
responsible. All of the responsibility would be allocated among four
public entities: the city (a public entity who does not operate
railroad service), Amtrak, and the two commuter railroads. Half the
responsibility would go to public entity owners of the station (whether
or not they are railroads who run passenger service through the
station). The other half of the responsibility would go to railroads
who run passenger service through the station (whether or not they are
station owners).
On the ownership side of the equation, the city and Commuter A each
own half of that portion of the station that is not owned by the private
freight railroad. Therefore, the two parties divide up the ownership
half of the responsibility equally. Based on their ownership interest,
each of these two parties bears 25 percent of the responsibility for the
entire station. Note that, should ownership percentages or owners
change over the period during which the station is to be made
accessible, these percentages may change. It is ownership percentage
over this entire period that ultimately determines the percentage of
responsibility.
On the passenger rail operations side of the equation, 50 percent of
passenger boardings are attributable to Commuter A and 25 percent each
to Commuter B and Amtrak. Therefore, half of this portion of the
responsibility belongs to Commuter A, while a quarter share each goes to
the other railroads. This means that, based on passenger boardings, 25
percent of the responsibility goes to Commuter A, 12.5 percent to
Commuter B, and 12.5 percent to Amtrak. Again, it is the proportion of
passenger boardings over the entire length of the period during which
the station is made accessible that ultimately determines the percentage
of responsibility.
In this hypothetical, Commuter A is responsible for a total of 50
percent of the responsibility for the station. Commuter A is
responsible for 25 percent of the responsibility because of its role as
a station owner and another 25 percent because of its operation of
passenger rail service through the station.
The Department recognizes that there will be situations in which
application of this scheme will be difficult (e.g., involving problems
with multiple owners of a station whose ownership percentages may be
difficult to ascertain). The Department again emphasizes that agreement
among the parties is the best way of resolving these problems, but we
are willing to work with the parties to ensure a solution consistent
with this rule.
Consistent with the legislative history of the ADA, this section
formally recognizes the selection of key stations in two identified
litigation settlement agreements in New York and Philadelphia as in
compliance with the ADA. Consequently, the entities involved can limit
their key station planning process to issues concerning the timing of
key station accessibility. The section references also 37.9, which
provides that key station accessibility alterations which have already
been made, or which are begun before January 26, 1992, and which conform
to specified prior standards, do not have to be re-modified. On the
other hand, alterations begun after January 25, 1992 (including
forthcoming key station modifications under the New York and
Philadelphia agreements), must meet the requirements of appendix A to
this part.
This is an exception only for the two specified agreements. There
are no situations in which other cities can take advantage of this
provision. Nor are the provisions of the two agreements normative for
other cities. Other cities must do their own planning, with involvement
from local citizens, and cannot rely on agreements unique to New York
and Philadelphia to determine the appropriate number of percentage of
key stations or other matters.
This section implements 242(e)(2)(C) of the ADA, which treats as
discrimination a failure, by an owner or person in control of an
intercity rail station, to provide reasonable cooperation to the
responsible persons' efforts to comply with accessibility requirements.
For example, the imposition by the owner of an unreasonable insurance
bond from the responsible person as a condition of making accessibility
modifications would violate this requirement. See H. Rept. 101-485 at
53.
The statute also provides that failure of the owner or person in
control to cooperate does not create a defense to a discrimination suit
against the responsible person, but the responsible person would have a
third party action against the uncooperative owner or person in control.
The rule does not restate this portion of the statute in the
regulation, since it would be implemented by the courts if such an
action is brought. Since cooperation is also a regulatory requirement,
however, the Department could entertain a section 504 complaint against
a recipient of Federal funds who failed to cooperate.
The House Energy and Commerce Committee provided as an example of an
action under this provision a situation in which a failure to cooperate
leads to a construction delay, which in turn leads to a lawsuit by an
individual with disabilities against the responsible person for missing
an accessibility deadline. The responsible person could not use the
lack of cooperation as a defense in the lawsuit, but the uncooperative
party could be made to indemnify the responsible person for damages
awarded the plaintiff. Also, a responsible person could obtain an
injunction to force the recalcitrant owner or controller of the station
to permit accessibility work to proceed. (Id.)
This provision does not appear to be intended to permit a responsible
person to seek contribution for a portion of the cost of accessibility
work from a party involved with the station whom the statute and 37.49
do not identify as a responsible person. It simply provides a remedy
for a situation in which someone impedes the responsible person's
efforts to comply with accessibility obligations.
Portions of the same station may have different accessibility
completion date requirements, both as the result of different statutory
time frames for different kinds of stations and individual decisions
made on requests for extension. The principle at work in responding to
such situations is that if part of a station may be made accessible
after another part, the ''late'' part of the work should not get in the
way of people's use of modifications resulting from the ''early'' part.
For example, the commuter part of a station may have to be made
accessible by July 1993 (e.g., there is no need to install an elevator,
and platform accessibility can be achieved by use of a relatively
inexpensive mini-high platform). The Amtrak portion of the same
station, by statute, is required to be accessible as soon as
practicable, but no later than July 2010. If there is a common entrance
to the station, that commuter rail passengers and Amtrak passengers both
use, or a common ticket counter, it would have to be accessible by July
1993. If there were a waiting room used by Amtrak passengers but not
commuter passengers (who typically stand and wait on the platform at
this station), it would not have to be accessible by July 1993, but if
the path from the common entrance to the commuter platform went through
the waiting room, the path would have to be an accessible path by July
1993.
This section implements section 228(a) of the ADA and establishes the
general requirement for entities to operate their transportation
facilities in a manner that, when viewed in its entirety, is accessible
to and usable by individuals with disabilities. The section clearly
excludes from this requirement access by persons in wheelchairs, unless
these changes would be necessitated by the alterations or key station
provisions.
This provision is intended to cover activities and programs of an
entity that do not rise to the level of alteration. Even if an entity
is not making alterations to a facility, it has a responsibility to
conduct its program in an accessible manner. Examples of possible
activities include user friendly farecards, schedules, of edge detection
on rail platforms, adequate lighting, telecommunication display devices
(TDDs) or text telephones, and other accommodations for use by persons
with speech and hearing impairments, signage for people with visual
impairments, continuous pathways for persons with visual and ambulatory
impairments, and public address systems and clocks.
The Department did not prescribe one list of things that would be
appropriate for all stations. For example, we believe that tactile
strips are a valuable addition to platforms which have drop-offs. We
also believe that most larger systems, to the extent they publish
schedules, should make those schedules readily available in alternative
formats. We encourage entities to find this another area which benefits
from its commitment to far-reaching public participation efforts.
This section sets out the basic acquisition requirements for a public
entity purchasing a new vehicle. Generally, the section requires any
public entity who purchases or leases a new vehicle to acquire an
accessible vehicle. There is a waiver provision if lifts are
unavailable and these provisions track the conditions in the ADA. One
statutory condition, that the public entity has made a good faith effort
to locate a qualified manufacturer to supply the lifts, presumes a
direct relationship between the transit provider and the lift
manufacturer. In fact, it is the bus manufacturer, rather than the
transit provider directly, who would have the task of looking for a
supplier of lifts to meet the transit provider's specifications. The
task must still be performed, but the regulation does not require the
transit provider to obtain actual information about available lifts.
Rather the bus manufacturer obtains the information and provides this
assurance to the entity applying for the waiver, and the entity may rely
on this representation. More specifically, the regulation requires that
each waiver request must include a copy of the written solicitation
(showing that it requested lift-equipped vehicles) and written responses
from lift manufacturers to the vehicle manufacturer documenting their
inability to provide the lifts. The information from the lift
manufacturer must also include when the lifts will be available.
In addition, the waiver request must include copies of advertisements
in trade publications and inquiries to trade associations seeking lifts
for the buses. The public entity also must include a full justification
for the assertion that a delay in the bus procurement sufficient to
obtain a lift-equipped bus would significantly impair transportation
services in the community. There is no length of time that would be a
per se delay constituting a ''significant impairment''. It will be more
difficult to obtain a waiver if a relatively short rather than
relatively lengthy delay is involved. A showing of timetables, absent a
showing of significant impairment of actual transit services, would not
form a basis for granting a waiver.
Any waiver granted by the Department under this provision will be a
conditional waiver. The conditions are intended to ensure that the
waiver provision does not create a loophole in the accessible vehicle
acquisition requirement that Congress intended to impose. The ADA
requires a waiver to be limited in duration and the rule requires a
termination date to be included. The date will be established on the
basis of the information the Department receives concerning the
availability of lifts in the waiver request and elsewhere. In addition,
so that a waiver does not become open-ended, it will apply only to a
particular procurement. If a transit agency wants a waiver for a
subsequent delivery of buses in the procurement, or another procurement
entirely, it will have to make a separate waiver request.
For example, if a particular order of buses is delivered over a
period of time, each delivery would be the potential subject of a waiver
request. First, the entity would request a waiver for the first
shipment of buses. If all of the conditions are met, the waiver would
be granted, with a date specified to coincide with the due date of the
lifts. When the lifts become available those buses would have to be
retrofitted with the lifts. A subsequent delivery of buses -- on the
same order -- would have to receive its own waiver, subject to the same
conditions and specifications of the first waiver.
The purpose of the waiver, as the Department construes it, is to
address a situation in which (because of a sudden increase in the number
of lift-equipped buses requested) lift manufacturers are unable to
produce enough lifts to meet the demand in a timely fashion.
The basic rule is that an acquisition of a used vehicle would have to
be for an accessible vehicle.
There is an exception, however, for situations in which the transit
provider makes a good faith effort to obtain accessible used vehicles
but does not succeed in finding them. The ADA requires transit agencies
to purchase accessible used vehicles, providing a ''demonstrated good
faith efforts'' exception to the requirement. The reports of the Senate
Committee on Labor and Human Resources and the House Committee on
Education and Labor offered the following guidance on what ''good faith
efforts'' involve:
The phrase ''demonstrated good faith efforts'' is intended to require
a nationwide search and not a search limited to a particular region.
For instance, it would not be enough for a transit operator to contact
only the manufacturer where the transit authority usually does business
to see if there are accessible used buses. It involves the transit
authority advertising in a trade magazine, i.e., Passenger Transport, or
contacting the transit trade association, American Public Transit
Association (APTA), to determine whether accessible used vehicles are
available. It is the Committee's expectation that as the number of
buses with lifts increases, the burden on the transit authority to
demonstrate its inability to purchase accessible vehicles despite good
faith efforts will become more and more difficult to satisfy. S.Rept.
101-116 at 49; H.Rept. 101-485 at 90.
Consistent with this guidance, this section requires that good faith
efforts include specifying accessible vehicles in bid solicitations.
The section also requires that the entity retain for two years
documentation of that effort, and that the information be available to
UMTA and the public.
It does not meet the good faith efforts requirement to purchase
inaccessible, rather than accessible, used buses, just because the
former are less expensive, particularly if the difference is a
difference attributable to the presence of a lift. There may be
situations in which good faith efforts involve buying fewer accessible
buses in preference to more inaccessible buses.
The public participation requirements involved in the development of
the paratransit plans for all fixed route operators requires an ongoing
relationship, including extensive outreach, to the community likely to
be using its accessible service. We believe that it will be difficult
to comply with the public participation requirements and not involve the
affected community in the decisions concerning the purchase or lease of
used accessible vehicles.
There is an exception to these requirements for donated vehicles.
Not all ''zero dollar'' transfers are donations, however. The
legislative history to this provision provides insight.
It is not the Committee's intent to make the vehicle accessibility
provisions of this title applicable to vehicles donated to a public
entity. The Committee understands that it is not usual to donate
vehicles to a public entity. However, there could be instances where
someone could conceivably donate a bus to a public transit operator in a
will. In such a case, the transit operators should not be prevented
from accepting a gift.
The Committee does not intend that this limited exemption for donated
vehicles be used to circumvent the intent of the ADA. For example, a
local transit authority could not arrange to be the recipient of donated
inaccessible buses. This would be a violation of the ADA. S. Rpt.
101-116, at 46; H. Rpt. 101-486, at 87.
Entities interested in accepting donated vehicles must submit a
request to UMTA to verify that the transaction is a donation.
There is one situation, in which a vehicle has prior use is not
treated as a used vehicle. If a vehicle has been remanufactured, and it
is within the period of the extension of its useful life, it is not
viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27). During
this period, such a vehicle may be acquired by another entity without
going through the good faith efforts process. This is because, at the
time of its remanufacture, the bus would have been made as accessible if
feasible. When the vehicle has completed its extended useful life
(e.g., the beginning of year six when its useful life has extended five
years), it becomes subject to used bus requirements.
