31 CFR 0.0 31 CFR Subtitle A (7-1-92 Edition)
31 CFR 0.0 Office of the Secretary of the Treasury
31 CFR 0.0 Title 31 -- Money and Finance: Treasury
31 CFR 0.0 (This book contains parts 0 to 199)
Part
SUBTITLE A -- Office of the Secretary of the Treasury 0
SUBTITLE B -- Regulations Relating to Money and Finance:
chapter i -- Monetary Offices, Department of the Treasury 51
Editorial Note: Other regulations issued by Department of the
Treasury appear in Title 12, Chapter I; Title 19, Chapter I; Title 26,
Chapter I; Title 27, Chapter I; Title 31, Chapters II, IV, V, VI, and
VII, and Title 48, Chapter 10.
Cross Reference: General Accounting Office: See 4 CFR Chapter I.
31 CFR 0.0 31 CFR Subtitle A (7-1-92 Edition)
31 CFR 0.0 Office of the Secretary of the Treasury
31 CFR 0.0 Subtitle A -- Office of the
31 CFR 0.0 Secretary of the Treasury
Part
Page
0 Standards of conduct
1 Disclosure of records
2 National security information
3 Claims regulations and indemnification of Department of Treasury
employees
4 Employees' personal property claims
5 Claims collection
6 Applications for awards under the Equal Access to Justice Act
7 Employee inventions
8 Practice before the Bureau of Alcohol, Tobacco and Firearms
9 Effects of imported articles on the national security
10 Practice before the Internal Revenue Service
11 Operation of vending stands by the blind on Federal property under
the control of the Treasury Department
13 Procedures for providing assistance to State and local governments
in protecting foreign diplomatic missions
14 Right to Financial Privacy Act
15 Post employment conflict of interest
16 Regulations implementing the Program Fraud Civil Remedies Act of
1986
17 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the Department of the Treasury
18 Temporary regulations relating to the tax treatment of Conrail
public sale
19 Governmentwide debarment and suspension (nonprocurement) and
governmentwide requirements for drug-free workplace (grants)
21 New restrictions on lobbying
25 Prepayment of foreign military sales loans made by the Defense
Security Assistance Agency and foreign military sales loans made by the
Federal Financing Bank and guaranteed by the Defense Security Assistance
Agency
26 Environmental Review of Actions by Multilateral Development Bands
(MDBs)
31 CFR 0.0
31 CFR 0.0 31 CFR Subtitle A (7-1-92 Edition)
31 CFR 0.0 Office of the Secretary of the Treasury
31 CFR 0.0 PART 0 -- STANDARDS OF CONDUCT
31 CFR 0.0 Subpart A -- General Provisions
Sec.
0.735-1 Purpose.
0.735-2 Scope.
0.735-3 Policy.
0.735-4 Definitions.
0.735-5 Assignment of responsibilities.
0.735-6 Department.
0.735-7 The Department's counselor.
0.735-8 Deputy counselor.
0.735-9 Role of personnel officers.
0.735-10 Bureaus.
0.735-11 Supervisors.
0.735-12 Employees.
31 CFR 0.0 Subpart B -- Rules of Conduct
0.735-20 General.
0.735-21 Summary of provisions of criminal code which define
conflicts of interest.
0.735-30 Proscribed actions; responsibilities.
0.735-31 Political activity.
0.735-32 Strikes.
0.735-33 Gifts or gratuities from government employees.
0.735-34 Gifts or gratuities from outside sources.
0.735-35 Gifts or gratuities from foreign governments.
0.735-36 Outside financial interests.
0.735-37 Using official designation.
0.735-38 Purchase of government property.
0.735-39 Outside employment and other outside activities -- General
rules.
0.735-40 Teaching, writing, lecturing, and speechmaking.
0.735-41 Gambling, betting, and lotteries.
0.735-42 Use of intoxicants; controlled substances.
0.735-43 Indebtedness; tax obligations.
0.735-44 Care of documents.
0.735-45 Lending or borrowing money.
0.735-46 Use of government cars.
0.735-47 Disclosure of information to the public.
0.735-48 Giving testimony.
0.735-49 Personal communications.
0.735-50 Use of Federal property.
0.735-51 Conduct while on official duty or on Government property.
0.735-52 Influencing legislation or petitioning Congress.
0.735-53 Soliciting, selling, and canvassing.
0.735-54 Office of Personnel Management examination processes.
0.735-55 Falsification of official records.
0.735-56 Miscellaneous statutory provisions.
0.735-57 General conduct prejudicial to the Government.
0.735-58 Nondiscrimination.
0.735-59 Possession of weapons and explosives.
0.735-60 Privacy Act.
31 CFR 0.0 Subpart C -- Confidential Statement of Employment and
Financial Interest
0.735-90 General.
0.735-91 Criteria for designation of employees required to submit
confidential statements.
0.735-92 Exceptions.
0.735-93 Grievances; form and content of statements.
0.735-94 Time and place for submission of employees' initial
statements.
0.735-95 Annual statements.
0.735-96 Interests of employees' relatives.
0.735-97 Information not known by employees.
0.735-98 Information excluded.
0.735-99 Review of statements.
0.735-100 Confidentiality of employees' statements.
0.735-101 Effect of employees' statements on other requirements.
31 CFR 0.0 Subpart D -- Executive Personnel Financial Disclosure
Requirements
0.735-150 General.
0.735-151 Procedure.
0.735-152 Penalties.
0.735-153 Supplemental information.
0.735-154 Exemptions from filing.
0.735-155 Ethics Agreements.
31 CFR 0.0 Subpart E -- Special Government Employees
0.735-210 Applicability of 18 U.S.C. 203 and 205.
0.735-211 Applicability of 18 U.S.C. 207.
0.735-212 Applicability of 18 U.S.C. 208.
0.735-215 Applicability of Subpart B of this part.
0.735-220 Advice on rules of conduct and conflicts of interest
statutes.
0.735-221 Industry, labor, agricultural, and other representatives.
0.735-230 Information and assistance to special Government employees
and their supervisors.
0.735-231 Disclosure of financial interests.
0.735-232 Service with other Federal agencies.
0.735-233 Resolution of cases involving a conflict or apparent
conflict of interest.
0.735-234 Legal interpretation.
0.735-235 Safeguarding information.
31 CFR 0.0 Subpart F -- Employees Stationed in Foreign Countries
0.735-300 Purpose.
0.735-301 Policy.
0.735-302 General provisions governing conduct in foreign countries.
0.735-310 Basic rule of conduct.
0.735-311 Applicability to American employees.
0.735-312 Applicability to members of families.
0.735-313 Expression of thoughts and views.
0.735-314 Political activities.
0.735-315 Acceptance of employment by a member of a family.
0.735-316 Sale of personal automobiles and other personal property.
0.735-320 Responsibility for guidance and assistance.
Authority: 5 U.S.C. 301, 5 U.S.C. 7301, Executive Order 11222, 18
U.S.C. 208, 5 CFR part 735.
Source: 53 FR 52090, Dec. 23, 1988, unless otherwise noted.
31 CFR 0.0 Subpart A -- General provisions
31 CFR 0.735-1 Purpose.
This part describes the Standards of Conduct required of all
Department of the Treasury employees. The regulations in this part
implement the Office of Personnel Management regulations (5 CFR part
735) in accordance with Executive Order 11222, as amended. The
Standards of Conduct in this part are not to be considered all inclusive
and may be supplemented by the Department and bureaus to meet specific
needs. The absence of a specific published standard of conduct covering
an act tending to discredit an employee or the Department does not mean
that such an act is condoned, is permissible, or would not call for and
result in corrective or disciplinary action.
31 CFR 0.735-2 Scope.
This part covers the following subject areas:
(a) Subpart A of this part sets the general policy and definitions to
be applied in interpreting the Department's Minimum Standards of Conduct
and allocates responsibility in implementing these standards;
(b) Subpart B of this part summarizes the principal conflict of
interest statutes and defines rules of conduct and procedures for all
regular employees;
(c) Subpart C of this part contains rules concerning confidential
financial disclosure;
(d) Subpart D of this part contains rules concerning public financial
disclosure by Executive Personnel;
(e) Subpart E of this part applies to special Government employees
and advisers;
(f) Subpart F of this part sets forth additional rules and guidelines
applicable to employees stationed in foreign countries.
31 CFR 0.735-3 Policy.
(a) Executive Order 11222 of May 8, 1965, as amended (18 U.S.C. 201
note), states the basic philosophy of conduct for those who carry out
the public business:
Where government is based on the consent of the governed, every
citizen is entitled to have complete confidence in the integrity of
their government. Each individual officer, employee, or adviser of
government must help to earn and must honor that trust by his (or her)
own integrity and conduct in all official actions.
(b) Personnel of the Department of the Treasury are expected to
adhere to the above stated principles and to standards of behavior that
will reflect credit on the Government. The Department's position is
that of having confidence in its employees and of taking a positive and
reasonable approach to the matter of maintaining the high Standards of
Conduct necessary in the transaction of Treasury activities. Those few
employees who violate the laws or the rules or regulations on conduct in
this part will be disciplined in accordance with the gravity of the
offenses committed.
(c) Disciplinary action may be in addition to any penalty prescribed
by law. If disciplinary or other remedial action is necessary, it will
be taken only after consideration of the explanation of the employee and
will be effected in accordance with applicable laws and regulations.
Remedial action may include, but is not limited to:
(1) Changes in assigned duties.
(2) Disqualification for a particular assignment.
(3) Divestment by the employee of his or her conflicting interest.
(4) Disciplinary action.
31 CFR 0.735-4 Definitions.
In this part: (a) Regular employee or employee means an officer or
employee of the Department of the Treasury, but does not include a
special Government employee.
(b) Special Government employee means an officer or employee of the
Department of the Treasury, or an employee detailed from another agency
to the Department, who is retained, designated, appointed, employed, or
detailed to perform, with or without compensation, for not to exceed 130
days during any period of 365 consecutive days, temporary duties either
on a full-time or intermittent basis.
(c) Adviser means a person who provides advice as a representative of
an outside group and not as an employee or special Government employee.
(d) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or
any other organization or institution.
(e) Bureau means for purposes of these regulations the Internal
Revenue Service, Office of the Comptroller of the Currency, Bureau of
Alcohol, Tobacco and Firearms, U.S. Customs Service, U.S. Secret
Service, Federal Law Enforcement Training Center, Financial Management
Service, Bureau of the Public Debt, U.S. Savings Bonds Division, United
States Mint, Bureau of Engraving & Printing, Departmental Offices and
the Legal Division.
31 CFR 0.735-4 Responsibilities
31 CFR 0.735-5 Assignment of responsibilities.
The assignment of responsibilities to carry out the provisions of
this part is described below in 0.735-6 -- 0.735-12.
31 CFR 0.735-6 Department.
The Department's responsibilities are to:
(a) Issue policy and basic Standards of Conduct applicable to all
Treasury employees,
(b) Periodically review the basic standards issued and to review
initially and periodically those additional standards issued by the
bureaus,
(c) Set requirements to ensure that supervisors and employees are
aware of the Standards of Conduct, of their responsibilities in
maintaining and adhering to those standards and of the fact that
disciplinary action will be taken in cases of failure to maintain or
adhere to them, and
(d) Establish procedures for furnishing advice to management and to
employees on the application of Standards of Conduct.
31 CFR 0.735-7 The Department's counselor.
The Deputy General Counsel is the Ethics Counselor for the Department
on matters covered by the regulations in this part. In addition, the
Deputy General Counsel is the Department's Designated Agency Ethics
Official (DAEO) for the purposes of the Ethics in Government Act, as
amended. There will be an Alternate Designated Agency Ethics Official
and such Deputy Designated Ethics Officials as the Deputy General
Counsel appoints. The Deputy General Counsel is responsible for
coordination of the counseling service within the Department and for
interpretations on questions of conflicts of interest and other matters
under this part. This includes providing the guidance required by
section 206(b)(7) of the Ethics in Government Act.
31 CFR 0.735-8 Deputy counselors.
The Chief Counsel or Legal Counsel for each bureau, or his or her
designee, is the Deputy Ethics Counselor for that bureau. As such, his
or her responsibility is to give authoritative advice and guidance on
conflicts of interest and other matters covered by this part.
31 CFR 0.735-9 Role of personnel officers.
(a) Personnel officers at all organizational levels are responsible
for providing general guidance and assistance to supervisors and
employees in implementing and adhering to the provisions of the
regulations in this part. Where questions arise or where advice is
sought by other supervisors or employees which involve either advice or
interpretation which is legal in nature, personnel officers will be
responsible for seeing that the advice or interpretation is sought or
obtained from the Deputy Ethics Counselor or the Ethics Counselor, as
appropriate. Personnel officers will ensure that a briefing is given to
all new employees on the rules in this part and the statutory provisions
summarized in 0.735-21. These officers will further ensure that all
departing employees are briefed on the applicable post-employment
restrictions of 18 U.S.C. 207, 5 CFR part 737, this part and other
applicable restrictions.
(b) The Department's Director of Personnel will issue a directive
detailing implementation of this requirement.
31 CFR 0.735-10 Bureaus.
The responsibilities of the bureaus are to:
(a) Provide employees with basic Standards of Conduct and any
additional Standards and explanations necessary to effectively carry out
the policy of the President and of the Department,
(b) See that employees and supervisors are aware of their
responsibilities in maintaining and adhering to established Standards of
Conduct,
(c) Inform employees as to how and from whom they may get additional
clarification of Standards of Conduct and related laws, rules, and
regulations,
(d) Advise employees of the location or availability or regulations
governing conduct in and on Treasury buildings and grounds ( 0.735-51),
(e) Ensure that appropriate disciplinary action is taken against
employees who violate Standards of Conduct and related laws, rules and
regulations and against supervisors who fail to carry out their
responsibilities in taking or recommending disciplinary action when
appropriate against employees under them who have committed such
offenses, and
(f) Review and evaluate the effectiveness of standards issued and
their application.
Note: Bureaus shall provide employees with copies of the regulations
in this part and will require a written receipt from each employee. New
employees shall be given copies of the regulations in this part at the
time of their employment. All employees will be timely reminded of
periodic requirements (such as the requirement to promptly file and pay
tax during the tax season, political restrictions during election
campaigns, etc.) as well as continually educated concerning these rules.
This may be done by posting the Standards on the bulletin board, by
reminders in house organs or by other forms of written communication,
including payroll inserts. In addition, employees will be reminded
annually of their obligation to follow the Standards of Conduct.
31 CFR 0.735-11 Supervisors.
It is the responsibility of each supervisor to:
(a) Know the Standards of Conduct applicable to him or her and the
employees under his or her supervision,
(b) Advise the employees under his or her supervision to help them
obtain advice on the application of the Standards of Conduct,
(c) Adhere to the Standards of Conduct,
(d) See that the employees under his or her supervision know and
adhere to them also, and
(e) Take or recommend disciplinary action when appropriate in cases
where the employees under his or her supervision violate the Standards
or the principles upon which they are based.
31 CFR 0.735-12 Employees.
(a) Each employee in the Department is required to:
(1) Know the Standards of Conduct and their application in his or her
case,
(2) Seek information from his or her supervisor in case of doubt or
misunderstanding on the application of the Standards of Conduct,
(3) Adhere to the Standards of Conduct, and
(4) Be aware of the consequences of violation of the laws, rules and
regulations regarding conduct.
(b) Any employee who has information indicating that another employee
engaged in any criminal conduct or violated any of the rules of these
Standards of Conduct shall promptly convey such information to the
Inspector General or to the appropriate internal affairs office of the
Bureau of Alcohol, Tobacco and Firearms; U.S. Customs Service;
Internal Revenue Service; or U.S. Secret Service. (An attorney in the
Legal Division who obtains such information during the course of
representation shall instead report to the appropriate Chief or Legal
Counsel or the Deputy General Counsel.) The confidentiality of the
source of such report will be maintained in a manner appropriate to the
circumstances of the case.
(c) Employees shall report information of the type discussed in
paragraph (b) of this section related to foreign intelligence or other
information of the type covered by Executive Order 12356 to the
Inspector General except that Legal Division attorneys who gain
information during representation shall report this to the Deputy
General Counsel.
31 CFR 0.735-12 Subpart B -- Rules of Conduct
31 CFR 0.735-12 Conflict of Interest Statutes
31 CFR 0.735-20 General.
The elimination of conflicts of interest in the Federal service is
one of the most important objectives in establishing general standards
of conduct. A conflict of interest situation may be defined as one in
which a Federal employee's private interest, usually of an economic
nature, conflicts or raises a reasonable question of conflict with his
or her public duties and responsibilities. The potential conflict is of
concern whether it is real or only apparent. In addition to the
conflict of interest statutes, summarized in 0.735-21, the Department
has rules concerning conflicts of interest that appear in 0.735.34,
0.735.35, 0.735.36, and 0.735.39.
31 CFR 0.735-21 Summary of provisions of criminal code which define
conflicts of interest.
The following is a brief sumary of the provisions of the criminal
code, 18 U.S.C. 201 et seq. , which define the conflicts of interest
which are subject to fine and imprisonment. These provisions have been
interpreted by the Attorney General in a memorandum distributed to Heads
of Departments and Agencies, dated January 28, 1963, 28 FR 985 and
published in a note following 18 U.S.C. 201. Specific examples of the
application of the post-employment restrictions are provided by the
Office of Government Ethics in 5 CFR part 737. It should be noted that
lesser prohibitions apply to special Government employees than to
regular employees as indicated in Subpart E of this part.
(a) 18 U.S.C. 203. Section 203 prohibits an employee from receiving,
agreeing to receive or asking for, directly or indirectly, any
compensation for services, otherwise than as provided by law, rendered
by the employee or another in relation to any matter in which the United
States is a party or has a substantial interest, before any Department
or agency.
Example: any Government employee's acceptance of compensation for
Federal tax representation is prohibited, whether the employee provided
the representation or not.
(b) 18 U.S.C. 205. Section 205 prohibits an employee from:
(1) Acting as an agent or attorney in prosecuting any claim against
the United States or receiving any share or interest in such claim for
assistance in its prosecution, or
(2) Acting as an agent or attorney for anyone before any Department,
agency or court in connection with any particular matter in which the
United States is a party or has a direct and substantial interest.
This section does not prohibit a regular Government employee from
acting with official approval and with or without compensation as agent
or attorney for his or her parents, spouse, child or any person for
whom, or for any estate for which, he or she is serving as guardian or
other fiduciary, with certain exceptions set forth in section 205. (See
0.735-39 for Departmental restrictions.) The provisions of this section
and section 203 do not prevent an employee, if not inconsistent with the
faithful performance of his or her duties, from acting without
compensation as agent or attorney for any person who is the subject of
disciplinary, loyalty or other personnel administration matter in
connection with such matter.