This section tracks the statute closely, and contains the following
provisions. First, it requires any public entity operating a fixed
route system to purchase an accessible vehicle if the acquisition occurs
after August 25, 1990, if the vehicle is remanufactured after August 25,
1990, or the entity contracts or undertakes the remanufacture of a
vehicle after August 25, 1990. The ADA legislative history makes it
clear that remanufacture is to include changes to the structure of the
vehicle which extend the useful life of the vehicle for five years. It
clearly is not intended to capture things such as engine overhauls and
the like.
The term remanufacture, as used in the ADA context, is different from
the use of the term in previously issued UMTA guidance. The term has a
specific meaning under the ADA: there must be structural work done to
the vehicle and the work must extend the vehicle's useful life by five
years.
The ADA imposes no requirements on what UMTA traditionally considers
bus rehabilitation. Such work involves rebuilding a bus to original
specifications and focuses on mechanical systems and interiors. Often
this work includes replacing components. It is less extensive than
remanufacture.
The statute, and the rule, includes an exception for the
remanufacture of historical vehicles. This exception applies to the
remanufacture of or purchase of a remanufactured vehicle that (1) is of
historic character; (2) operates solely on a segment of a fixed route
system which is on the National Register of Historic Places; and (3)
making the vehicle accessible would significantly alter the historic
character of the vehicle. The exception only extends to the
remanufacture that would alter the historic character of the vehicle.
All modifications that can be made without altering the historic
character (such as slip resistant flooring) must be done.
Section 224 of the ADA requires that a public entity operating a
demand responsive system purchase or lease accessible new vehicles, for
which a solicitation is made after August 25, 1990, unless the system,
when viewed in its entirety, provides a level of service to individuals
with disabilities, including individuals who use wheelchairs, equivalent
to the level of service provided to individuals without disabilities.
This section is the same as the October 4, 1990 final rule which
promulgated the immediately effective acquisition requirements of the
ADA.
The Department has been asked to clarify what ''accessible when
viewed in its entirety'' means in the context of a demand responsive
system being allowed to purchase an inaccessible vehicle. First, it is
important to note that this exception applies only to demand responsive
systems (and not fixed route systems). The term ''equivalent service''
was discussed during the passage of the ADA. Material from the
legislative history indicates that ''when viewed in its
entirety/equivalent service'' means that ''when all aspects of a
transportation system are analyzed, equal opportunities for each
individual with a disability to use the transportation system must
exist. (H. Rept. 101-184, Pt. 2, at 95; S. Rept. 101-116 at 54). For
example, both reports said that ''the time delay between a phone call to
access the demand responsive system and pick up the individual is not
greater because the individual needs a lift or ramp or other
accommodation to access the vehicle.'' (Id.)
Consistent with this, the Department has specified certain service
criteria that are to be used when determining if the service is
equivalent. As in previous rulemakings on this provision, the standards
(which include service area, response time, fares, hours and days of
service, trip purpose restrictions, information and reservations
capability, and other capacity constraints) are not absolute standards.
They do not say, for example, that a person with a disability must be
picked up in a specified number of hours. The requirement is that there
must be equivalent service for all passengers, whether or not they have
a disability. If the system provides service to persons without
disabilities within four hours of a call for service, then passengers
with disabilities must be afforded the same service.
The Department has been asked specifically where an entity should
send its ''equivalent level of service'' certifications. We provide the
following: Equivalent level of service certifications should be
submitted to the state program office if you are a public entity
receiving UMTA funds through the state. All other entities should
submit their equivalent level of service certifications to the UMTA
regional office (listed in appendix B of this part). Certifications
must be submitted before the acquisition of the vehicles.
Paragraph (e) of this section authorizes a waiver for the
unavailability of lifts. Since demand responsive systems need not
purchase accessible vehicles if they can certify equivalent service, the
Department has been asked what this provision is doing in this section.
Paragraph (e) applies in the case in which an entity operates a
demand responsive system, which is not equivalent, and the entity cannot
find accessible vehicles to acquire. In this case, the waiver
provisions applicable to a fixed route entity purchasing or leasing
inaccessible new vehicles applies to the demand responsive operator as
well.
This section echoes the requirement of 37.71 -- all new rail cars
must be accessible.
This section lays out the requirements for a public entity acquiring
a used rail vehicle. The requirements and standards are the same as
those specified for non-rail vehicles in 37.73. While we recognize it
may create difficulties for entities in some situations, the statute
does not include any extension or short-term leases. The Department
will consider, in a case-by-case basis, how the good faith efforts
requirement would apply in the case of an agreement between rail
carriers to permit quick-response, short-term leases of cars over a
period of time.
This section parallels the remanufacturing section for buses,
including the exception for historical vehicles. With respect to an
entity having a class of historic vehicles that may meet the standards
for the historic vehicle exception (e.g., San Francisco cable cars), the
Department would not object to a request for application of the
exception on a system-wide, as approved to car-by-car, basis.
This section incorporates the statutory requirement that new
intercity and commuter rail cars be accessible. The specific
accessibility provisions of the statute (for example, there are slightly
different requirements for intercity rail cars versus commuter rail
cars) are specified in part 38 of this regulation. These standards are
adopted from the voluntary guidelines issues by the Access Board. The
section basically parallels the acquisition requirements for buses and
other vehicles. It should be noted that the definition of commuter rail
operator clearly allows for additional operators to qualify as commuter,
since the definition describes the functional characteristics of an
operator, as well as listing existing commuter rail operators.
We would point out that the ADA applies this requirement to all new
vehicles. This includes not only vehicles and systems that currently
are being operated in the U.S., but new, experimental, or imported
vehicles and systems. The ADA does not stand in the way of new
technology, but it does require that new technology, and the benefits it
brings, be accessible to all persons, including those with disabilities.
This point applies to all vehicle acquisition provisions of this
regulation, whether for rail or non-rail, private or public, fixed route
or demand responsive vehicles and systems.
The section also parallels closely the requirements in the ADA for
the purchase or lease of accessible used rail vehicles. We acknowledge
that, in some situations, the statutory requirement for to make good
faith efforts to acquire accessible used vehicles may create
difficulties for rail operators attempting to lease rail cars quickly
for a short time (e.g., as fill-ins for cars which need repairs). In
some cases, it may be possible to mitigate these difficulties through
means such as making good faith efforts with respect to an overall
agreement between two rail operators to make cars available to one
another when needed, rather than each time a car is provided under such
an agreement.
This section requires generally that remanufactured cars be made
accessible, to the maximum extent feasible. Feasible is defined in
paragraph (c) of the section to be ''unless an engineering analysis
demonstrates that remanufacturing the car to be accessible would have a
significant adverse effect on the structural integrity of the car.''
Increased cost is not a reason for viewing other sections of this
subpart concerning remanufactured vehicles.
In addition, this section differs from the counterpart sections for
non-rail vehicles and light and rapid rail vehicles in two ways. First,
the extension of useful life needed to trigger the section is ten rather
than five years. Second, there is no historic vehicle exception. Both
of these differences are statutory.
Remanufacture of vehicles implies work that extends their expected
useful life of the vehicle. A mid-life overhaul, not extending the
total useful life of the vehicle, would not be viewed as a remanufacture
of the vehicle.
This section implements the statutory directive that all rail
operators (light, rapid, commuter and intercity) have at least one car
per train accessible to persons with disabilities, including individuals
who use wheelchairs by July 26, 1995. (See ADA sections 242(a)(1),
242(b)(1), 228(b)(1).) Section 37.93 contains this general requirement.
In some cases, entities will meet the one-car-per train rule through the
purchase of new cars. In this case, since all new rail vehicles have to
be accessible, compliance with this provision is straightforward.
However, certain entities may not be purchasing any new vehicles by
July 26, 1995, or may not be purchasing enough vehicles to ensure that
one car per train is accessible. In these cases, these entities will
have to retrofit existing cars to meet this requirement. What a
retrofitted car must look like to meet the requirement has been decided
by the Access Board. These standards are contained in part 38 of this
rule.
We would point that, consistent with the Access Board standards, a
rail system using mini-high platforms or wayside lifts is not required,
in most circumstances, to ''double-stop'' in order to give passengers a
chance to board the second or subsequent car in a train at the mini-high
platform or way-side lift. The only exception to this would be a
situation in which all the wheelchair positions spaces in the first car
were occupied. In this case, the train would have to double-stop to
allow a wheelchair user to board, rather than passing the person by when
there was space available in other than the first car.
Although at this time there are no specific requirements for vessels,
ferries and other passenger vessels operated by public entities are
subject to the requirements of 37.5 of this part and applicable
requirements of 28 CFR part 35, the DOJ rule under title II of the ADA.
The first two sections spell out the distinctions among the different
types of service elaborated in the ADA and requirements that apply to
them. For clarity, we provide the following chart.
Equivalency, for purposes of these requirements, is spelled out in
37.105. It is important to note that some portions of this section
(referring to response time, reservations capacity, and restrictions on
trip purpose) apply only to demand responsive systems. Another
provision (schedules/headways) applies only to fixed route systems.
This is because these points of comparison apply only to one or the
other type system. The remaining provisions apply to both kinds of
systems.
In applying the provisions this section, it is important to note that
they are only points of comparison, not substantive criteria. For
example, unlike the response time criterion of 37.131, this section
does not require that a system provide any particular response time.
All it says is that, in order for there to be equivalency, if the demand
responsive system gets a van to a non-disabled person in 2 hours, or 8
hours, or a week and a half after a call for service, the system must
get an accessible van to a person with a disability in 2 hours, or 8
hours, or a week and a half.
The vehicle acquisition and equivalency provisions work together in
the following way. A private entity is about to acquire a vehicle for a
transportation service in one of the categories to which equivalency is
relevant. The entity looks at its present service (considered without
regard to the vehicle it plans to acquire). Does the present service
meet the equivalency standard? (In answering this question, the point
of reference is the next potential customer who needs an accessible
vehicle. The fact that such persons have not called in the past is
irrelevant). If not, the entity is required to acquire an accessible
vehicle. If so, the entity may acquire an accessible or an inaccessible
vehicle. This process must be followed every time the entity purchases
or leases a vehicle. Given changes in the mixes of both customers and
vehicles, the answer to the question about equivalency will probably not
be the same for an entity every time it is asked.
One difference between the requirements for ''private, not
primarily'' and ''private, primarily'' entities is that the requirements
apply to all vehicles purchased or leased for the former, but only to
new vehicles for the latter. This means that entities in the latter
category are not required to acquire accessible vehicles when they
purchase or lease used vehicles. Another oddity in the statute which
entities should note is that the requirement for ''private, primarily''
entities to acquire accessible vans with less than eight passenger
capacity (or provide equivalent service) does not become effective until
after February 25, 1992 (This also date also applies no private entities
''primarily engaged'' which purchase passenger rail cars). All other
vehicle acquisition requirements became effective after August 25, 1990.
The Department views the line between ''private, primarily'' and
''private, not primarily'' entities as being drawn with respect to the
bus, van, or other service which the entity is providing. For example,
there is an obvious sense in which an airline or car rental company is
primarily engaged in the business of transporting people. If the
airline or car rental agency runs a shuttle bus from the airport
terminal to a downtown location or a rental car lot, however, the
Department views that shuttle service as covered by the ''private, not
primarily'' requirements of the rule (see discussion of the
Applicability sections above). This is because the airline or car
rental agency is not primarily engaged in the business of providing
transportation by bus or van. The relationship of the bus or van
service to an airline's main business is analogous to that of a shuttle
to a hotel. For this purpose, it is of only incidental interest that
the main business of the airline is flying people around the country
instead of putting them up for the night.
Although at this time there are no specific requirements for vessels,
ferries and other passenger vessels operated by private entities are
subject to the requirements of 37.5 of this part and applicable
requirements of 28 CFR part 36, the DOJ rule under title III of the ADA.
This section sets forth the basic requirement that all public
entities who operate a fixed route system have to provide paratransit
service that is both comparable and complementary to the fixed route
service. By ''complementary,'' we mean service that acts as a ''safety
net'' for individuals with disabilities who cannot use the fixed route
system. By ''comparable,'' we mean service that meets the service
criteria of this subpart.
This requirement applies to light and rapid rail systems as well as
to bus systems, even when rail and bus systems share all or part of the
same service area. Commuter bus, commuter rail and intercity rail
systems do not have to provide paratransit, however. The remaining
provisions of subpart F set forth the details of the eligibility
requirements for paratransit, the service criteria that paratransit
systems must meet, the planning process involved, and the procedures for
applying for waivers based on undue financial burden.
Paratransit may be provided by a variety of modes. Publicly operated
dial-a-ride vans, service contracted out to a private paratransit
provider, user-side subsidy programs, or any combination of these and
other approaches is acceptable. Entities who feel it necessary to apply
for an undue financial burden waiver should be aware that one of the
factors UMTA will examine in evaluating waiver requests is efficiencies
the provider could realize in its paratransit service. Therefore, it is
important for entities in this situation to use the most economical and
efficient methods of providing paratransit they can devise.
It is also important for them to establish and consistently implement
strong controls against fraud, waste and abuse in the paratransit
system. Fraud, waste and abuse can drain significant resources from a
system and control of these problems is an important ''efficiency for
any paratransit system. It will be difficult for the Department to
grant an undue financial burden waiver to entities which do not have a
good means of determining if fraud, waste and abuse are problems and
adequate methods of combating these problems, where they are found to
exist.
This section sets forth the minimum requirements for eligibility for
complementary paratransit service. All fixed route operators providing
complementary paratransit must make service available at least to
individuals meeting these standards. The ADA does not prohibit
providing paratransit service to anyone. Entities may provide service
to additional persons as well. Since only service to ADA eligible
persons is required by the rule, however, only the costs of this service
can be counted in the context of a request for an undue financial burden
waiver.
When the rule says that ADA paratransit eligibility shall be strictly
limited to persons in the eligible categories, then, it is not saying
that entities are in any way precluded from serving other people. It is
saying that the persons who must be provided service, and counting the
costs of providing them service, in context of an undue burden waiver,
are limited to the regulatory categories.
Eligibility may be based on a temporary as well as a permanent
disability. The individual must meet one of the three eligibility
criteria in any case, but can do so for a limited period of time. For
example, if an individual breaks both legs and is in two casts for
several weeks, becomes a wheelchair user for the duration, and the bus
route that would normally take him to work is not accessible, the
individual could be eligible under the second eligibility category. In
granting eligibility to such a person, the entity should establish an
expiration date for eligibility consistent with the expected end of the
period disability.
A person may be ADA paratransit eligible for some trips but not
others. Eligibility does not inhere in the individual or his or her
disability, as such, but in meeting the functional criteria of inability
to use the fixed route system established by the ADA. This inability is
likely to change with differing circumstances.
For example, someone whose impairment-related condition is a severe
sensitivity to temperatures below 20 degrees is not prevented from using
fixed route transit when the temperature is 75 degrees. Someone whose
impairment-related condition is an inability to maneuver a wheelchair
through snow is not prevented from using fixed route transit when there
is no snow on the ground. Someone with a cognitive disability may have
learned to take the same bus route to a supported employment job every
day. This individual is able to navigate the system for work purposes
and therefore would not be eligible for paratransit for work trips. But
the individual may be unable to get to other destinations on the bus
system without getting lost, and would be eligible for paratransit for
non-work trips. Someone who normally drives his own car to a rail
system park and ride lot may have a specific impairment related
condition preventing him from getting to the station when his car is in
the shop. A person who can use accessible fixed route service can go to
one destination on an accessible route; another destination would
require the use of an inaccessible route. The individual would be
eligible for the latter but not the former.
In many cases, though the person is eligible for some trips but not
others, eligibility determinations would not have to be made literally
on a trip-by-trip basis. It may often be possible to establish the
conditions on eligibility as part of the initial eligibility
determination process. Someone with a temperature sensitivity might be
granted seasonal eligibility. Somebody who is able to navigate the
system for work but not non-work trips could have this fact noted in his
or her eligibility documentation. Likewise, someone with a variable
condition (e.g., multiple sclerosis, HIV disease, need for kidney
dialysis) could have their eligibility based on the underlying
condition, with paratransit need for a particular trip dependent on
self-assessment or a set of medical standards (e.g., trip within a
certain amount of time after a dialysis session). On the other hand,
persons in the second eligibility category (people who can use
accessible fixed route service where it exists) would to be given
service on the basis of the particular route they would use for a given
trip.
Because entities are not precluded from providing service beyond that
required by the rule, an entity that believes it is too difficult to
administer a program of trip-by-trip eligibility is not required to do
so. Nothing prevents an entity from providing all requested trips to a
person whom the ADA requires to receive service for only some trips. In
this case, if the entity intends to request an undue financial burden
waiver, the entity, as provided in the undue burden provisions of this
rule, must estimate, by a statistically valid technique, the percentage
of its paratransit trips that are mandated by the ADA. Only that
percentage of its total costs will be counted in considering the undue
burden waiver request.
The first eligibility category includes, among others, persons with
mental or visual impairments who, as a result, cannot ''navigate the
system.'' This eligibility category includes people who cannot board,
ride, or disembark from an accessible vehicles ''without the assistance
of another individual.'' This means that, if an individual needs an
attendant to board, ride, or disembark from an accessible fixed route
vehicles (including ''navigating the system''), the individual is
eligible for paratransit. One implication of this language is that an
individual does not lose paratransit eligibility based on ''inability to
navigate the system'' because the individual chooses to travel with a
friend on the paratransit system (even if the friend could help the
person navigate the fixed route system). Eligibility in this category
is based on ability to board, ride, and disembark independently.
Mobility training (e.g., of persons with mental or visual
impairments) may help to improve the ability of persons to navigate the
system or to get to a bus stop. Someone who is successfully mobility
trained to use the fixed route system for all or some trips need not be
provided paratransit service for those trips. The Department encourages
entities to sponsor such training as a means of assisting individuals to
use fixed route rather than paratransit.
The second eligibility criterion is the broadest, with respect to
persons with mobility impairments, but its impact should be reduced over
time as transit systems become more accessible. This category applies
to persons who could use accessible fixed route transportation, but
accessible transportation is not being used at the time, and on the
route, the persons would travel. This concept is route based, not
system based.
Speaking first of bus systems, if a person is traveling from Point A
to Point B on route 1, and route 1 is accessible, the person is not
eligible for paratransit for the trip. This is true even though other
portions of the system are still inaccessible. If the person is
traveling from Point A to Point C on route 2, which is not accessible,
the person is eligible for that trip. If the person is traveling from
point A to Point B on accessible route 1, with a transfer at B to go on
inaccessible route 3 to Point D, then the person is eligible for the
second leg of the trip. (The entity could choose to provide a
paratransit trip from A to D or a paratransit or on-call bus trip from B
to D.)
For purposes of this standard, we view a route as accessible when all
buses scheduled on the route are accessible. Otherwise, it is unlikely
that an accessible vehicle could be provided ''within a reasonable
period of (a) time'' when the individual wants to travel, as the
provision requires. We recognize that some systems' operations may not
be organized in a way that permits determining whether a given route is
accessible, even though a route-by-route determination appears to be
contemplated by the statute. In such cases, it may be that category 2
eligibility would persist until the entire system was eligible.
With respect to a rail system, an individual is eligible under this
standard if, on the route or line he or she wants to use, there is not
yet one car per train accessible or if key stations are not yet
accessible. This eligibility remains even if bus systems covering the
area served by the rail system have become 100 percent accessible. This
is necessary because people use rail systems for different kinds of
trips than bus systems. It would often take much more in the way of
time, trouble, and transfers for a person to go on the buses of one or
more transit authorities than to have a direct trip provided by the rail
operator. Since bus route systems are often designed to feed rail
systems rather than duplicate them, it may often be true that '' you
can't get there from here'' relying entirely on bus routes or the
paratransit service area that parallels them.
If the lift on a vehicle cannot be deployed at a particular stop, an
individual is eligible for paratransit under this category with respect
to the service to the inaccessible stop. If on otherwise accessible
route 1, an individual wants to travel from Point A to Point E, and the
lift cannot be deployed at E, the individual is eligible for paratransit
for the trip. (On-call bus would not work as a mode of providing this
trip, since a bus lift will not deploy at the stop.) This is true even
though service from Point A to all other points on the line is fully
accessible. In this circumstance, the entity should probably think
seriously about working with the local government involved to have the
stop moved or made accessible.
When we say that a lift cannot be deployed, we mean literally that
the mechanism will not work at the location to permit a wheelchair user
or other person with a disability to disembark or that the lift will be
damaged if it is used there. It is not consistent with the rule for a
transit provider to declare a stop off-limits to someone who uses the
lift while allowing other passengers to use the stop. However, if
temporary conditions not under the operator's control (e.g.,
construction, an accident, a landslide) make it so hazardous for anyone
to disembark that the stop is temporarily out of service for all
passengers may the operator refuse to allow a passenger to disembark
using the lift.
The third eligibility criterion concerns individuals who have a
specific impairment-related condition which prevents them from getting
to or from a stop or station. As noted in the legislative history of
the ADA, this is intended to be a ''very narrow exception'' to the
general rule that difficulty in traveling to or from boarding or
disembarking locations is not a basis for eligibility.
What is a specific impairment-related condition? The legislative
history mentions four examples: Chronic fatigue, blindness, a lack of
cognitive ability to remember and follow directions, or a special
sensitivity to temperature. Impaired mobility, severe communications
disabilities (e.g., a combination of serious vision and hearing
impairments), cardiopulmonary conditions, or various other serious
health problems may have similar effects. The Department does not
believe that it is appropriate, or even possible, to create an
exhaustive list.
What the rule uses as an eligibility criterion is not just the
existence of a specific impairment-related condition. To be a basis for
eligibility, the condition must prevent the individual from traveling to
a boarding location or from a disembarking location. The word
''prevent'' is very important. For anyone, going to a bus stop and
waiting for a bus is more difficult and less comfortable than waiting
for a vehicle at one's home. This is likely to be all the more true for
an individual with a disability. But for many persons with
disabilities, in many circumstances, getting to a bus stop is possible.
If an impairment related condition only makes the job of accessing
transit more difficult than it might otherwise be, but does not prevent
the travel, then the person is not eligible.
For example, in many areas, there are not yet curb cuts. A
wheelchair user can often get around this problem by taking a less
direct route to a destination than an ambulatory person would take.
That involves more time, trouble, and effort than for someone without a
mobility impairment. But the person can still get to the bus stop. On
the basis of these architectural barriers, the person would not be
eligible.
Entities are cautioned that, particularly in cases involving lack of
curb cuts and other architectural barrier problems, assertions of
eligibility should be given tight scrutiny. Only if it is apparent from
the facts of a particular case that an individual cannot find a
reasonable alternative path to a location should eligibility be granted.
If we add a foot of snow to the scenario, then the same person taking
the same route may be unable to get to the bus stop. If is not the snow
alone that stops him; it is the interaction of the snow and the fact
that the individual has a specific-impairment related condition that
requires him to push a wheelchair through the snow that prevents the
travel.
Inevitably, some judgment is required to distinguish between
situations in which travel is prevented and situations in which it is
merely made more difficult. In the Department's view, a case of
''prevented travel'' can be made not only where travel is literally
impossible (e.g., someone cannot find the bus stop, someone cannot push
a wheelchair through the foot of snow or up a steep hill) but also where
the difficulties are so substantial that a reasonable person with the
impairment-related condition in question would be deterred from making
the trip.
The regulation makes the interaction between an impairment-related
condition and the environmental barrier (whether distance, weather,
terrain, or architectural barriers) the key to eligibility
determinations. This is an individual determination. Depending on the
specifics of their impairment-related condition, one individual may be
able to get from his home to a bus stop under a given set of conditions,
while his next-door neighbor may not.
The ADA requires entities to provide paratransit to one person
accompanying the eligible individual, with others served on a
space-available basis. The one individual who is guaranteed space on
the vehicle can be anyone -- family member, business associate, friend,
date, etc. The provider cannot limit the eligible individual's choice
of type of companion. The transit authority may require that the
eligible individual reserve a space for the companion when the
individual reserves his or her own ride. This one individual rides even
if this means that there is less room for other eligible individuals.
Additional individuals beyond the first companion are carried only on a
space available basis; that is, they do not displace other ADA
paratransit eligible individuals.
A personal care attendant (i.e., someone designated or employed
specifically to help the eligible individual meet his or her personal
needs) always may ride with the eligible individual. If there is a
personal care attendant on the trip, the eligible individual may still
bring a companion, plus additional companions on a space available
basis. The entity may require that, in reserving the trip, the eligible
individual reserve the space for the attendant.
To prevent potential abuse of this provision, the rule provides that
a companion (e.g., friend or family member) does not count as a personal
care attendant unless the eligible individual regularly makes use of a
personal care attendant and the companion is actually acting in that
capacity. As noted under 37.125, a provider may require that, as part
of the initial eligibility certification process, an individual indicate
whether he or she travels with a personal care attendant. If someone
does not indicate the use of an attendant, then any individual
accompanying him or her would be regarded simply as a companion.
To be viewed as ''accompanying'' the eligible individual, a companion
must have the same origin and destination points as the eligible
individual. In appropriate circumstances, entities may also wish to
provide service to a companion who has either an origin or destination,
but not both, with the eligible individual (e.g., the individual's date
is dropped off at her own residence on the return trip from a concert).