(c) 18 U.S.C. 207(a). Section 207(a) prohibits a former employee at
any time after his or her employment has ceased, from acting as agent or
attorney (including making any oral or written communications with the
intent to influence) for anyone other than the United States in
connection with any particular matter involving a specific party or
parties in which the United States is a party or has a direct and
substantial interest and in which he or she participated personally and
substantially as an employee.
(d) 18 U.S.C. 207(b)(i). Section 207(b)(i) prohibits any such former
Government employee within two years after his or her employment from
acting as an agent or attorney for, or otherwise representing (including
making an oral or written communication with the intent to influence)
anyone other than the United States in connection with any particular
matter involving a specific party or parties in which the United States
is a party or directly and substantially interested and which was under
his or her official responsibility within one year prior to the
termination of such responsibility.
(e) 18 U.S.C. 207(b)(ii). Section 207(b)(ii) imposes an additional
restriction which applies only to ''Senior Employees.'' All executive
level employees, together with those in Senior Executive Service who
have been designated in 5 CFR 737.33 are ''Senior Employees.'' A former
''Senior Employee'' may not aid or assist in representing by personal
presence at a formal or informal appearance for a period of two years
after employment with respect to any particular matter in which the
employee would be prohibited from personally representing by Section
207(a) on account of personal and substantial participation as a
Government employee.
(f) 18 U.S.C. 207(c). Section 207(c) prohihits a former ''Senior
Employee'' from acting as an agent or attorney for anyone other than the
United States, or making an oral or written communication with the
intent to influence, in any particular matter (but not necessarily
involving a specific party or parties) before or to the employee's
former agency for one year after employment. Certain Treasury
components have been designated as ''separate agencies'' for purposes of
this rule in 5 CFR 737.31. However, heads of these components may not
take advantage of this separate agency designation and are barred from
appearing before the Department as a whole. Similarly, those who
supervise a component even though not part of it may not avail
themselves of the designation.
(g) 18 U.S.C. 208. Section 208 prohibits any employee from
participating personally and substantially as a Government employee in
any particular matter in which to his or her knowledge the employee, the
employee's spouse, minor child, partner, organization in which the
employee is serving as an officer, director, trustee, partner or
employee, or any person or organization with whom he or she is
negotiating or has any arrangement concerning prospective employment,
has a financial interest. An employee may be exempted from the
provision of this section if he or she makes full disclosure of the
financial interest to the official responsible for his or her
appointment and receives in advance a written determination by that
official that the interest is not so substantial as to be likely to
affect the integrity of that employee's service. (Example: an auditor
who owns stock in a company may not perform an audit of that company and
an attorney working on a matter involving a company may not negotiate
for employment with the law firm representing the company.) See
0.735-37 for specific rules relating to negotiating employment. See
0.735-36(e) for a general exemption of certain financial interests from
the scope of this prohibition. Exemptions from the prohibition of
section 208 may be made by general rule or regulation pursuant to
section 208(b)(2). Specific exemptions pursuant to section 208(b)(1)
may be made:
(1) For employees in the Departmental Offices by a superior official
not lower than Deputy Assistant Secretary;
(2) For employees in bureaus by an official designated by the bureau
head (this authority should not be delegated lower than the equivalent
of Deputy Assistant Secretary); and
(3) For employees in the Legal Division by the Chief or Legal Counsel
or Deputy General Counsel.
(h) 18 U.S.C. 209. Section 209 prohibits any employee from receiving
any salary or any contribution to or supplementation of salary as
compensation for services as a Government employee from any source other
than the Government. This section does not apply to a special
Government employee, and does not prevent participation in any bona fide
pension, retirement, profit sharing, or other welfare or benefit plan
maintained by a former employer. This section also does not prohibit
payment or acceptance of certain contributions, awards or expenses in
connection with Government employee training programs or attendance at
meetings authorized under 5 U.S.C. 4101-4118. In addition, payments by
state or local governments and relocation expenses paid to White House
fellows or participants in executive exchange programs may be accepted.
31 CFR 0.735-21 Rules of Conduct
31 CFR 0.735-30 Proscribed actions; responsibilities.
(a) An employee shall avoid any action, whether or not specifically
prohibited by this part, which might result in, or create the appearance
of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing complete independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Afffecting adversely the confidence of the public in the
integrity of the Government.
(b) An employee shall not unlawfully disclose personal information
with respect to an individual which information has been obtained in the
course of the employee's official duties.
(c) Employees may express their personal views on assigned matters to
their immediate supervisors. Nevertheless, they are required to
implement authorized decisions of their supervisors.
(d) Employees are expected to be courteous and tactful in their
official relations with the public.
31 CFR 0.735-31 Political activity.
Employees have the right to vote as they may choose and to express
their opinions on all political subjects and candidates, but are
forbidden to take active part in political management or campaigns (5
U.S.C. 7324). Political activity in some local elections is permissible;
but before employees engage in such activity, they should familiarize
themselves with the statutory provisions and the Office of Personnel
Management's regulations on this subject (5 U.S.C. 7324-7327 and 5 CFR
part 733). Employees are free to make political contributions, subject
to two restrictions. First, it is unlawful for employees to solicit,
receive or to be concerned with political assessments, subscriptions, or
contributions for any political purpose whatever from other employees (5
U.S.C. 7323). Second, employees may not make contributions to an officer
or employee of the Government who is the employer or employing authority
of the contributing employee, or to an authorized committee of that
officer or employee (18 U.S.C. 603). Employees may be disqualified from
employment for knowingly supporting or advocating the violent overthrow
of our constitutional form of government (5 U.S.C. 7532 and E.O. 10450,
as amended).
31 CFR 0.735-32 Strikes.
Employees shall not strike against the Government (5 U.S.C. 7311).
31 CFR 0.735-33 Gifts or gratuities from Government employees.
(a) Employees of the Federal Government are prohibited from
soliciting contributions from other employees for gifts or presents to
persons in superior official positions. Neither may such superiors
receive any gift or present offered to them from employees in the
Government receiving less salary than themselves (5 U.S.C. 7351).
(b) Collections of spontaneous origin may be made for voluntary token
gifts on special occasions, such as marriage, retirement, resignation or
for expressing condolences in cases of illness or death. Solicitations
for such gifts should be limited to employees in the immediate office of
the employee concerned and a few close associates with whom he or she
has worked. However, supervisors may not solicit contributions from an
employee under their supervision under any circumstances. In no case
should general solicitations be made for a gift, nor should gifts to the
recipients be in cash, except that small amounts (e.g., under $20)
remaining after the purchase of a gift may be included with the gift. A
collection may be made, in accordance with the limitations set forth in
paragraphs (a) and (b) of this section, with supervisory approval, for a
cash gift to assist in a catastrophic illness or disaster, provided that
these collections are limited to co-workers of approximately equal
status to the recipient employee, and to his or her immediate
supervisors.
(c) Employees must not be placed under pressure for personal
contributions and the solictor must make it clear to all prospective
contributors that contributions are voluntary.
31 CFR 0.735-34 Gifts or gratuities from outside sources.
(a) Except as provided in paragraphs (b) and (c) of this section, an
employee shall not solicit or accept, directly or indirectly, any gift,
gratuity, favor, entertainment, loan, or any other thing of monetary
value from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the Department of the Treasury,
(2) Conducts operations or activities that are regulated by the
Department, or
(3) Has interests that may be substantially affected by the
performance or nonperformance of his or her official duty.
(b) General exceptions to the rule in paragraph (a) of this section
are as follows unless otherwise precluded by heads of bureaus:
(1) Acceptance of gifts, entertainment, and food is proper when
circumstances make it clear that obvious family or personal
relationships (such as those between the employee and the parents,
children, friends or spouse of the employee), rather than the business
relationship of the persons concerned, are the motivating factors.
(Friends for purposes of this rule are those with whom the employee has
a long standing or close personal relationship.)
(2) Acceptance of food or refreshments of nominal value on infrequent
occasions is permitted when such action occurs in the ordinary course of
a luncheon or dinner meeting or other meeting or on an inspection tour
where an employee may properly be in attendance, provided there is no
pattern of accepting such food or refreshments from a single source.
This exception also applies when Treasury officials are in attendance at
large organized functions which are considered appropriate ones to
attend because of the recognized benefit of such attendance to Treasury
operations.
(3) If food or refreshments are received under circumstances that
preclude immediate payment without embarrassment, and the acceptance is
not authorized by paragraph (b)(1) or (2) of this section, it will be
permitted to be accepted, but only if, within a reasonable period of
time, the employee actually reimburses the host or has made a good faith
effort to reimburse a host who will not accept reimbursement.
(4) Employees may accept gifts, the personal receipt of which is
prohibited by these rules, where under the immediate circumstances,
refusal would create embarrassment if:
(i) The employee promptly turns the gift over to the Departmental
Gift Unit (or as specified in bureau directive) for return or other
appropriate disposition; or
(ii) The employee directly returns the gift or writes a brief letter
to the donor advising that Department rules do not permit the employee
to accept the item. The employee will then submit the letter and the
gift item to his or her supervisor who will arrange for mailing the
letter and returning the gift item to the donor at Government expense.
(5) Employees may accept loans from banks or other financial
institutions on customary terms to finance proper and usual activities
of employees, such as home mortgage loans, except where prohibited by
law or regulation.
(6) Employees may accept unsolicited advertising or promotional
material such as pens, pencils, note pads, calendars and other items of
nominal intrinsic value. Employees may accept discounts afforded to
Government employees as a whole, or to other groups of which the
employee is a part, except when the entity is one which has business
dealings with or is regulated by the employee's bureau.