This section requires an eligibilty process to be established by each
operator of complementary paratransit. The details of the process are
to be devised through the planning and public participation process of
this subpart. The process may not impose unreasonable administrative
burdens on applicants, and, since it is part of the entity's
nondiscrimination obligations, may not involve ''user fees'' or
application fees to the applicant.
The process may include functional criteria related to the
substantive eligibility criteria of 37.123 and, where appropriate,
functional evaluation or testing of applicants. The substantive
eligibility process is not aimed at making a medical or diagnostic
determination. While evaluation by a physician (or professionals in
rehabilitation or other relevant fields) may be used as part of the
process, a diagnosis of a disability is not dispositive. What is needed
is a determination of whether, as a practical matter, the individual can
use fixed route transit in his or her own circumstances. That is a
transportation decision primarily, not a medical decision.
The goal of the process is to ensure that only people who meet the
regulatory criteria, strictly applied, are regarded as ADA paratransit
eligible. The Department recognizes that transit entities may wish to
provide service to other persons, which is not prohibited by this rule.
However, the eligibility process should clearly distinguish those
persons who are ADA eligible from those who are provided service on
other grounds. For example, eligibility documentation must clearly
state whether someone is ADA paratransit eligible or eligible on some
other basis.
Often, people tend to think of paratransit exclusively in terms of
people with mobility impairments. Under the ADA, this is not accurate.
Persons with visual impairments may be eligible under either the first
or third eligibility categories. To accommodate them, all documents
concerning eligibility must be made available in one or more accessible
formats, on request. Accessible formats include computer disks, braille
documents, audio cassettes, and large print documents. A document does
not necessarily need to be made available in the format a requester
prefers, but it does have to be made available in a format the person
can use. There is no use giving a computer disk to someone who does not
have a computer, for instance, or a braille document to a person who
does not read braille.
When a person applies for eligibility, the entity will provide all
the needed forms and instructions. These forms and instructions may
include a declaration of whether the individual travels with a personal
care attendant. The entity may make further inquiries concerning such a
declaration (e.g., with respect to the individual's actual need for a
personal care attendant).
When the application process is complete -- all necessary actions by
the applicant taken -- the entity should process the application in 21
days. If it is unable to do so, it must begin to provide service to the
applicant on the 22nd day, as if the application had been granted.
Service may be terminated only if an when the entity denies the
application. All determinations shall be in writing; in the case of a
denial, reasons must be specified. The reasons must specifically relate
the evidence in the matter to the eligibility criteria of this rule and
of the entity's process. A mere recital that the applicant can use
fixed route transit is not sufficient.
For people granted eligibility, the documentation of eligibility
shall include at least the following information:
-- The individual's name -- The name of the transit provider --
The telephone number of the entity's paratransit coordinator -- An
expiration date for eligibility -- Any conditions or limitations
on the individual's eligibility,
including the use of a personal care attendant.
The last point refers to the situation in which a person is eligible
for some trips but not others. Or if the traveler is authorized to have
a personal care attendant ride free of charge. For example, the
documentation may say that the individual is eligible only when the
temperature falls below a certain point, or when the individual is going
to a destination not on an accessible bus route, or for non-work trips,
etc.
As the mention of an expiration date implies, certification is not
forever. The entity may recertify eligibility at reasonable intervals
to make sure that changed circumstances have not invalidated or changed
the individual's eligibility. In the Department's view, a reasonable
interval for recertification is probably between one and three years.
Less than one year would probably be too burdensome for consumers; over
three years would begin to lose the point of doing recertifications.
The recertification interval should be stated in the entity's plan. Of
course, a user of the service can apply to modify conditions on his or
her eligibility at any time.
The administrative appeal process is intended to give applicants who
have been denied eligibility the opportunity to have their cases heard
by some official other than the one who turned them down in the first
place. In order to have appropriate separation of functions -- a key
element of administrative due process -- not only must the same person
not decide the case on appeal, but that person, to the extent
practicable, should not have been involved in the first decision (e.g.,
as a member of the same office, or a supervisor or subordinate of the
original decisionmaker). When, as in the case of a small transit
operator, this degree of separation is not feasible, the second
decisionmaker should at least be ''bubbled'' with respect to the
original decision (i.e., not have participated in the original decision
or discussed it with the original decisionmaker). In addition, there
must be an opportunity to be heard in person as well as the chance to
present written evidence and arguments. All appeals decisions must be
in writing, stating the reasons for the decision.
To prevent the filing of stale claims, the entity may establish a 60
day ''statute of limitations'' on filing of appeals, the time starting
to run on the date the individual is notified on the negative initial
decision. After the appeals process has been completed (i.e., the
hearing and/or written submission completed), the entity should make a
decision within 30 days. If it does not, the individual must be
provided service beginning the 31st day, until and unless an adverse
decision is rendered on his or her appeal.
Under the eligibility criteria of the rule, an individual has a right
to paratransit if he or she meets the eligibility criteria. As noted in
the discussion of the nondiscrimination section, an entity may refuse
service to individual with a disability who engages in violent,
seriously disruptive, or illegal conduct, using the same standards for
exclusion that would apply to any other person who acted in such an
inappropriate way.
The rule also allows an entity to establish a process to suspend, for
a reasonable period of time, the provision of paratransit service to an
ADA eligible person who establishes a pattern or practice of missing
scheduled trips. The purpose of this process would be to deter or deal
with chronic ''no-shows.'' The sanction system -- articulated criteria
for the imposition of sanctions, length of suspension periods, details
of the administrative process, etc. -- would be developed through the
public planning and participation process for the entity's paratransit
plan, and the result reflected in the plan submission to UMTA.
It is very important to note that sanctions could be imposed only for
a ''pattern or practice'' of missed trips. A pattern or practice
involves intentional, repeated or regular actions, not isolated,
accidental, or singular incidents. Moreover, only actions within the
control of the individual count as part of a pattern or practice.
Missed trips due to operator error are not attributable to the
individual passenger for this purpose. If the vehicle arrives
substantially after the scheduled pickup time, and the passenger has
given up on the vehicle and taken a taxi or gone down the street to talk
to a neighbor, that is not a missed trip attributable to the passenger.
If the vehicle does not arrive at all, or is sent to the wrong address,
or to the wrong entrance to a building, that is not a missed trip
attributable to the passenger. There may be other circumstances beyond
the individual's control (e.g., a sudden turn for the worse in someone
with a variable condition, a sudden family emergency) that make it
impracticable for the individual to travel at the scheduled time and
also for the individual to notify the entity in time to cancel the trip
before the vehicle comes. Such circumstances also would not form part
of a sanctionable pattern or practice.
Once an entity has certified someone as eligible, the individual's
eligibility takes on the coloration of a property right. (This is not
merely a theoretical statement. If one depends on transportation one has
been found eligible for to get to a job, and the eligibility is removed,
one may lose the job. The same can be said for access to medical care or
other important services.) Consequently, before eligibility may be
removed ''for cause'' under this provision, the entity must provide
administrative due process to the individual.
If the entity proposes to impose sanctions on someone, it must first
notify the individual in writing (using accessible formats where
necessary). The notice must specify the basis of the proposed action
(e.g., Mr. Smith scheduled trips for 8 a.m. on May 15, 2 p.m. on June 3,
9 a.m. on June 21, and 9:20 p.m. on July 10, and on each occasion the
vehicle appeared at the scheduled time and Mr. Smith was nowhere to be
found) and set forth the proposed sanction (e.g., Mr. Smith would not
receive service for 15 days).
The entity would provide the individual an opportunity to be heard
(i.e., an in-person informal hearing before a decisionmaker) as well as
to present written and oral information and arguments. All relevant
entity records and personnel would be made available to the individual,
and other persons could testify. It is likely that, in many cases, an
important factual issue would be whether a missed trip was the
responsibility of the provider or the passenger, and the testimony of
other persons and the provider's records or personnel are likely to be
relevant in deciding this issue. While the hearing is intended to be
informal, the individual could bring a representative (e.g., someone
from an advocacy organization, an attorney).
The individual may waive the hearing and proceed on the basis of
written presentations. If the individual does not respond to the notice
within a reasonable time, the entity may make, in effect, a default
finding and impose sanctions. If there is a hearing, and the individual
needs paratransit service to attend the hearing, the entity must provide
it. We would emphasize that, prior to a finding against the individual
after this due process procedure, the individual must continue to
receive service. The entity cannot suspend service while the matter is
pending.
The entity must notify the individual in writing about the decision,
the reasons for it, and the sanctions imposed, if any. Again, this
information would be made available in accessible formats. In the case
of a decision adverse to the individual, the administrative appeals
process of this section would apply. The sanction would be stayed
pending an appeal.
There are means other than sanctions, however, by which a transit
provider can deal with a ''no-show'' problem in its system. Providers
who use ''real time scheduling'' report that this technique is very
effective in reducing no-shows and cancellations, and increasing the mix
of real time scheduling in a system can probably be of benefit in this
area. Calling the customer to reconfirm a reasonable time before pickup
can head off some problems, as can educating consumers to call with
cancellations ahead of time. Training of dispatch and operator
personnel can help to avoid miscommunications that lead to missed trips.
This section requires each entity having a complementary paratransit
system to provide service to visitors from out of town on the same basis
as it is provided to local residents. By ''on the same basis,'' we mean
under all the same conditions, service criteria, etc., without
distinction. For the period of a visit, the visitor is treated exactly
like an eligible local user, without any higher priority being given to
either.
A visitor is defined as someone who does not reside in the
jurisdiction or jurisdictions served by the public entity or other
public entities with which it coordinates paratransit service. For
example, suppose a five-county metropolitan area provides coordinated
paratransit service under a joint plan. A resident of any of the five
counties would not be regarded as a visitor in any of them. Note that
the rule talks in terms of ''jurisdiction'' rather than ''service
area.'' If an individual lives in XYZ County, but outside the fixed
route service area of that county's transit provider, the individual is
still not a visitor for purposes of paratransit in PQR County, if PQR is
one of the counties with which XYZ provides coordinated paratransit
service.
A visitor can become eligible in one of two ways. The first is to
present documentation from his or her ''home'' jurisdiction's
paratransit system. The local provider will give ''full faith and
credit'' to the ID card or other documentation from the other entity.
If the individual has no such documentation, the local provider may
require the provision of proof of visitor status (i.e., proof of
residence somewhere else) and, if the individual's disability is not
apparent, proof of the disability (e.g., a letter from a doctor or
rehabilitation professional). Once this documentation is presented and
is satisfactory, the local provider will make service available on the
basis of the individual's statement that he or she is unable to use the
fixed route transit system.
The local provider need serve someone based on visitor eligibility
for no more than 21 days. After that, the individual is treated the
same as a local person for eligibility purposes. This is true whether
the 21 days are consecutive or parceled out over several shorter visits.
The local provider may require the erstwhile visitor to apply for
eligibility in the usual local manner. A visitor who expects to be
around longer than 21 days should apply for regular eligibility as soon
as he arrives. The same approach may be used for a service of requested
visits totaling 21 days or more in a relating compact period of time.
Preferably, this application process should be arranged before the
visitor arrives, by letter, telephone or fax, so that a complete
application can be processed expeditiously.
The basic mode of service for complementary paratransit is demand
responsive, origin-to-destination service. This service may be provided
for persons in any one of the three eligibility categories, and must
always be provided to persons in the first category (e.g., people who
cannot navigate the system). The local planning process should decide
whether, or in what circumstances, this service is to be provided as
door-to-door or curb-to-curb service.
For persons in the second eligibility category (e.g., persons who can
use accessible buses, but do not have an accessible bus route available
to take them to their destination), origin-to-destination service can be
used. Alternatively, the entity can provide either of two other forms
of service. One is on-call bus, in which the individual calls the
provider and arranges for one or more accessible buses to arrive on the
routes he needs to use at the appropriate time. On-call bus service
must meet all the service criteria of 37.131, except that on-call buses
run only on fixed routes and the fare charged can be only the fixed
route fare that anyone pays on the bus (including discounts).
The second option is ''feeder paratransit'' to an accessible fixed
route that will take the individual to his or her destination. Feeder
paratransit, again, would have to meet all the criteria of 37.131.
With respect to fares, the paratransit fare could be charged, but the
individual would not be double charged for the trip. That is, having
paid the paratransit fare, the transfer to the fixed route would be
free.
For persons in the third eligibility category (e.g., persons who can
use fixed route transit but who, because of a specific
impairment-related condition, cannot get to or from a stop), the
''feeder paratransit'' option, under the conditions outlined above, is
available. For some trips, it might be necessary to arrange for feeder
service at both ends of the fixed route trip. Given the more
complicated logistics of such arrangements, and the potential for a
mistake that would seriously inconvenience the passenger, the transit
provider should consider carefully whether such a ''double feeder''
system, while permissible, is truly workable in its system (as opposed
to a simpler system that used feeder service only at one end of a trip
when the bus let the person off at a place from which he or she could
independently get to the destination). There may be some situations in
which origin to destination service is easier and less expensive.