(c) The rules set forth in paragraphs (a) and (b) of this section
also apply to an employee who consents to the offer or acceptance of any
gift, gratuity, favor, entertainment, loan, or any other thing of
monetary value by a person other than that employee, under circumstances
which might reasonably be construed as influencing or improperly
relating to past, present, or future performance of the employee's
governmental duties.
(d) The receipt of payment or reimbursement by outside sources for
the expenses of travel and subsistence for activities related to
Government employment is permitted only in accordance with 0.735-40.
(e) This section is not an attempt to classify all possible
situations involving gifts or gratuities from outside sources. It is
presented to assist management and employees in interpreting the rule
and applying it. Cases must be judged on their individual merits.
Employees must exercise sound judgment to comply with the intent of the
rule. For example, acceptance of a gift permitted under paragraph (b)
of this section might be inappropriate in certain circumstances. If
there is any reasonable doubt about accepting a gift or gratuity, the
employee should submit his or her questions in writing to the immediate
supervisor and obtain a written opinion as to whether acceptance of the
gift or gratuity is permissible under the rules of conduct.
31 CFR 0.735-35 Gifts or gratuities from foreign governments.
(a) The Constitution prohibits employees from accepting from foreign
governments, except with the consent of the Congress, presents
emoluments, offices, or titles. Congress has given its consent in 5
U.S.C. 7342 to the acceptance of certain specified gifts and
decorations. Employees may retain gifts of minimal value meant as a
souvenir or mark of courtesy if not prohibited by agency regulations.
(b) Minimal value for foreign government gifts to Treasury employees
is $180.00 (or such higher amount established in 41 CFR part 101-49).
(c) All gifts in excess of minimal value, the refusal of which would
likely cause offense or embarrassment or otherwise adversely affect the
foreign relations of the United States, may be accepted and deposited
with the Department within sixty days of acceptance.
(d) Deposit with the Department means delivery to the Departmental
Gift Unit or other deposit authorized in the current Treasury Directive
on Foreign Gifts.
(e) Any foreign gift must be reported as prescribed in the current
Treasury Directive on Foreign Gifts.
31 CFR 0.735-36 Outside financial interests.
(a) An employee shall not:
(1) Have a direct or indirect financial interest that may reasonably
be expected to be in conflict, or appears to be in conflict, with his or
her Government duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through his or
her employment with the Department.
(b) Any employee who has a financial or other interest which may be
affected by a matter to which the employee is assigned, shall promptly
notify his or her supervisor of the potential conflict of interest. The
supervisor is responsible for ensuring that the employee does not work
on any matter which would create a conflict of interest (other interests
which might require disqualification include membership in a nonprofit
organization, financial interests of friends or relatives in a matter,
and the like). Employees should consult with the Ethics Counselor or
supervisor in case of doubt.
(c) An employee who is negotiating for, or has an arrangement
concerning, prospective employment may not participate in a matter in
which the prospective employer has a financial interest. Financial
interest for this rule includes an indirect interest, such as when the
prospective employer is representing a client which has a direct
interest in the matter. To assist employees, the following rules apply
to employment negotiating situations:
(1) An arrangement for employment includes a tacit agreement to
return to a former employer.
(2) A negotiating situation exists either during active negotiation,
where an employee solicits employment, or where an employee does not
promptly reject an unsolicited offer of employment.
(3) The types of matters which the employee must refrain from
participating in include not only particular matters, such as individual
cases, but general matters such as drafting of regulations which would
have a direct and predictable impact on the prospective employer.
(4) Employees should promptly notify their supervisor in writing of
all employment arrangements and negotiations with an individual or
organization which has financial interests actually or potentially
affected by any matter on which the employee is working unless advised
by an Ethics Counselor that a given negotiation need not be reported.
(d) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law, Executive Order 11222, as amended, this part,
or other regulations or directives.
(e) Pursuant to 18 U.S.C. 208(b)(2), the financial interests
described below are deemed to be too remote and inconsequential to
affect the integrity of employees' services. Therefore, an employee
will not be in violation of section 208(a) for participating in a matter
in which he or she has such interest. However, employees should refrain
from participating in matters notwithstanding this waiver if such
participation would result in an improper appearance. The financial
interests referred to above are:
(1) Stocks or bonds of publicly traded corporations with a value of
$1,000 or less;
(2) Stocks or bonds in the investment portfolio of a diversified
mutual fund in which an employee has invested.
31 CFR 0.735-37 Using official designation.
Employees shall not permit their official position, status or
designation to be used in a manner that is intended to further, or gives
the appearance of furthering, the private, financial or business
interests of the user.
31 CFR 0.735-38 Purchase of Government property.
(a) Employees are prohibited from, either directly or indirectly,
bidding or purchasing at any sale of property either owned by the
Government and under control of the employees' bureau (or a bureau over
which the employee exercises supervision) or seized and sold under the
direction of the employees' bureau.
(b) Government property under the control of the Department shall not
be sold to a Government employee (including an employee of any Treasury
bureau other than the disposing bureau), either directly or indirectly,
unless an authorized representative of the bureau disposing of the
property has determined that the sale is in the best interests of the
Government.
(c) Before purchasing any Government property, either directly or
indirectly, from any agency other than Treasury, employees of the
Department shall make known to the disposing agency that they are such
employees. Employees are permitted to purchase such property unless
prohibited by the disposing agency's rules. If the disposing agency's
rules defer to the employing agency's rules, the procedures in paragraph
(b) of this section shall apply to purchases by Treasury employees.
(d) This section does not apply to items sold generally to the public
at fixed prices, such as Mint numismatic products. In addition, a
foreign gift deposited with the Department may be purchased by the donee
employee pursuant to 5 U.S.C. 7342 and 41 CFR part 101-49.
31 CFR 0.735-39 Outside employment and other outside activities --
General rules.
(a) Employees shall not engage in any outside employment or other
outside activities with or without compensation, which --
(1) Interfere with the efficient performance of official duties,
(2) Might bring discredit on or cause unfavorable and justifiable
criticism of the Government,
(3) Might reasonably result in a conflict of interest, or an apparent
conflict of interest, with official duties and responsibilities, or
(4) Might result in the unauthorized use or disclosure of classified
or sensitive information.
(b) Bureau heads will establish appropriate instructions to meet
their particular needs in regard to outside employment and other outside
activities of their employees. Generally, these instructions will
require employees to obtain written permission from appropriate
approving officials. All approvals should be reviewed annually. To
simplify administration of this rule, bureaus may include in their
instructions criteria not inconsistent with the regulations in this part
which provide for outside activities which are clearly permissible and
would not require written permission. Bureaus will retain in employees'
Official Personnel Files all requests whether granted or not. In
addition, bureaus will retain a separate file of all requests and
approvals for the use of the counselor and deputy counselors.
(c) Under 5 U.S.C. App. (section 210 of the Ethics in Government Act
of 1978, Pub. L. 95-521) all employees who are compensated at a pay
grade in the General Schedule of grade 16 or above and who occupy
full-time positions appointment to which is required to be made by the
President, by and with the advice and consent of the Senate, may not
have outside earned income which is in excess of 15 percent of their
salary in any calendar year.
31 CFR 0.735-40 Teaching, writing, lecturing, and speechmaking.
(a) This section sets forth rules regarding teaching, writing,
lecturing or speaking, whether in a private or official capacity, which
is dependent on information the employee obtained as a result of
Government employment, or related to Treasury Department business.
Teaching, writing, lecturing or speaking not dependent on information
obtained as a result of Government employment, or related to Treasury
Department business, or governed by 0.735-39 and bureau regulations on
outside employment.
(b) The following procedures control these activities dependent on
Government information or related to Treasury Department business.
(1) Use or release of nonpublic information. An employee may not use
or release in a teaching, writing, lecturing, or speechmaking activity
(whether as an official duty or in a private capacity) information
gained as a result of Government employment which has not been made
available to the general public, or will not be made available on
request, unless the appropriate approving official gives written
authorization for such use or release based upon a determination that
such use or release is in the public interest.
(2) Activities undertaken as an official duty. An employee may
engage in teaching, writing, lecturing, or speechmaking as an official
duty. If consistent with the proper expenditure of public funds, such
activities may be permitted as official duties. Approval of the
activity by the employee's supervisor and the content of the teaching,
writing, lecturing or speechmaking engagement by the appropriate
approving official is required. If undertaken as an official duty, all
expenses are to be borne by the Treasury Department and the employee may
receive no other compensation or reimbursement. However, the employee
may, under 5 U.S.C. 4111 and 5 CFR part 410, accept reimbursement for
actual travel and reasonable lodging and subsistence expenses from
organizations determined by the Secretary to be tax exempt as described
in 26 U.S.C. 501(c)(3) or from state, county or municipal governments,
if no U.S. Government payment or reimbursement is made for the expense,
and the acceptance of the payment is consistent with the Department's
policy of eliminating any conflict of interest or appearance of a
conflict of interest with his or her official duties and
responsibilities. While an employee may incur additional expenses, no
reimbursement of such excess is permitted except by a person who:
(i) Is a relative or close personal friend, and
(ii) Makes such payment solely from personal funds.
Any payment or reimbursement shall be subject to the rules of this
part pertaining to gifts and gratuities. Subject to these same
limitations and approval requirements, reimbursement for reasonable
travel expenses of a spouse or traveling companion who accompanies the
employee may be accepted.