The basic bus system service area is a corridor with a width of 3/4
of a mile on each side of each fixed route. At the end of a route,
there is a semicircular ''cap'' on the corridor, consisting of a
three-quarter mile radius from the end point of the route to the
parallel sides of the corridor.
insert illus. 774
Complementary paratransit must provide service to any origin or
destination point within a corridor fitting this description around any
route in the bus system. Note that this does not say that an eligible
user must live within a corridor in order to be eligible. If an
individual lives outside the corridor, and can find a way of getting to
a pickup point within the corridor, the service must pick him up there.
The same holds true at the destination end of the trip.
Another concept involved in this service criterion is the core
service area. Imagine a bus route map of a typical city. Color the bus
routes and their corridors blue, against the white outline map. In the
densely populated areas of the city, the routes (which, with their
corridors attached, cut 1 1/2 mile swaths) merge together into a solid
blue mass. There are few, if any, white spots left uncovered, and they
are likely to be very small. Paratransit would serve all origins and
destinations in the solid blue mass.
But what of the little white spots surrounded by various bus
corridors? Because it would make sense to avoid providing service to
such small isolated areas, the rule requires paratransit service there
as well. So color them in too.
Outside the core area, though, as bus routes follow radial arteries
into the suburbs and exurbs (we know real bus route maps are more
complicated than this, but we simplify for purposes of illustration),
there are increasingly wide white areas between the blue corridors,
which may have corridors on either side of them but are not small areas
completely surrounded by corridors. These white spaces are not part of
the paratransit service area and the entity does not have to serve
origins and destinations there. However, if, through the planning
process, the entity wants to enlarge the width of one or more of the
blue corridors from the 3/4 of a mile width, it can do so, to a maximum
of 1 1/2 miles on each side of a route. The cost of service provided
within such an expanded corridor can be counted in connection with an
undue financial burden waiver request.
There may be a part of the service area where part of one of the
corridors overlaps a political boundary, resulting in a requirement to
serve origins and destinations in a neighboring jurisdiction which the
entity lacks legal authority to service. The entity is not required to
serve such origins and destinations, even though the area on the other
side of the political boundary is within a corridor. This exception to
the service area criterion d when there is a legal bar to the entity
providing service on the other side of the boundary.
The rule requires, in this situation, that the entity take all
practicable steps to get around the problem so that it can provide
service throughout its service area. The entity should work with the
state or local governments involved, via coordination plans, reciprocity
agreements, memoranda or understanding or other means to prevent
political boundaries from becoming barriers to the travel of individuals
with disabilities.
The definition of the service area for rail systems is somewhat
different, though many of the same concepts apply.
insert illus. 777
Around each station on the line (whether or not a key station), the
entity would draw a circle with a radius of 3/4 mile. Some circles may
touch or overlap. The series of circles is the rail system's service
area. (We recognize that, in systems where stations are close together,
this could result in a service area that approached being a corridor
like that of a bus line.) The rail system would provide paratransit
service from any point in one circle to any point in any other circle.
The entity would not have to provide service to two points within the
same circle, since a trip between two points in the vicinity of the same
station is not a trip that typically would be taken by train. Nor would
the entity have to provide service to spaces between the circles. For
example, a train trip would not get close to point x; one would have to
take a bus or other mode of transportation to get from station E or F to
point x. A paratransit system comparable to the rail service area would
not be required to take someone there either.
Rail systems typically provide trips that are not made, or cannot be
made conveniently, on bus systems. For example, many rail systems cross
jurisdictional boundaries that bus systems often do not. One can travel
from Station A to a relatively distant Station E on a rail system in a
single trip, while a bus trip between the same points, if possible at
all, may involve a number of indirect routings and transfers, on two bus
systems that may not interface especially well.
Rail operators have an obligation to provide paratransit equivalents
of trips between circles to persons who cannot use fixed route rail
systems because they cannot navigate the system, because key stations or
trains are not yet accessible, or because they cannot access stations
from points within the circles because of a specific impairment-related
condition. For individuals who are eligible in category 2 because they
need an accessible key station to use the system, the paratransit
obligation extends only to transportation among ''circles'' centered on
designated key stations (since, even whn the key station plan is fully
implemented, these individuals will be unable to use non-key stations).
It is not sufficient for a rail operator to refer persons with
disabilities to an accessible bus system in the area. The obligation to
provide paratransit for a rail system is independent of the operations
of any bus system serving the same area, whether operated by the same
entity that operates the rail system or a different entity. Obviously,
it will be advantageous for bus and rail systems to coordinate their
paratransit efforts, but a coordinated system would have to ensure
coverage of trips comparable to rail trips that could not conveniently
be taken on the fixed route bus system.
Under this provision, an entity must make its reservation service
available during the hours its administrative offices are open. If
those offices are open 9 to 5, those are the hours during which the
reservations service must be open, even if the entity's transit service
operated 6 a.m. to midnight. On days prior to a service day on which
the administrative offices are not open at all (e.g., a Sunday prior to
a Monday service day), the reservation service would also be open 9 to
5. Note that the reservation service on any day does not have to be
provided directly by a ''real person.'' An answering machine or other
technology can suffice.
Any caller reaching the reservation service during the 9 to 5 period,
in this example, could reserve service for any time during the next 6
a.m. to 12 midnight service day. This is the difference between ''next
day scheduling'' and a system involving a 24-hour prior reservation
requirement, in which a caller would have to reserve a trip at 7 a.m.
today if he or she wanted to travel at 7 a.m. tomorrow. The latter
approach is not adequate under this rule.
The entity may use real time scheduling for all or part of its
service. Like the Moliere character who spoke prose all his life
without knowing it, many entities may already be using some real time
scheduling (e.g., for return trips which are scheduled on a when-needed
basis, as opposed to in advance). A number of transit providers who
have used real time scheduling believe that it is more efficient on a
per-trip basis and reduces cancellations and no-shows significantly. We
encourage entities to consider this form of service.
Sometimes users want to schedule service well in advance, to be sure
of traveling when they want to. The rule tells providers to permit
reservations to be made as much as 14 days in advance. In addition,
though an entity may negotiate with a user to adjust pickup and return
trip times to make scheduling more efficient, the entity cannot insist
on scheduling a trip more than one hour earlier or later than the
individual desires to travel. Any greater deviation from desired trip
would exceed the bounds of comparability.
To calculate the proper paratransit fare, the entity would determine
the route(s) that an individual would take to get from his or her origin
to his or her destination on the fixed route system. At the time of day
the person was traveling, what is the fare for that trip on those
routes? Applicable charges like transfer fees or premium service
charges may be added to the amount, but discounts (e.g., the half-fare
discount for off-peak fixed route travel by elderly and handicapped
persons) would not be subtracted. The transit provider could charge up
to twice the resulting amount for the paratransit trip.
The mode through which paratransit is provided does not change the
method of calculation. For example, if paratransit is provided via user
side subsidy taxi service rather than publicly operated dial-a-ride van
service, the cost to the user could still be only twice the applicable
fixed route fare. The system operates the same regardless of whether
the paratransit trip is being provided in place of a bus or a rail trip
the user cannot make on the fixed route system. Where bus and rail
systems are run by the same provider (or where the same bus provider
runs parallel local and express buses along the same route), the
comparison would be made to the mode on which a typical fixed route user
would make the particular trip, based on schedule, length, convenience,
avoidance of transfers, etc.
Companions are charged the same fare as the eligible individual they
are accompanying. Personal care attendants ride free.
One exception to the fare requirement is made for social service
agency (or other organization-sponsored) trips. This exception, which
allows the transit provider to negotiate a price with the agency that is
more than twice the relevant fixed route fare, applies to ''agency
trips,'' by which we mean trips which are guaranteed to the agency for
its use. That is, if an agency wants 12 slots for a trip to the mall on
Saturday for clients with disabilities, the agency makes the reservation
for the trips in its name, the agency will be paying for the
transportation, and the trips are reserved to the agency, for whichever
12 people the agency designates, the provider may then negotiate any
price it can with the agency for the trips. We distinguish this
situation from one in which an agency employee, as a service, calls and
makes an individual reservation in the name of a client, where the
client will be paying for the transportation.
This is a simple and straightforward requirement. There can be no
restrictions or priorities based on trip purpose in a comparable
complementary paratransit system. When a user reserves a trip, the
entity will need to know the origin, destination, time of travel, and
how many people are traveling. The entity does not need to know why the
person is traveling, and should not even ask.
This criterion says simply that if a person can travel to a given
destination using a given fixed route at a given time of day, an ADA
paratransit eligible person must be able to travel to that same
destination on paratransit at that time of day. This criterion
recognizes that the shape of the service area can change. Late at
night, for example, it is common for certain routes not to be run.
Those routes, and their paratransit corridors, do not need to be served
with paratransit when the fixed route system is not running on them.
One couldn't get to destinations in that corridor by fixed route at
those times, so paratransit service is not necessary either.
It should be pointed out that service during low-demand times need
not be by the same paratransit mode as during higher usage periods. For
example, if a provider uses its own paratransit vans during high demand
periods, it could use a private contractor or user-side subsidy provider
during low demand periods. This would presumably be a more efficient
way of providing late night service. A call-forwarding device for
communication with the auxiliary carrier during these low demand times
would be perfectly acceptable, and could reduce administrative costs.
This provision specifically prohibits two common mechanisms that
limit use of a paratransit system so as to constrain demand on its
capacity. The first is a waiting list. Tyically, a waiting list
involves a determination by a provider that it can provide service only
to a given number of eligible persons. Other eligible persons are not
able to receive service until one of the people being served moves away
or otherwise no longer uses the service. Then the persons on the
waiting list can move up. The process is analogous to the wait that
persons in some cities have to endure to be able to buy season tickets
to a sold-out slate of professional football games.
The second mechanism specifically mentioned is a number limit on the
trips a passenger can take in a given period of time. It is a kind of
rationing in which, for example, if one has taken his quota of 30 trips
this month, he cannot take further trips for the rest of the month.
In addition, this paragraph prohibits any operational pattern or
practice that significantly limits the availability of service of ADA
paratransit eligible persons. As discussed under 37.125 in the context
of missed trips by passengers, a ''pattern or practice'' involves,
regular, or repeated actions, not isolated, accidental, or singular
incidents. A missed trip, late arrival, or trip denial now and then
does not trigger this provision.
Operational problems outside the control of the entity do not count
as part of a pattern or practice under this provision. For example, if
the vehicle has an accident on the way to pick up a passenger, the late
arrival would not count as part of a pattern or practice. If something
that could not have been anticipated at the time the trip was scheduled
(e.g., a snowstorm, an accident or hazardous materials incident that
traps the paratransit vehicle, like all traffic on a certain highway,
for hours), the resulting missed trip would not count as part of a
pattern or practice. On the other hand, if the entity regularly does
not maintain its vehicles well, such that frequent mechanical breakdowns
result in missed trips or late arrivals, a pattern or practice may
exist. This is also true in a situation in which scheduling practices
fail to take into account regularly occurring traffic conditions (e.g.,
rush hour traffic jams), resulting in frequent late arrivals.
The rule mentions three specific examples of operational patterns or
practices that would violate this provision. The first is a pattern or
practice of substantial numbers of significantly untimely pickups
(either for initial or return trips). To violate this provision, there
must be both a substantial number of late arrivals and the late arrivals
in question must be significant in length. For example, a DOT Inspector
General's (IG) report on one city's paratransit system disclosed that
around 30 percent of trips were between one and five hours late. Such a
situation would trigger this provision. On the other hand, only a few
instances of trips one to five hours late, or many instances of trips a
few minutes late, would not trigger this provision.
The second example is substantial numbers of trip denials or missed
trips. For example, if on a regular basis the reservation phone lines
open at 5 a.m. and callers after 7 a.m. are all told that they cannot
travel, or the phone lines shut down after 7 a.m. and a recorded message
says to call back the next day, or the phone lines are always so busy
that no one can get through, this provision would be triggered.
(Practices of this kind would probably violate the response time
criterion as well.) Also, if, on a regular basis, the entity misses a
substantial number of trips (e.g., a trip is scheduled, the passenger is
waiting, but the vehicle never comes, goes to the wrong address, is
extremely late, etc.), it would violate this provision.
The third example is substantial numbers of trips with excessive trip
lengths. Since paratransit is a shared ride service, paratransit rides
between Point A and Point B will usually take longer, and involve more
intermediate stops, than a taxi ride between the same two points.
However, when the number of intermediate stops and the total trip time
for a given passenger grows so large as to make use of the system
prohibitively inconvenient, then this provision would be triggered. For
example, the IG report referred to above mentioned a situation in which
9 percent of riders had one way trips averaging between two and four
hours, with an average of 16 intermediate stops. Such a situation would
probably trigger this provision.
Though these three examples probably cover the most frequently cited
problems in paratransit operations that directly or indirectly limit the
provision of service that is theoretically available to eligible
persons, the list is not exhaustive. Other patterns or practices could
trigger this provision. For example, the Department has heard about a
situation in which an entity's paratransit contractor was paid on a
per-trip basis, regardless of the length of the trip. The contractor
therefore had an economic incentive to provide as many trips as
possible. As a result, the contractor accepted short trips and
routinely denied longer trips. This would be a pattern or practice
contrary to this provision (and contrary to the service area provision
as well).
This provision emphasizes that entities may go beyond the
requirements of this section in providing service to ADA paratransit
individuals. For example, no one is precluded from offering service in
a larger service area, during greater hours than the fixed route system,
or without charge. However, costs of such additional service do not
count with respect to undue financial burden waiver requests. Where a
service criterion itself incorporates a range of actions the entity may
take (e.g., providing wide corridors outside the urban core, using real
time scheduling), however, costs of providing that optional service may
be counted for undue financial burden waiver request purposes.
As part of its paratransit service, an entity may include a
subscription service component. However, at any given time of day, this
component may not absorb more than 50 percent of available capacity on
the total system. For example, if, at 8 a.m., the system can provide
400 trips, no more than 200 of these can be subscription trips.
The one exception to this rule would occur in a situation in which
there is excess non-subscription capacity available. For example, if
over a long enough period of time to establish a pattern, there were
only 150 non-subscription trips requested at 8 a.m., the provider could
begin to provide 250 subscription trips at that time. Subsequently, if
non-subscription demand increased over a period of time, such that the
50 trips were needed to satisfy a regular non-subscription demand at
that time, and overall system capacity had not increased, the 50 trips
would have to be returned to the non-subscription category. During
times of high subscription demand, entities could use the trip time
negotiation discretion of 37.131(c)(2) to shift some trips to other
times.
Because subscription service is a limited subcomponent of paratransit
service, the rule permits restrictions to be imposed on its use that
could not be imposed elsewhere. There may be a waiting list for
provision of subscription service or the use of other capacity
constraints. Also, there may be restrictions or priorities based on
trip purpose. For example, subscription service under peak work trip
times could be limited to work trips. We emphasize that these
limitations apply only to subscription service. It is acceptable for a
provider to put a person on a waiting list for access to subscription
service at 8 a.m. for work trips; the same person could not be
wait-listed for access to paratransit service in general.
This section contains the general requirements concerning the
submission of paratransit plans. Each public entity operating fixed
route service is required to develop and submit a plan for paratransit
service. Where you send your plans depends on the type of entity you
are. There are two categories of entities which should submit their
plans to states -- (1) UMTA recipients and (2) entities who are
administered by the state on behalf of UMTA.
These UMTA grantees submit their plans to the states because the
agency would like the benefit of the states' expertise before final
review. The states' role is as a commenter, not as a reviewer.
This section also specifies annual progress reports concerning the
meeting of previously approved milestones, any slippage (with the
reasons for it and plans to catch up), and any significant changes in
the operator's environment, such as the withdrawal from the marketplace
of a private paratransit provider or whose service the entity has relied
upon to provide part of its paratransit service.
Paragraph (d) of this section specifies a maximum time period for the
phase-in of the implementation of paratransit plans. The Department
recognizes that it is not reasonable to expect paratransit systems to
spring into existence fully formed, like Athena from the head of Zeus.
Under this paragraph, all entities must be in full compliance with all
paratransit provisions by January 26, 1997, unless the entity has
received a waiver from UMTA based on undue financial burden (which
applies only to the service criteria of 37.131, not to eligibility
requirements or other paratransit provisions).
While the rule assumes that most entities will take a year to fully
implement these provisions, longer than a year requires the paratransit
plans to submit milestones that are susceptible to objective
verification. Not all plans will be approved with a five-year lead-in
period. Consistent with the proposed rule, the Department intends to
look at each plan individually to see what is required for
implementation in each case. DOT may approve only a shorter phase-in
period in a given case.
Section 35.137 establishes three principal requirements in the
development of paratransit plans.
First is the requirement to survey existing paratransit services
within the service area. This is required by section 223(c)(8) of the
ADA. While the ADA falls short of explicitly requiring coordination,
clearly this is one of the goals. The purpose of the survey is to
determine what is being provided already, so that a transit provider can
accurately assess what additional service is needed to meet the service
criteria for comparable paratransit service. The plan does not have to
discuss private paratransit providers whose services will not be used to
help meet paratransit requirements under this rule. However, the public
entity will need to know specifically what services are being provided
by whom if the entity is to count the transportation toward the overall
need.
Since the public entity is required to provide paratransit to all ADA
paratransit eligible individuals, there is some concern that currently
provided service may be cut back or eliminated. It is possible that
this may happen and such action would have a negative effect on
transportation provided to persons with disabilities in general. The
Department urges each entity required to submit a plan to work with
current providers of transportation, not only to determine what
transportation services they provide, but also to continue to provide
service into the foreseeable future.
Second, 37.137 specifies requirements for public participation.
First, the entity must perform outreach, to ensure that a wide range of
persons anticipated to use the paratransit service know about and have
the opportunity to participate in the development of the plan. Not only
must the entity identify who these individuals or groups are, the entity
also must contact the people at an early stage in the development
process.
The other public participation requirements are straightforward.
There must be a public hearing and an opportunity to comment. The
hearing must be accessible to those with disabilities, and notice of the
hearing must be accessible as well. There is a special efforts test
identified in this paragraph for comments concerning a multi-year
phase-in of a paratransit plan.
The final general requirement of the section specifies that efforts
at public participation must be made permanent through some mechanism
that provides for participation in all phases of paratransit plan
development and submission. The Department is not requiring that there
be an advisory committee established, although this is one method of
institutionalizing participation. The Department is not as interested
in the specific structure used to ensure public participation as we are
interested in the effectiveness of the effort.
The Department believes that public participation is a key element in
the effective implementation of the ADA. The ADA is an opportunity to
develop programs that will ensure the integration of all persons into
not just the transportation system of America, but all of the
opportunities transportation makes possible. This opportunity is not
without tremendous challenges to the transit providers. It is only
through dialogue, over the long term, that usable, possible plans can be
developed and implemented.
This section contains substantive categories of information to be
contained in the paratransit plan: Information on current and changing
fixed route service; inventory of existing paratransit service;
discussion of the discrepancies between existing paratransit and what is
required under this regulation; a discussion of the public
participation requirements and how they have been met; the plan for
paratransit service; the budget for paratransit services; efforts to
coordinate with other transportation providers; a description of the
process in place or to be used to register ADA paratransit eligible
individuals; a description of the documentation provided to each
individual verifying eligibility; and a request for a waiver based on
undue financial burden, if applicable. The final rule contains a
reorganized and slightly expanded section on plan contents, reflecting
requests to be more explicit, rather than less explicit.
The list of required elements is the same for all entities required
to submit paratransit plans. There is no document length requirement,
however. Each entity (or group plan) is unique and we expect the plans
to reflect this. While we would like the plan elements presented in the
order listed in this section, the contents most likely will vary
greatly, depending on the size, geographic area, budget, complexity of
issues, etc. of the particular submitting agency.
This section and 37.139 provide for a maximum phase-in period of
five years, with an assumed one-year phase-in for all paratransit
programs. (The required budget has been changed to five years as well.)
The Department has established a maximum five-year phase-in in the
belief that not all systems will require that long, but that some,
particularly those which had chosen to meet compliance with section 504
requirements with accessible fixed route service, may indeed need five
years.
We are confident that, through the public participation process,
entities can develop a realistic plan for full compliance with the ADA.
To help ensure this, the paratransit plan contents section now requires
that any plan which projects full compliance after January 26, 1993 must
include milestones which can be measured and which result in steady
progress toward full compliance. For example, it is possible that the
first part of year one is used to ensure comprehensive registration of
all eligible persons with disabilities, training of transit provider
staffs and the development and dissemination of information to users and
potential users in accessible formats and some modest increase in
paratransit service is provided. A plan would not be permitted to
indicate that no activity was possible in the first year, but
proportionately more progress could be planned for later years than for
the first year. Implementation must begin in January 1992.
Each plan, including its proposed phase-in period, will be the
subject of examination by UMTA. Not all providers who request a
five-year phase-in will receive approval for a five-year phase-in. The
plan must be careful, therefore, to explain what current services are,
what the projections are, and what methods are in place to determine and
provide accountability for progress toward full compliance.
We have been asked for assistance in assessing what the demand for
paratransit service will be. UMTA's ADA Paratransit Manual provides
detailed assistance in this and many other areas of the plan development
process.
The ADA itself contained a figure of 43 million persons with
disabilities. It should be pointed out that many of these may not
necessarily be eligible for ADA paratransit service. The Department's
regulatory impact analysis discussing the probable costs involved in
implementing this rule places the possible percentage of population who
would be eligible for paratransit service at between 1.4 and 1.9
percent. This figure can vary depending on the type and variety of
services you have available, or on such things as climate, proximity to
medical care, family, etc. that a person with a disability may need.
Clearly estimating demand is one of the most critical elements in the
plan, since it will be used to make decisions about all of the various
service criteria.
Section 37.139 contains a new paragraph (j), spelling out in more
detail requirements related to the annual submission of plans. Since
there is now the possibility for five-year phase-ins, the annual plan
demonstrates the progress made to date, and explains any delays.
The Department believes that, particularly in large, multi-provider
regions, a coordinated regional paratransit plan and system are
extremely important. Such coordination can do much to ensure that the
most comprehensive transportation can be provided with the most
efficient use of available resources. We recognize that the effort of
putting together such a coordinated system can be a lengthy one. This
section is intended to facilitate the process of forming such a
coordinated system.
If a number of entities wish to submit a joint plan for a coordinated
system, they must, like other entities, submit a document by January 26,
1992. At a minimum, this document must include the following:
(1) A general statement that the participating entities intend to
file a joint coordinated plan;
(2) A certification from each participating entity that it is
committed to providing paratransit as a part of a coordinated plan;
(3) A certification from each participating entity that it will
maintain at least current levels of paratransit service until the
coordinated paratransit service called for by the joint plan is
implemented;
(4) As many elements of the plan as possible.
These provisions ensure that significant planning will precede, and
plan implementation will begin by, January 26, 1992, without precluding
entities from cooperating because it was not possible to complete
coordinating different public entities by that date. The entities
involved in a joint plan are required to submit all elements of their
plan by July 26, 1992.
The final provision in the section notes that an entity may later
join a coordinated plan, even if it has filed its own plan on January
26, 1992. An entity must submit its own plan by January 26, 1992, if it
has not provided a certification of participation in a joint plan.). In
this case, the entity must provide the assurances and certifications
required of all of the other participating entities.
The Department fully expects that many jurisdictions filing joint
plans will be able to do so by January 26, 1992. For those who cannot,
the regulatory provision ensures that there will be no decrease in
paratransit service. Further, since we anticipate coordinated service
areas to provide more effective service, complete implementation of a
joint plan could be more rapid than if each entity was providing service
on its own.
Entities submitting a joint plan do not have any longer than any
other entities to fully implement complementary paratransit service. In
any case, all plans (joint or single) must be fully implemented by
January 26, 1997, absent a waiver for undue financial burden (which
would, in the case of a joint plan, be considered on a joint basis).
As already discussed under 37.135, the states will receive UMTA
recipient plans for section 18 recipients administered by the State or
any small urbanized area recipient of section 9 funds administered by a
state. Public entities who do not receive UMTA funds will submit their
plans directly to the applicable Regional Office (listed in appendix B
to the rule).
The role of the state is to accept the plans on behalf of UMTA, to
ensure that all plans are submitted to it and forward the plans, with
any comments on the plans, to UMTA. This comment is very important for
UMTA to receive, since states administer these programs on behalf of
UMTA. Each state's specific knowledge of UMTA grantees it administers
will provide helpful information to UMTA in making its decisions.
The rule lists five questions the states must answer when they
forward the plans. These questions are gauged to capitalize on the
working knowledge the states possess on the grantees. UMTA will send a
more specific letter of instruction to each state explaining its role.
This provision spells out factors UMTA will consider in reviewing
each plan, including whether the submission is complete, whether the
plan complies with the substance of the ADA regulation, whether the
entity complied with the public participation requirements in developing
the plan, efforts by the entity to coordinate with other entities in a
plan submission, and any comments submitted by the states.