(3) Activities undertaken in a private capacity. (i) An employee may
teach, write, lecture, or speak on matters related to Treasury
Department business or which will draw from information gained while a
Government employee (subject to paragraph (c)(2) of this section if
nonpublic information is involved) in a private capacity subject to the
following limitations:
(A) An advance copy or outline (such as a course outline) of any
speech, writing, etc., must be given to the appropriate approving
official who may disapprove the presentation;
(B) The employee may not use his or her official title without
specific written approval by the appropriate approving official. An
example of title use where approval is normally appropriate is where the
employee's Government position is referred to in biographical
information provided in conjunction with the outside activity; and
(C) The employee may not utilize Government time or facilities to
prepare the presentation or submission. Acceptance of honoraria is
discouraged.
(ii) If an honorarium or other compensation is to be received,
specific written approval is required. (Presidential appointees shall
obtain personal written approval of the Secretary).
(iii) If an honorarium or other compensation is not to be received,
further approval is not needed, unless required by bureau regulations.
(iv) Employees may accept payment for travel, lodging, and
subsistence expenses actually incurred from the person or group
sponsoring an activity determined not to be an official duty, if the
payment is reasonable in amount and otherwise consistent with the
Department's policy to eliminate any conflict of interest or appearance
of a conflict of interest with the official duties and responsibilities
of the employee. Presidential appointees shall obtain the personal
written approval of the Deputy Secretary or Secretary before accepting
any such payment. An employee may incur excess expenses not
reimbursable under this subsection. Payment or reimbursement of such
expenses is permitted by a person who:
(A) Is a relative or close personal friend,
(B) Makes such payment solely from personal funds, provided
(C) That such payment is in accordance with the rules of this part
pertaining to gifts and gratuities.
Payment of these excess expenses by anyone other than a relative or
close personal friend requires approval as compensation under paragraph
(c)(4)(ii) of this section.
(4) Reporting requirements. All employees receiving compensation or
reimbursement for expenses for teaching, writing, lecturing, or
speechmaking devoted to the responsibilities, programs or activities of
the Department, or drawing upon official data or ideas which have not
been made public, shall immediately submit a written report to the
appropriate approving official stating the amounts paid and by whom,
unless this information was previously provided to that official. In
addition, the employee may be required by the appropriate approving
official to furnish other relevant information concerning these
payments.
(5) Other restrictions. (i) Under 5 CFR 735.203(c), the Secretary of
the Treasury may not receive compensation or anything of monetary value
for any consultation, lecture, discussion, writing, or appearance, the
subject matter of which is devoted substantially to the
responsibilities, programs, or operations of the Treasury Department, or
which draws substantially on official data or ideas which have not been
made public.
(ii) Under 2 U.S.C. 441i, employees are prohibited from receiving
honoraria of more than $2,000 for any appearance, speech, or article;
(iii) Presidential appointees should be aware that the earned income
limitation described in 0.735-39(c) applies to honoraria.
(c) For purposes of this section the ''appropriate approving
official'' shall be, in the case of employees within a bureau, the
bureau head or deputy; in the case of employees within an office, the
office head or deputy; and in the case of a bureau or office head, the
official to whom the bureau or office head reports pursuant to Treasury
Department Order No. 101-5. (This authority may be delegated in
writing.)
(d) Treasury employees are prohibited from official attendance at
segregated meetings. They may not participate in conferences or speak
before audiences where any racial group has been segregated or excluded
from the meeting, from any of the facilities or the conferences, or from
membership in the group.
31 CFR 0.735-41 Gambling, betting, and lotteries.
(a) Except as provided for in paragraph (c) of this section an
employee shall not participate while on Government-owned or leased
property or while on duty for the Government, in any form of illegal
gambling, betting, lotteries or the sending of chain letters, even if
such activities are in support of a worthy cause.
(b) Possession on Government-owned or leased premises of any numbers
slip or ticket, record, notation, receipt or other writing of a type
ordinarily used in any illegal form of gambling, such as a tip sheet or
dream book, unless explained to the satisfaction of the head of the
bureau or his delegate, shall be prima facia evidence that the employee
is participating in an illegal form of gambling on such premises.
(c) This section does not preclude: (1) Activities necessitated by
an employee's law enforcement duties; or (2) purchase of lottery
tickets sold on Government-owned or leased property by blind vendors, as
provided for in the Randolph Sheppard Act (20 U.S.C. 107a(a)(5)) except
in those states or localities where such gambling is prohibited by
statute, ordinance or other applicable laws.
31 CFR 0.735-42 Use of intoxicants; controlled substances.
(a) Employees must refrain from using intoxicants or controlled
substances habitually, to excess or in any way which adversely affects
their work performance. In addition, employees are forbidden from
engaging in the illegal sale, use or possession of controlled substances
while on Department premises or on official duty.
(b) Employees in violation of paragraph (a) of this section may be
subject to disciplinary action up to and including dismissal.
(c) In addition, each employee should be aware that any use of
intoxicants or use, sale or possession of controlled substances found to
be prejudicial to the Government may subject that employee to
disciplinary action. See 0.735-57.
31 CFR 0.735-43 Indebtedness; tax obligations.
(a) Employees shall not without good reason fail to maintain good
credit and a reputation for prompt settlement of their just financial
obligations in a proper and timely manner. They are expected to manage
their private financial affairs in a manner which will not cause
embarrassment to the Treasury Department. This particularly includes
just financial obligations to Federal, State, and local governments for
taxes as well as private concerns and individuals. A ''just financial
obligation,'' as used in this section, means one acknowledged by the
employee; reduced to judgment by a court; or, in the case of taxes, as
provided by paragraph (b) of this section. ''In a proper and timely
manner,'' as used in this section, means in a manner which the
Department determines does not, under the circumstances, reflect
adversely on the Department as his or her employer. In the event of
disputes between an employee and an alleged creditor, this section does
not require the Department to determine the validity or amount of the
disputed debt.
(b) In accordance with the requirement in paragraph (a) of this
section that employees pay their just financial obligations in a proper
and timely manner, employees must timely pay any valid tax due to a
Federal, State, or local government agency. A ''valid tax due'' as used
in this paragraph includes:
(1) A balance due on an original return as filed with a government
agency;
(2) An uncontested tax assessment of a government agency;
(3) A tax otherwise due a government agency which is acknowledged by
the employee; or
(4) A final administrative determination confirmed by notice of a tax
lien issued by a government agency.
(c) In addition, it is expected that employees will file timely and
properly all tax returns in keeping with the requirements of law,
regulation or ordinance, whether or not a tax is due.
31 CFR 0.735-44 Care of documents.
The care of Government documents is a Federal requirement which is
regulated by legislation. All records and documents in the custody of
employees are in their custody for official purposes only. It is
unlawful to remove, conceal, alter, mutilate, obliterate or destroy
records or documents, or to remove or attempt to remove them from
official custody with the intent of performing any of the above actions
(18 U.S.C. 2071). Employees must not remove records and documents from
official files without approval from proper authority. Working papers,
copies of reports and other official records and documents shall be
promptly sent to file when no longer needed for official purposes.
Disposal or destruction of records and documents is to be made in
accordance with established requirements. There are specific
instructions relating to the safeguarding of classified or other
sensitive information which are furnished to employees authorized to
have access to such information. See further the regulations in part 1
of this title which implement 5 U.S.C. 301, 552 and 552a governing the
care and the disclosure of records in the Department of the Treasury;
0.735-61 of this part; and see the relevant statutes and regulations,
if any, issued by a bureau or office to which the record belongs.
31 CFR 0.735-45 Lending or borrowing money.
Employees shall not, either directly or indirectly, lend to or borrow
from other employees substantial sums of money. In negotiating loans
from authorized sources, such as credit unions, welfare associations,
commercial or private banking institutions, etc., if the transaction
involves the signature of one or more endorsers or comakers, the
borrower must not in any instance solicit, or permit to be affixed to
any instrument as endorser or comaker, the signature of any Treasury
employee who exercises supervision over that borrower, or over whom that
borrower exercises supervision.
31 CFR 0.735-46 Use of Government cars.
Employees are prohibited from using Government cars for other than
official purposes. Use of such cars for transportation of employees
between their domiciles and places of employment can only be justified
where affirmatively authorized by statute, as in 31 U.S.C. 1344.
Employees who violate this section shall be suspended from duty without
compensation for not less than one month and may be suspended for a
longer period or removed from office if circumstances warrant.
31 CFR 0.735-47 Disclosure of information to the public.
Employees may not disclose official information without either
appropriate general or specific authority under Department or bureau
regulations. However, employees who are so authorized should make every
effort to comply promptly and courteously with requests by the public
for information, when permitted to do so by law. See further 31 CFR
1.9, 1.10, and 1.28(b).
31 CFR 0.735-48 Giving testimony.
(a) When directed to do so by competent Treasury authority, employees
must testify and respond to questions truthfully, under oath when
required, concerning matters of official interest.
(b) The information provided by an employee pursuant to paragraph (a)
of this section shall be furnished to authorized persons in the
Department of the Treasury who have a need for the information in the
performance of their duties.
(c) Failure to testify, respond to questions, or give truthful
answers, under oath when required, pursuant to paragraph (a) of this
section, may subject employees to dismissal from Federal employment or
other disciplinary or adverse action. Furnishing false information may
also result in criminal prosecution.
(d) The authority for soliciting information pursuant to paragraph
(a) of this section is granted in 5 U.S.C. 301 (Authorization of Agency
Heads to Prescribe Regulations for their Departments); Executive Orders
10450 (Security Requirements For Government Employees) and 11222
(Prescribing Standards of Ethical Conduct For Government Officers and
Employees); and 26 U.S.C. 7801 (Authority of the Secretary of the
Treasury).
31 CFR 0.735-49 Personal communications.
Employees may not conduct personal business while on official duty.
Personal use of telephones is restricted to essential need. Employees
who receive personal mail at their office will advise addressers to stop
sending such mail to the Department address.
31 CFR 0.735-50 Use of Federal property.
Employees may not directly or indirectly use or allow the use of
Federal property of any kind for other than officially approved
activities. Employees also have a positive responsibility to protect
and conserve all Federal property including equipment and supplies
entrusted or issued to them.
31 CFR 0.735-51 Conduct while on official duty or on Government
property.
Employees must adhere to the regulations governing conduct in and on
the Treasury Building, and Treasury Annex Building and grounds (part 407
of this title); the Bureau of Engraving and Printing, and Bureau of
Engraving and Printing Annex Building and grounds (part 605 of this
title); the Bureau of the Mint buildings and grounds located in Denver,
Fort Knox, New York, Philadelphia, San Francisco, and West Point (part
91 of this title); the grounds of the Federal Law Enforcement Training
Center (part 700 of this title); and Treasury-occupied General Services
Administration buildings and grounds (41 CFR Subpart 101-19.3). In
addition, each employee must refrain from acting in a manner unbecoming
a Treasury employee, while on official duty or in Government buildings.
31 CFR 0.735-52 Influencing legislation or petitioning Congress.
Employees are prohibited from using Government time, money or
property (as, for example, through sending telegrams or letters) to
influence a Member of Congress to favor or oppose any legislation. This
prohibition does not apply to the official handling through proper
channels of matters relating to legislation affecting the Department of
the Treasury (18 U.S.C. 1913). Employees have the right to petition
Members of Congress either individually or collectively or to furnish
information to any committee or member of either House of Congress (5
U.S.C. 7211) when not using Government time, money or property.
31 CFR 0.735-53 Soliciting, selling, and canvassing.
Except when authorized by the head of the bureau, office or division
concerned, and except as provided by 0.735-33, employees are prohibited
from soliciting, from making collections, from canvassing for the sale
of any article or from distributing literature or advertising matter in
any space occupied by Treasury.
31 CFR 0.735-54 Office of Personnel Management examination processes.
Appointment and future advancement in the Federal career service are
based on the important principle of individual merit and qualifications.
The selection and merit competitive processes are protected by the
Office of Personnel Management statutory provisions, 5 U.S.C. Chapter 33
and the Office of Personnel Management regulations. Employees shall not
participate either directly or indirectly in any of the following
actions:
(a) Intentionally make a false statement or practice any deception or
fraud in examination or appointment;
(b) Induce persons to withdraw from competition for competitive
service positions;
(c) Engage in any improper activity with respect to the taking of
Office of Personnel Management examinations and examination ratings; or
(d) Obstruct the right of any person to take examinations according
to the Office of Personnel Management rules and regulations.
31 CFR 0.735-55 Falsification of official records.
(a) Employees shall avoid making false, misleading or ambiguous
statements, deliberately or willfully, whether oral or written, in
connection with any matter of official interest. Some of these matters
of official interest are: Transactions with the public, other Federal
agencies or fellow employees; application forms and other forms which
serve as a basis for appointment, reassignment, promotion or other
personnel action; vouchers; leave records; work reports of any nature
or accounts of any kind; affidavits; entry or record of any matter
relating to or connected with the employee's duties; and report of any
moneys or securities received, held or paid to, for or on behalf of the
United States.
(b) Furnishing false information may subject employees to dismissal
from Federal employment, or other disciplinary or adverse action; and
may also result in criminal prosecution (18 U.S.C. 1001).
31 CFR 0.735-56 Miscellaneous statutory provisions.
Bureau heads should advise employees of any laws which relate
specifically to employees in their bureaus. The attention of every
employee is directed to the statutes relating to conduct listed below:
(a) Pub. L. 96-303, July 3, 1980, 94 Stat. 855, 856, the ''Code of
Ethics for Government Service'' (5 U.S.C. 7301 note).
(b) The prohibition placed on Department of the Treasury employees
against carrying on any trade in any public funds or debts or obtaining
any personal gain from transacting the Department's business (31 U.S.C.
329).
(c) Chapter 11 of Title 18, U.S.C., relating to bribery, graft, and
conflicts of interest, as appropriate to the employees concerned.
(d) The prohibition against the misuse of official mail for private
purposes (18 U.S.C. 1719).
(e) The prohibition against counterfeiting and forging transportation
requests (18 U.S.C. 508).
(f) The prohibition against --
(1) Embezzlement of Government money or property (18 U.S.C. 641);
(2) Failing to account for public money (18 U.S.C. 643); and
(3) Embezzlement of the money or property of another person in the
possession of an employee by reason of his employment (18 U.S.C. 654).
(g) The prohibition against unauthorized use of documents relating to
claims from or by the Government (18 U.S.C. 285).
(h) The prohibition against the employment of a member of a Communist
organization (50 U.S.C. 784).
(i) The prohibitions against --
(1) The disclosure of classified information (18 U.S.C. 798, 50
U.S.C. 783);
(2) The disclosure of confidential information (18 U.S.C. 1905);
(3) The unlawful disclosure of personal information (5 U.S.C. 552a);
and
(4) The disclosure of tax information (26 U.S.C. 6103).
(j) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
(k) The prohibition against Federal employment of any person
convicted of a felony in furtherance of, or while participating in, a
riot or civil disorder (5 U.S.C. 7313).
(l) The tax imposed on certain employees (e.g., Presidential
appointees, employees excepted under Schedule C, employees whose
compensation is equal to or greater than that for GS-16, or executive
assistants or secretaries to any of the foregoing) who knowingly engage
in self-dealing with a private foundation (26 U.S.C. 4941, 4946).
''Self-dealing'' is defined in the statute to include certain
transactions involving an employee's receipt of compensation or other
benefits such as a loan, or reimbursement for travel or other expenses
from, or his or her sale to or purchase of property from, a private
foundation.
(m) The prohibition against a public official appointing or promoting
a relative, or advocating such an appointment or promotion (5 U.S.C.
3110).
(n) The prohibition against interfering with Office of Personnel
Management examinations (18 U.S.C. 1917).
(o) The prohibition against striking against the Government (18
U.S.C. 1918).
31 CFR 0.735-57 General conduct prejudicial to the Government.
An employee shall not engage in criminal, infamous, dishonest, or
notoriously disgraceful conduct, or any other conduct prejudicial to the
Government. See Federal Personnel Manual Chapter 731 for general
guidance on the use of the terms ''criminal, infamous, dishonest, or
notoriously disgraceful conduct.''
31 CFR 0.735-58 Nondiscrimination.
While in the performance of duty, no employee may discriminate
against any other employee, applicant for employment, or person dealing
with the Department on official business because of race, color,
religion, national origin, sex, age, or handicap. Nor may any employee
engage in acts of sexual harassment.
31 CFR 0.735-59 Possession of weapons and explosives.
Employees while on official duty or while in Government buildings
shall not have in their possession firearms, other dangerous or deadly
weapons or explosives, either openly or concealed, except for official
purposes.
31 CFR 0.735-60 Privacy Act.
(a) The head of each office and division shall be responsible for
assuring that employees under their supervision are advised of the
provisions of the Privacy Act, including the criminal penalties and
civil remedies provided therein. Also, that employees are made aware of
their responsibilities to protect the privacy of individuals by:
(1) Avoiding unauthorized disclosure either orally or in writing;
(2) Assuring that information maintained is accurate, relevant,
timely and complete;
(3) Insuring that no system of records, as defined in section 2(a)(5)
of the Act is maintained without public notice.
(b) Employees of the Department of the Treasury shall:
(1) Collect no information of a personal nature from individuals
unless authorized to collect it to achieve a function or carry out a
responsibility of the Department;
(2) Collect from individuals only that information which is necessary
to Department functions or responsibilities;
(3) Collect information, wherever possible, directly from the
individual to whom it relates, unless related to a system exempted under
5 U.S.C. 552a(j);
(4) Inform individuals from whom information is collected of the
authority for collection, the purposes thereof, the use that will be
made of the information, and the effects, both legal and practical, of
not furnishing information;
(5) Neither collect, maintain, use nor disseminate information
concerning an individual's religious or political beliefs or activities
or an individual's membership in associations or organizations, unless
--
(i) The individual has volunteered such information;
(ii) The information is expressly authorized by statute to be
collected, maintained, used or disseminated; or
(iii) The activities involved are pertinent to and within the scope
of an authorized investigation, adjudication or correctional activity;
(6) Advise their supervisors of the existence or contemplated
development of any record system which is capable of retrieving
information about individuals by individual identifier;
(7) Disseminate no information concerning individuals outside the
Department except when authorized by 5 U.S.C. 552a or pursuant to a
routine use published in the Federal Register;
(8) Keep an accounting in accordance with applicable directives, of
all disclosure of personal information outside the Department, whether
made orally or in writing;
(9) Maintain and process information concerning individuals with care
in order to insure that no inadvertent disclosure of the information is
made either within or without the Department; and
(10) Assure that the proper Department authorities are aware of any
information in a system maintained by the Department which is not
authorized to be maintained under the provisions of the Privacy Act of
1974, including information on First Amendment activities, or
information that is inaccurate, irrelevant or so incomplete as to risk
unfairness to the individual concerned.