These elements are not the only items that will be reviewed by UMTA.
Every portion of the plan will be reviewed and assessed for compliance
with the regulation. This section merely highlights those provisions
thought most important by the Department.
The Department has adopted a five-year phase-in for paratransit
service. Under this scheme, each entity required to provide paratransit
service will be able to design a phase-in of its service specifically
geared to local circumstances. While all jurisdictions will not receive
approval for plans with a five year phase-in, each entity will be able
to request what it needs based on local circumstances. Generally, the
section allows an entity to request a wavier at any time it determines
that it will not be able to meet a five-year phase-in or make measured
progress toward its full compliance date specified in its original plan.
A waiver for undue financial burden should be requested if one of the
following circumstances applies. First, when the entity submits its
first plan on January 26, 1992, if the entity knows it will not be able
to reach full compliance within five years, or if the entity cannot make
measured progress the first year it may submit a waiver request. The
entity also should apply for a waiver, if, during plan implementation,
there are changed circumstances which make it unlikely that compliance
will be possible.
The concept of measured progress should be given its plain meaning.
It is not acceptable to submit a plan which shows significant progress
in implementing a plan in years four and five, but no progress in years
one and two. Similarly, the progress must be susceptible to objective
verification. An entity cannot merely ''work toward'' developing a
particular aspect of a plan.
The Department intends that undue burden waiver requests will be
given close scrutiny, and waiver will not be granted highly. In
reviewing requests, however, as the legislative history indicates, UMTA
will look at the individual financial constraints within which each
public entity operates its fixed route system. ''Any determination of
undue financial burden cannot have assumed the collection of additional
revenues, such as those received through increases in local taxes or
legislative appropriations, which would not have otherwise been made
available to the fixed route operator.'' (H. Rept. 101-485, Pt. 1, at
31)
If the UMTA Administrator grants a waiver for undue financial burden,
the waiver will be for a specified period of time and the Administrator
will determine what the entity must do to meet its responsibilities
under the ADA. Each determination will involve a judgment of what is
appropriate on a case-by-case basis. Since each waiver will be granted
based on individual circumstances, the Department does not deem it
appropriate to specify a generally applicable duration for a waiver.
When a waiver is granted, the rule calls for entities to look first
at limiting the number of trips provided to each individual as a means
of providing service that does not create an undue burden. This
capacity constraint, unlike manipulations of other service criteria,
will not result in a degradation of the quality of service. An entity
intending to submit an undue burden waiver request should take this
approach into account in its planning process.
It should be noted that requiring an entity to provide paratransit
service at least during core hours along key routes is one option that
the Administrator has available in making a decision about the service
to be provided. This requirement stems from the statutory provision
that the Administrator can require the entity to provide a minimum level
of service, even if to do so would be an undue financial burden.
Certainly part of a request for a waiver could be a locally endorsed
alternative to this description of basic service. The rule states
explicitly the Administrator's discretion to return the application for
more information if necessary.
Factors the Administrator will consider in making a decision whether
to grant an undue financial burden waiver request include effects on
current fixed route service, reductions in other services, increases in
fares, resources available to implement complementary paratransit over
the period of the plan, current level of accessible service (fixed route
and paratransit), cooperation among transit providers, evidence of
increased efficiencies that have been or could be used, any unique
circumstances that may affect the entity's ability to provide
paratransit service, the level of per capita service being provided,
both to the population as a whole and what is being or anticipated to be
provided to persons who are eligible and registered to receive ADA
paratransit service.
This final element allows some measure of comparability, regardless
of the specific service criteria and should assist in a general
assessment of level of effort.
It is only the costs associated with providing paratransit service to
ADA-paratransit eligible persons that can be counted in assessing
whether or not there is an undue financial burden. Two cost factors are
included in the considerations which enhance the Administrator's ability
to assess real commitment to these paratransit provisions.
First, the Department will allow a statistically valid methodology
for estimating number of trips mandated by the ADA. While the
regulation calls for a trip-by-trip determination of eligibility, this
provision recognizes that this is not possible for some systems,
particularly the large systems. Since only those trips provided to a
person when he or she is ADA eligible may be counted in determining an
undue financial burden, this provision is necessary.
Second, in determining costs to be counted toward providing
paratransit service, paragraph (b)(3) allows an entity to include in its
paratransit budget dollars to which it is legally entitled, but which,
as a matter of state or local funding arrangements, are provided to
another entity that is actually providing the paratransit service.
For example, a state government may provide a certain formula
allocation of the revenue from a certain tax to each jurisdiction for
use in providing transportation service at the local level. The funds,
depending on local arrangements, may flow either to a transit authority
-- a regulated entity under this rule -- or to a city or county
government. If the funds go to the transit authority, they clearly may
be counted in an undue burden calculation. In addition, however, this
provision also allows funds that flow through the city or county
government to be counted in the undue burden calculation, since they are
basically the same funds and should not be treated differently based on
the accident of previously-determined local arrangements. On the other
hand, this provision does not allow funds of a private non-profit or
other organization who uses Department of Health and Human Services
grant or private contributions to be counted toward the entity's
financial commitment to paratransit.
This section applies to all entities providing transportation
services, public and private. It requires those entities to maintain in
operative condition those features or facilities and equipment that make
facilities and vehicles accessible to and usable by individuals with
disabilities.
The ADA requires that, to the maximum extent feasible, facilities be
accessible to and usable by individuals with disabilities. This section
recognizes that it is not sufficient to provide features such as
lift-equipped vehicles, elevators, communications systems to provide
information to people with vision or hearing impairments, etc. if these
features are not maintained in a manner that enables individuals with
disabilities to use them. Inoperative lifts or elevators, locked
accessible doors, accessible paths of travel that are blocked by
equipment or boxes of materials are not accessible to or usable by
individuals with disabilities.
The rule points out that temporary obstructions or isolated instances
of mechanical failure would not be considered violations of the ADA or
this rule. Repairs must be made ''promptly.'' The rule does not, and
probably could not, state a time limit for making particular repairs,
given the variety of circumstances involved. However, repairing
accessible features must be made a high priority. Allowing obstructions
or out of order accessibility equipment to persist beyond a reasonable
period of time would violate this Part, as would mechanical failures due
to improper or inadequate maintenance. Failure of the entity to ensure
that accessible routes are free of obstruction and properly maintained,
or failure to arrange prompt repair of inoperative elevators, lifts, or
other accessibility-related equipment, would also violate this part.
The rule also requires that accommodations be made to individuals
with disabilities who would otherwise use an inoperative accessibility
feature. For example, when a rail system discovers that an elevator is
out of order, blocking access to one of its stations, it could
accommodate users of the station by announcing the problem at other
stations to alert passengers and offer accessible shuttle bus service
around the temporarily inaccessible station. If a public address system
were out of order, the entity could designate personnel to provide
information to customers with visual impairments.
This section applies only to public entities. Of course, like
vehicle acquisition requirements and other provisions applying to public
entities, these requirements also apply when private entities ''stand in
the shoes'' of public entities in contracting situations, as provided in
37.23.
This section's first requirement is that the entity establish a
system of regular and frequent maintenance checks of lifts sufficient to
determine if they are operative.
Vehicle and equipment maintenance is an important component of
successful accessible service. In particular, an aggressive preventive
maintenance program for lifts is essential. Lifts remain rather
delicate pieces of machinery, with many moving parts, which often must
operate in a harsh environment of potholes, dust and gravel, variations
in temperature, snow, slush, and deicing compounds. It is not
surprising that they sometimes break down.
The point of a preventive maintenance program is to prevent
breakdowns, of course. But it is also important to catch broken lifts
as soon as possible, so that they can be repaired promptly. Especially
in a bus system with relatively low lift usage, it is possible that a
vehicle could go for a number of days without carrying a passenger who
uses the lift. It is highly undesirable for the next passenger who
needs a lift to be the person who discovers that the lift is broken,
when a maintenance check by the operator could have discovered the
problem days earlier, resulting in its repair.
Therefore, the entity must have a system for regular and frequent
checks, sufficient to determine if lifts are actually operative. This
is not a requirement for the lift daily. (Indeed, it is not, as such, a
requirement for lift cycling at all. If there is another means available
of checking the lift, it may be used.) If alternate day checks, for
example, are sufficient to determine that lifts are actually working,
then they are permitted. If a lift is used in service on a given day,
that may be sufficient to determine that the lift is operative with
respect to the next day. It would be a violation of this part, however,
for the entity to neglect to check lifts regularly and frequently, or to
exhibit a pattern of lift breakdowns in service resulting in stranded
passengers when the lifts had not been checked before the vehicle failed
to provide required accessibility to passengers that day.
When a lift breaks down in service, the driver must let the entity
know about the problem by the most immediate means available. If the
vehicle is equipped with a radio or telephone, the driver must call in
the problem on the spot. If not, then the driver would have to make a
phone call at the first opportunity (e.g., from a phone booth during the
turnaround time at the end of the run). It is not sufficient to wait
until the end of the day and report the problem when the vehicle returns
to the barn.
When a lift is discovered to be inoperative, either because of an
in-service failure or as the result of a maintenance check, the entity
must take the vehicle out of service before the beginning of its next
service day (with the exception discussed below) and repair the lift
before the vehicle is put back into service. In the case of an
in-service failure, this means that the vehicle can continue its runs on
that day, but cannot start a new service day before the lift is
repaired. If a maintenance check in the evening after completion of a
day's run or in the morning before a day's runs discloses the problem,
then the bus would not go into service until the repair had taken place.
The Department realizes that, in the years before bus fleets are
completely accessible, taking buses with lifts out of service for
repairs in this way would probably result in an inaccessible spare bus
being used on the route, but at least attention would have to be paid
quickly to the lift repair, resulting in a quicker return to service of
a working accessible bus.
The rule provides an exception for those situations in which there is
no spare vehicle (either accessible or inaccessible) available to take
the place of the vehicle with an operative lift, such that putting the
latter vehicle into the shop would result in a reduction of service to
the public (e.g., a scheduled run on a route could not be made). The
Department would emphasize that the exception does not apply when there
is any spare vehicle available.
Where the exception does apply, the provider may keep the vehicle
with the inoperative lift in service for a maximum of three days (for
providers operating in an area of over 50,000 population) or five days
(for providers operating in an area of 50,000 population or less).
After these times have elapsed, the vehicle must go into the shop, not
to return until the lift is repaired. Even during the three- or
five-day period, if an accessible spare bus becomes available at any
time, it must be used in place of the bus with the inoperative lift or
an inaccessible spare that is being used in its place.
In a fixed route system, if a bus is operating without a working lift
(either on the day when the lift fails in service or as the result of
the exception discussed above) and headways between accessible buses on
the route on which the vehicle is operating exceed 30 minutes, the
entity must accommodate passengers who would otherwise be inconvenienced
by the lack of an accessible bus. This accommodation would be by a
paratransit or other special vehicle that would pick up passengers with
disabilities who cannot use the regular bus because its lift is
inoperative. Passengers who need lifts in this situation would, in
effect, be ADA paratransit eligible under the second eligibility
category. However, since they would have no way of knowing that the bus
they sought to catch would not be accessible that day, the transit
authority must actively provide alternative service to them. This could
be done, for example, by having a ''shadow'' accessible service
available along the route or having the bus driver call in the minute he
saw an accessible passenger he could not pick up (including the original
passenger stranded by an in-service lift failure), with a short (i.e.,
less than 30-minute) response from an accessible vehicle dispatched to
pick up the stranded passenger. To minimize problems in providing such
service, when a transit authority is using the ''no spare vehicles''
exception, the entity could place the vehicle with the inoperative lift
on a route with headways between accessible buses shorter than 30
minutes.
This provision applies to both public and private entities.
All people using common wheelchairs (an inclusive term for mobility
devices that fit on lifts meeting Access Board guideline dimensions --
30'' by 48'' and a maximum of 600 pounds for device and user combined --
which includes three-wheeled scooters and other so-called
non-traditional mobility devices) are to be allowed to ride the entity's
vehicles.
Entities may require wheelchair users to ride in designated
securement locations. That is, the entity is not required to carry
wheelchair users whose wheelchairs would have to park in an aisle or
other location where they could obstruct other persons' passage or where
they could not be secured or restrained. An entity's vehicle is not
required to pick up a wheelchair user when the securement locations are
full, just as the vehicle may pass by other passengers waiting at the
stop if the bus is full.
The entity may require that wheelchair users make use of securement
systems for their mobility devices. The entity, in other words, can
require wheelchair users to ''buckle up'' their mobility devices. The
entity is required, on a vehicle meeting Part 38 standards, to use the
securement system to secure wheelchairs as provided in that Part. On
other vehicles (e.g., existing vehicles with securement systems which do
not comply with Part 38 standards), the entity must provide and use a
securement system to ensure that the mobility device remains within the
securement area. This latter requirement is a mandate to use best
efforts to restrain or confine the wheelchair to the securement area.