(c) Employees may be charged with a misdemeanor and a fine up to
$5,000 for the following violations:
(1) Willful disclosure of records which is prohibited by section 3 of
the Privacy Act of 1974 after having knowledge that disclosure of the
specific material is so prohibited,
(2) Willful maintenance of records without meeting the requirements
of publication of a notice concerning such system in the Federal
Register under section 3(e)(4) of the Privacy Act; or
(3) Obtaining records under false pretenses.
31 CFR 0.735-60 Subpart C -- Confidential Statement of Employment and Financial Interest
31 CFR 0.735-90 General.
(a) Section 403 of Executive Order 11222, as amended by Executive
Order 12565, authorizes the Office of Personnel Management to prescribe
regulations requiring certain officers and employees in the Executive
Branch to file confidential statements of employment and financial
interests.
(b) This subpart describes Treasury procedures required to implement
Executive Order 11222, as amended, and the regulations of the Office of
Personnel Management, 5 CFR part 735.
(c) Treasury officers required to file public financial disclosure
reports by virtue of the Ethics in Government Act of 1978 shall do so in
accordance with the procedures set out in subpart D and will not be
required to file confidential statements under this subpart, except as
provided by 0.735-153.
(d) Each bureau will submit a list of positions which meet the
criteria for filing confidential statements to the Designated Agency
Ethics Official by March 1 of each year. The Designated Agency Ethics
Official will designate positions for coverage by April 1 of each year.
Bureaus will advise employees of their filing requirements by May 1 of
each year.
31 CFR 0.735-91 Criteria for designation of employees required to
submit confidential statements.
Except as provided in 0.735-93 confidential statements of employment
and financial interest will be filed by the following employees:
(a) Those classified at GS-13 to GS-15 under 5 U.S.C. 5332, or at a
comparable pay level under another authority, who are in positions, the
incumbents of which are responsible for making a Government decision or
taking a Government action in regard to:
(1) Contracting or procurement;
(2) Administering or monitoring grants or subsidies;
(3) Regulating or auditing private or other non-Federal enterprise;
or
(4) Other activities where the decision or action has an economic
impact on the interests of any non-Federal enterprise.
(b) Those classified at GS-13 to GS-15 under 5 U.S.C. 5332, or at
comparable pay level under another authority, who are in positions
determined to have duties and responsibilities which require the
incumbent to report employment and financial interests in order to avoid
involvement in a possible conflict of interest situation and carry out
the purpose of law, Executive order, 5 CFR part 735, and this part.
(c) Those classified below GS-13 under 5 U.S.C. 5332, or at a
comparable pay level under other authority, who are in positions which
otherwise meet the criteria in paragraphs (a) and (b) of this section,
but only when the inclusion of the position has been specifically
justified in writing to the Office of Personnel Management as an
exception that is essential to protect the integrity of the Government
and avoid employee involvement in a possible conflict of interest
situation.
(d) A list of designated positions requiring filing will be published
annually as a Departmental directive.
31 CFR 0.735-92 Exceptions.
Employees in positions that meet the criteria in paragraph (a) of
0.735-91 may be excluded by the Designated Agency Ethics Official from
the reporting requirement when it is determined that:
(a) The duties of a position are such that the likelihood of the
incumbent's involvement in a conflict of interest situation is remote;
or
(b) The duties of a position are at such a level of responsibility
that the submission of a statement of employment and financial interests
is not necessary because of the degree of supervision and review over
the incumbent or the inconsequential effect on the integrity of the
Government.
31 CFR 0.735-93 Grievances; form and conduct of statements.
(a) An employee who believes that his or her position has been
improperly designated as one requiring submission of a confidential
statement of employment and financial interest may challenge that
determination through the agency's normal grievance procedure.
(b) The confidential statements of employment and financial interests
required under this subpart for use by employees and special Government
employees shall contain, at a minimum, the information required by the
formats prescribed by the Office of Personnel Management in the Federal
Personnel Manual. Such statements shall not include questions that go
beyond, or are in greater detail than those included in Office of
Personnel Management formats without the approval of the Office of
Personnel Management.
31 CFR 0.735-94 Time and place for submission of employees' initial
statements.
Each employee required to submit a statement of employment and
financial interests shall submit that statement to the office or
official designated by the bureau head (reviewing official) not later
than 30 days after the employee's entrance on duty in a covered
position.
31 CFR 0.735-95 Annual statements.
Employees shall submit an annual statement of employment and
financial interests that shows changes in or additions to their original
statement up to and including June 30 of each year, except when the
Office of Personnel Management authorizes a different date. A complete
report is required even if no change has occurred since the last report.
This statement is required to be submitted to the reviewing official no
later than July 31 each year. Notwithstanding the filing of the annual
report required by this section, each employee shall at all times avoid
acquiring a financial interest that could result in a violation of the
conflict of interest provisions of 18 U.S.C. 208, subpart C of 5 CFR
part 735, or this part.
31 CFR 0.735-96 Interests of employees' relatives.
For purposes of completing the confidential statement of employment
and financial interest, the interests of a spouse, minor child, or other
member of the employee's immediate household are to be considered
interests of the employee. In other words, those blood relations who
are residents of the employee's household are to be treated for purposes
of completing the financial statement as though they were the employee
and, therefore, the report of financial interests should reflect their
employment and financial interests in the same manner that the
employment and financial interests of the employee are shown.
31 CFR 0.735-97 Information not known by employees.
If any information required to be included in a statement of
employment and financial interests, including holdings placed in trust,
is not known to the employee but is known to another person, the
employee shall request that other person to submit the information on
his or her behalf.
31 CFR 0.735-98 Information excluded.
The regulations in this subpart do not require an employee to submit
on a statement of employment and financial interests any information
relating to the employee's exercise of First Amendment rights, or the
employee's connection with, or interest in, a professional society or a
charitable, religious, social, fraternal, recreational, public service,
civic or political organization or a similar organization not conducted
as a business enterprise. For the purposes of the regulations in this
part, educational and other institutions doing research and development
or related work involving grants of money from or contracts with the
Government are deemed ''business enterprises'' and are required to be
included in an employee's statement of employment and financial
interests.
31 CFR 0.735-99 Review of statements.
(a) Each bureau will make provision for a review of the statements
submitted by its employees. This review may be made either by the
bureau head or his or her designee. The system of review shall be
designed to disclose conflicts of interest or apparent conflicts of
interest on the part of employees. If information from the statements
submitted or from other sources indicates a conflict of interest, the
employee concerned shall be given an opportunity to explain the conflict
or apparent conflict. If the conflict or apparent conflict is not
resolved at the bureau or a lower organizational level, the matter will
be referred to the Designated Agency Ethics Official.
(1) The assistance of the Designated Agency Ethics Official may be
sought at any time.
(2) Each bureau head will submit a statistical report to the
Designated Agency Ethics Official weekly beginning August 15 until the
review process is complete. The report shall contain the number of
statements required, the number received and the results of the reviews
(such as the number approved and those awaiting final resolution).
(b) Notwithstanding paragraph (a) of this section, attorneys in the
Legal Division shall submit their statements to their immediate
supervisor for review, who will forward the statements to the Deputy
General Counsel.
(c) In the case of officers who file public financial disclosure
reports and who are also required by their bureaus to file supplemental
information on a confidential basis in accordance with 0.735-153, the
supplemental information shall be filed with the head of the bureau, or
his or her designee; and in the case of a bureau head filing such
supplemental information, he or she shall submit it to the official in
the Office of the Secretary to whom he or she reports under Treasury
Department Order No. 101-5. Reviewing officials shall inform employees
required to file supplementary statements in writing that such
statements are due on or about June 15 each year. The statements will
be reviewed by reviewing officials by August 31 and resolution shall be
completed no later than September 30. Approval of each supplementary
statement shall be shown affirmatively by initialing an ''O.K.'' or
other symbol of approval and the date of approval. The official shall
submit a copy of each statement to the Designated Agency Ethics Official
no later than September 15.
31 CFR 0.735-100 Confidentiality of employees' statements.
(a) Statements of employment and financial interests shall be held in
confidence. To ensure this confidentiality, bureaus and offices shall
designate which employees are authorized to review and retain the
statements. Employees so designated are responsible for maintaining the
statements in confidence and shall not allow access to, or allow
information to be disclosed from, a statement except to carry out the
purpose of this part.
(b) Criminal penalties may be imposed on an employee who willfully
and knowingly discloses to an unauthorized person information protected
under the Privacy Act.
31 CFR 0.735-101 Effect of employees' statements on other requirements.
The submission of a statement or supplementary information by an
employee does not permit the employee or any other person to participate
in a matter in which the employee's or the other person's participation
is prohibited by law, order, or regulation.
31 CFR 0.735-101 Subpart D -- Executive Personnel Financial Disclosure Requirements
31 CFR 0.735-150 General.
Executive personnel are required to file public financial disclosure
statements upon appointment, termination, and annually in accord with
the regulations of the Office of Government Ethics, 5 CFR part 734. For
purposes of this provision, executive personnel are all those, at the
Executive Level; in the Senior Executive Service; classified at GS-16
or above; paid at the minimum rate of basic pay fixed for GS-16 if paid
under other than the General Schedule; or exempted from the competitive
service by reason of occupying a position of a confidential or
policymaking character (Schedule C), unless exempted from reporting by
the Office of Government Ethics. For more information regarding this
exemption as well as exemptions for special Government employees, and
for those serving in a covered position for less than sixty-one days in
a calendar year, see 0.735-155.