The entity does the best it can, given its securement technology and the
nature of the wheelchair. The Department encourages entities with
relatively less adequate securement systems on their vehicles, where
feasible, to retrofit the vehicles with better securement systems, that
can successfully restrain a wide variety of wheelchairs. It is our
understanding that the cost of doing so is not enormous.
An entity may not, in any case, deny transportation to a common
wheelchair and its user because the wheelchair cannot be secured or
restrained by a vehicle's securement system, to the entity's
satisfaction.
Entities have often recommended or required that a wheelchair user
transfer out of his or her own device into a vehicle seat. Under this
rule, it is no longer permissible to require such a transfer. The
entity may provide information on risks and make a recommendation with
respect to transfer, but the final decision on whether to transfer is up
to the passenger.
The entity's personnel have an obligation to ensure that a passenger
with a disability is able to take advantage of the accessibility and
safety features on vehicles. Consequently, the driver or other
personnel must provide assistance with the use of lifts, ramps, and
securement devices. For example, the driver must deploy the lift
properly and safely. If the passenger cannot do so independently, the
driver must assist the passenger with using the securement device. On a
vehicle which uses a ramp for entry, the driver may have to assist in
pushing a manual wheelchair up the ramp (particularly where the ramp
slope is relatively steep). All these actions my involve a driver
leaving his seat. Even in entities whose drivers traditionally do not
leave their seats (e.g., because of labor-management agreements or
company rules), this assistance must be provided. This rule overrides
any requirements to the contrary.
Wheelchair users -- especially those using electric wheelchairs often
have a preference for entering a lift platform and vehicle in a
particular direction (e.g., backing on or going on frontwards). Except
where the only way of successfully maneuvering a device onto a vehicle
or into its securement area, or an overriding safety concern (i.e., a
direct threat) requires one way of doing this or another, the transit
provider should respect the passenger's preference. We note that most
electric wheelchairs are usually not equipped with rearview mirrors, and
that many persons who use them are not able to rotate their heads
sufficiently to see behind. When an electric wheelchair must back up a
considerable distance, this can have unfortunate results for other
people's toes.
People using canes or walkers and other standees with disabilities
who do not use wheelchairs but have difficulty using steps (e.g., an
elderly person who can walk on a plane without use of a mobility aid but
cannot raise his or her legs sufficiently to climb bus steps) must also
be permitted to use the lift, on request.
The requirements in this section apply to both public and private
entities.
On fixed route systems, the entity must announce stops. These stops
include transfer points with other fixed routes. This means that any
time a vehicle is to stop where a passenger can get off and transfer to
another bus or rail line (or to another form of transportation, such as
commuter rail or ferry), the stop would be announced. The announcement
can be made personally by the vehicle operator or can be made by a
recording system. If the vehicle is small enough so that the operator
can make himself or herself heard without a P.A. system, it is not
necessary to use the system.
Announcements also must be made at major intersections or destination
points. The rule does not define what major intersections or
destination points are. This is a judgmental matter best left to the
local planning process. In addition, the entity must make announcements
at sufficient intervals along a route to orient a visually impaired
passenger to his or her location. The other required announcements may
serve this function in many instances, but if there is a long distance
between other announcements, fill-in orientation announcements would be
called for. The entity must announce any stop requested by a passenger
with a disability, even if it does not meet any of the other criteria
for announcement.
When vehicles from more than one route serve a given stop or station,
the entity must provide a means to assist an individual with a visual
impairment or other disability in determining which is the proper
vehicle to enter. Some entities have used external speakers. UMTA is
undertaking a study to determine what is the best available technology
in this area. Some transit properties have used colored mitts, or
numbered cards, to allow passengers to inform drivers of what route they
wanted to use. The idea is to prevent, at a stop where vehicles from a
number of routes arrive, a person with a visual impairment from having
to ask every driver whether the bus is the right one. The rule does not
prescribe what means is to be used, only that some effective means be
provided.
Service animals shall always be permitted to accompany their users in
any private or public transportation vehicle or facility. One of the
most common misunderstandings about service animals is that they are
limited to being guide dogs for persons with visual impairments. Dogs
are trained to assist people with a wide variety of disabilities,
including individuals with hearing and mobility impairments. Other
animals (e.g., monkeys) are sometimes used as service animals as well.
In any of these situations, the entity must permit the service animal to
accompany its user.
Part 38 requires a variety of accessibility equipment. This section
requires that the entity use the equipment it has. For example, it
would be contrary to this provision for a transit authority to bolt its
bus lifts shut because transit authority had difficulty maintaining the
lifts. It does little good to have a public address system on a vehicle
if the operator does not use it to make announcements (except, as noted
above, in the situation where the driver can make himself or herself
heard without recourse to amplification.)
Entities must make communications and information available, using
accessible formats and technology (e.g., Braille, large print, TDDs) to
obtain information about transportation services. Someone cannot
adequately use the bus system if schedule and route information is not
available in a form he or she can use. If there is only one phone line
on which ADA paratransit eligible individuals can reserve trips, and the
line is chronically busy, individuals cannot schedule service. Such
obstacles to the use of transportation service are contrary to this
section. (The latter could, in some circumstances, be viewed as a
capacity constraint.)
It is inconsistent with this section for a transit provider to refuse
to let a passenger use a lift at any designated stop, unless the lift is
physically unable to deploy or the lift would be damaged if it did
deploy (see discussion under 37.123). In addition, if a temporary
situation at the stop (e.g., construction, an accident, a landslide)
made the stop unsafe for anyone to use, the provider could decline to
operate the lift there (just as it refused to open the door for other
passengers at the same point). The provider could not, however, declare
a stop ''off limits'' to persons with disabilities that is used for
other persons. If the transit authority has concerns about barriers or
safety hazards that peculiarly affect individuals with disabilities that
would use the stop, it should consider making efforts to move the stop.
Under DOT hazardous materials rules, a passenger may bring a portable
medical oxygen supply on board a vehicle. Since the hazardous materials
rules permit this, transit providers cannot prohibit it. For further
information on hazardous materials rules, as they may affect
transportation of assistive devices, entities may contact the
Department's Research and Special Programs Administration, Office of
Hazardous Materials Transportation (202-366-0656).
One concern that has been expressed is that transportation systems
(particularly some rail systems) may make it difficult for persons with
disabilities to board or disembark from vehicles by very rapidly closing
doors on the vehicles before individuals with disabilities (who may move
more slowly through crowds in the vehicle or platform than other
persons) have a chance to get on or off the vehicle. Doing so is
contrary to the rule; operators must make appropriate provision to give
individuals with disabilities adequate time to board or disembark.
Private over-the-road bus (OTRB) service is, first of all, subject to
all the other private entity requirements of the rule. The requirements
of this section are in addition to the other applicable provisions.
Boarding assistance is required. The Department cannot require any
particular boarding assistance devices at this time. Each operator may
decide what mode of boarding assistance is appropriate for its
operation. We agree with the discussion in the DOJ Title II rule's
preamble that carrying is a disfavored method of providing assistance to
an individual with a disability. However, since accessible private
OTRBs cannot be required by this rule, there may be times when carrying
is the only available means of providing access to an OTRB, if the
entity does not exercise its discretion to provide an alternative means.
It is required by the rule that any employee who provides boarding
assistance -- above all, who may carry or otherwise directly physically
assist a passenger -- must be trained to provide this assistance
appropriately and safely.
The baggage priority provision for wheelchairs and other assistive
devices involves a similar procedure to that established in the
Department's Air Carrier Access Act rule (14 CFR part 382). In brief,
it provides that, at any given stop, a person with a wheelchair or other
assistive device would have the device loaded before other items at this
stop. An individual traveling with a wheelchair is not similarly
situated to a person traveling with luggage. For the wheelchair user,
the wheelchair is an essential mobility device, without which travel is
impossible. The rationale of this provision is that, while no one wants
his or her items left behind, carrying the wheelchair is more important
to its user than ordinary luggage to a traveler. If it comes to an
either/or choice (the wheelchair user's luggage would not have any
priority over other luggage, however). There would be no requirement,
under this provision, for ''bumping'' baggage already on the bus from
previous stops in order to make room for the wheelchair.
The entity could require advance notice from a passenger in only one
circumstance. If a passenger needed boarding assistance, the entity
could require up to 48 hours' advance notice for the purpose of
providing needed assistance. While advance notice requirements are
generally undesirable, this appears to be a case in which a needed
accommodation may be able to be provided successfully only if the
transportation provider knows in advance that some extra staffing is
needed to accomplish it. While the primary need for advance notice
appears to be in the situation of an unstaffed station, there could be
other situations in which advance notice was needed in order to ensure
that the accommodation could be made. Entities should not ask for
advance notice in all cases, but just in those cases in which it is
really needed for this purpose. Even if advance notice is not provided,
the entity has the obligation to provide boarding assistance if it can
be provided with available staff.
This provision is a service requirement closely related to the
private entity requirements for 37.101-37.105 of this part. Entities
in this category are always required to provide equivalent service,
regardless of what they are doing with respect to the acquisition of
vehicles. The effect of this provision may be to require some entities
to arrange, either through acquiring their own accessible vehicles or
coordinating with other providers, to have accessible vehicles available
to meet the equivalency standards of 37.105 or otherwise to comply with
those standards.
A well-trained workforce is essential in ensuring that the
accessibility-related equipment and accommodations required by the ADA
actually result in the delivery of good transportation service to
individuals with disabilities. The utility of training was recognized
by Congress as well. (See S. Rept. 100-116 at 48.) At the same time, we
believe that training should be conducted in an efficient and effective
manner, with appropriate flexibility allowed to the organizations that
must carry it out. Each transportation provider is to design a training
program which suits the needs of its particular operation. While we are
confident of this approach, we are mindful that the apparent lack of
training has been a source of complaint to UMTA and transit providers.
Good training is difficult and it is essential.
Several points of this section deserve emphasis. First, the
requirements for training apply to private as well as to public
providers, of demand responsive as well as of fixed route service.
Training is just as necessary for the driver of a taxicab, a hotel
shuttle, or a tour bus as it is for a driver in an UMTA-funded city bus
system.
Second, training must be to proficiency. The Department is not
requiring a specific course of training or the submission of a training
plan for DOT approval. However, every employee of a transportation
provider who is involved with service to persons with disabilities must
have been trained so that he or she knows what needs to be done to
provide the service in the right way. When it comes to providing
service to individuals with disabilities, ignorance is no excuse for
failure.
While there is no specific requirement for recurrent or refresher
training, there is an obligation to ensure that, at any given time,
employees are trained to proficiency. An employee who has forgotten
what he was told in past training sessions, so that he or she does not
know what needs to be done to serve individuals with disabilities, does
not meet the standard of being trained to proficiency.
Third, training must be appropriate to the duties of each employee.
A paratransit dispatcher probably must know how to use a TDD and enough
about various disabilities to know what sort of vehicle to dispatch. A
bus driver must know how to operate lifts and securement devices
properly. A mechanic who works on lifts must know how to maintain them.
Cross-training, while useful in some instances, is not required, so
long as each employee is trained to proficiency in what he or she does
with respect to service to individuals with disabilities.
Fourth, the training requirement goes both to technical tasks and
human relations. Employees obviously need to know how to run equipment
the right way. If an employee will be assisting wheelchair users in
transferring from a wheelchair to a vehicle seat, the employee needs
training in how to do this safely. But every public contact employee
also has to understand the necessity of treating individuals with
disabilities courteously and respectfully, and the details of what that
involves.
One of the best sources of information on how best to train personnel
to interact appropriately with individuals with disabilities is the
disability community itself. Consequently, the Department urges
entities to consult with disability organizations concerning how to
train their personnel. Involving these groups in the process of
establishing training programs, in addition to providing useful
information, should help to establish or improve working relationships
among transit providers and disability groups that, necessarily, will be
of long duration. We note that several transit providers use persons
with disabilities to provide the actual training. Others have reported
that role playing is an effective method to instill an appreciation of
the particular perspective of one traveling with a disability.
Finally, one of the important points in training concerns differences
among individuals with disabilities. All individuals with disabilities,
of course, are not alike. The appropriate ways one deals with persons
with various kinds of disabilities (e.g., mobility, vision, hearing, or
mental impairments) are likely to differ and, while no one expects bus
drivers to be trained as disability specialists, recognizing relevant
differences and responding to them appropriately is extremely
significant. Public entities who contract with private entities to have
service provided -- above all, complementary paratransit -- are
responsible for ensuring that contractor personnel receive the
appropriate training.