31 CFR 0.735-151 Procedure.
All executive personnel will file public financial statements on
Standard Form 278 (or such other form as is prescribed by the Office of
Government Ethics) pursuant to 5 CFR part 734 and instructions which
will be provided to each covered employee.
31 CFR 0.735-152 Penalties.
Penalties for failure to file, or for falsification of a financial
disclosure form are provided by the Ethics in Government Act of 1978.
These penalties are a civil penalty of up to $5,000 and administrative
remedies which may include adverse action under 5 CFR part 752.
31 CFR 0.735-153 Supplemental information.
Executive personnel required to file public financial disclosure
reports are generally exempt from the requirement to submit Confidential
Statements of Employment and Financial Interests. Nevertheless, such
executive personnel may be required to submit supplemental information
on a confidential basis if it is determined that such information is
needed by Treasury or the executive's bureau for enforcement of specific
statutes or regulations not having Governmentwide application. Upon
receipt of sufficient justification by a bureau, the Designated Agency
Ethics Official will approve requests for the collection of supplemental
information and seek the approval of the Office of Personnel Management,
if necessary.
31 CFR 0.735-154 Exemptions from filing.
(a) Schedule C employees classified below GS-16 (or paid at a rate
lower than GS-16 step 1 if not classified in the General Schedule) may
be exempted from filing if they have no role in advising or making
policy determinations with respect to agency programs or policies (such
as those serving as chauffeurs, private secretaries, stenographers, and
the like) pursuant to 5 CFR 734-203. The Director of Personnel will
provide a list to the Designated Agency Ethics Official of those who are
believed to meet the requirements for exclusion by April 15 of each
year. The list will include a description of each position and the name
of the incumbent. After review, the list will be provided to the Office
of Government Ethics by May 15 of each year. The Director of Personnel
will notify those on this final list of their exemption. In the event
of subsequent disapproval of any exemption by the Office of Government
Ethics the Designated Agency Ethics Official will notify the Director of
Personnel so that the Director may require filing by that individual.
(b) Creation of new Schedule C positions during the year requires an
immediate determination of exemption. The Director of Personnel shall
make the report required in paragraph (a) of this section (if exemption
is believed appropriate) not later than ten days after the individual's
entrance on duty. The procedures in paragraph (a) of this section will
be followed for these special reports.
(c) An individual may be exempted from filing if the Designated
Agency Ethics Official determines that the employee will serve sixty
days or less in a covered position. The Director of Personnel or bureau
heads will promptly request such exemptions if appropriate. A report is
required 15 days after the sixty-first day of service of an exempted
employee (5 CFR 734.204).
(d) Special Government employees who serve more than sixty days may
be exempted from public disclosure by the Director of the Office of
Government Ethics. Copies of exemption requests shall be sent to the
Designated Agency Ethics Official. The waiver request must be filed
with the Office of Government Ethics within:
(1) Ten days after the individual knows that he or she will serve
more than sixty days in any calendar year; or
(2) The expiration of the sixty days. Rules governing this waiver
are at 5 CFR 734.205.
31 CFR 0.735-155 Ethics agreements.
An ethics agreement is a written commitment by an employee to take
certain actions, such as recusal, divestiture and the like to avoid an
actual or potential conflict of interest. Nominees to positions
requiring Senate confirmation are the most likely to execute such
agreements as part of the appointment and confirmation process. There
are special rules concerning ethics agreements at 5 CFR 734.803 et seq.
These rules cover notification of the creation of such an agreement,
notification of compliance with the terms of the agreement, and
provisions for filing and retention of agreements.
31 CFR 0.735-155 Subpart E -- Special Government Employees
31 CFR 0.735-155 Conflict of Interest Statutes
31 CFR 0.735-210 Applicability of 18 U.S.C. 203 and 205.
(a) The prohibitions in 18 U.S.C. 203 and 205 applicable to special
Government employees are less stringent than those which affect regular
employees. These two sections in general operate to preclude a regular
Government employee, except in the discharge of his or her official
duties, from representing another person before a department, agency or
court, whether with or without compensation, in a matter in which the
United States is a party or has a direct and substantial interest.
However, the two sections impose only the following major restrictions
upon a special Government employee:
(1) He or she may not, except in the discharge of his or her official
duties represent anyone else (or receive compensation from another's
representation) before a court or Government agency in a matter
involving a specific party or parties in which the United States is a
party or has direct and substantial interest and in which he or she has
at any time participated in the course of his or her Government
employment.
(2) He or she may not, except in the discharge of his or her official
duties, represent anyone else (or receive compensation from another's
representation) in a matter involving a specific party or parties in
which the United States is a party or has a direct and substantial
interest and which is pending before the agency he or she serves.
However, this restraint is not applicable if he or she has served the
agency no more than 60 days during the past 365. He or she is bound by
the restraint, if applicable, regardless of whether the matter is one in
which he or she has ever participated personally and substantially.
(b) These restrictions prohibit both paid and unpaid representation
and apply to a special Government employee on the days when he or she
does not serve the Government as well as on the days when he or she
does.
(c) An employee who undertakes service with the Department of the
Treasury and another department or agency shall inform each of his or
her arrangements with the other.
(d) There may be situations where a special Government employee has a
responsible position with his or her regular employer which requires him
or her to particiate personally in contract negotiations with the
Department. In this situation, the special Government employee should
participate in the negotiations for his or her employer only with the
knowledge of a responsible Treasury official; i.e., the full-time
official to whom the special Government employee reports. Prior to
permitting such participation, the responsible Treasury official shall
obtain approval in writing of the Deputy General Counsel.
(e) Section 205 of Title 18, U.S.C., contains certain exemptions.
The first of these deals with a similar situation which may arise after
a Government grant or contract has been negotiated. This provision in
certain cases permits both the Government and the private employer of a
special Government employee to benefit from his or her performance of
work under a grant or contract for which he or she would otherwise be
disqualified because he or she had participated in the matter for the
Government or it is pending in an agency he or she has served more than
60 days in the past year. More particularly, the provision gives the
head of a department or agency the power, notwithstanding any
prohibition in either section 203 or 205 or Title 18 U.S.C. to allow a
special Government employee to represent before such department or
agency either his or her regular employer or another person or
organization in the performance of work under a grant or contract,
provided the national interest so requires. The action required to
effect the exemption is a certification by the Secretary to be submitted
for publication in the Federal Register. Such certifications will be
fowarded to the Secretary through the Deputy General Counsel, and the
exemption will not take effect until the certification is published.
(f) The other exemption permits a special Government employee to
represent, with or without compensation, a parent, spouse, child, or
another person or an estate he or she serves as a fiduciary, but only if
he or she has the approval of the official responsible for appointments
to his or her position and the matter involved is neither one in which
he or she has participated personally or substantially nor one under his
or her official responsibility. The term ''official responsibility'' is
defined in 18 U.S.C. 202 to mean the direct administrative or operating
authority, whether intermediate or final and either exercisable alone or
with others, and either personally or through subordinates, to approve,
disapprove, or otherwise direct Government action in the Department of
the Treasury.
31 CFR 0.735-211 Applicability of 18 U.S.C. 207.
(a) Section 207 of Title 18, Code applies to individuals who have
left Government service, including former special Government employees.
It prevents a former employee or special Government employee from
representing another person in connection with certain matters (or
making oral or written communications, with the intent to influence, to
the Government or a court) in which he or she participated personally
and substantially on behalf of the Government. The matters are those
involving a specific party or parties in which the United States is also
a party or has a direct and sustantial interest. In addition, section
207 of Title 18, U.S.C. prevents a former employee for a period of two
years after his or her employment has ceased, from representing another
person (or making oral or written communications with the intent to
influence) in such matters before a court, department or agency if the
matters were within the area of his or her official responsibility at
any time during the last year of his or her Government service. It
should be noted that a consultant or adviser usually does not have
''official responsibility.''
(b) A special Government employee who serves sixty-one days or more
in a given calendar year in a position designated as a Senior Employee
position in 5 CFR part 737 may not represent anyone other than the
United States before the employee's former agency in any particular
matter (whether a specific party or parties are involved or not) and may
not make oral or written communications, with intent to influence, to
that agency for a period of one year after his or her employment has
ceased. For purposes of this restriction, certain components of the
Department of the Treasury have been designated as separate agencies
from the balance of the Department in 5 CFR 737.31.
31 CFR 0.735-212 Applicability of 18 U.S.C. 208.
(a) Section 208 of Title 18, U.S.C., bears on the activities of
Government personnel, including special Government employees in the
course of their official duties. In general, it prevents an employee or
special Government employee from participating personally and
substantially as a Government officer or employee in a particular matter
in which, to his or her knowledge, the employee, the employee's spouse,
minor child, partner, or a profit or nonprofit organization with which
the employee has or is serving as officer, director, trustee, partner or
employee, or any person or organization with whom the employee is
negotiating or has any arrangement concerning prospective employment,
has a financial interest. However, the section permits such an
employee's agency to grant him or her an exemption if the interest is
not so substantial as to affect the integrity of his or her service.
Insignificant interests may also be waived by a general rule or
regulation.
(b) For the purposes of 18 U.S.C. 208, the phrase ''participates
personally and substantially in a particular matter'' applies to
participation through decision, approval, disapproval, recommendation,
the rendering of advice, investigation, or otherwise, in a judicial or
other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, charge, accusation, arrest,
or other particular matter. Accordingly, a special Government employee
should in general be disqualified from participating as such in a matter
of any type the outcome of which will have a direct and predictable
effect upon the financial interests covered by the section. However,
the power of exemption may be exercised in this situation if the special
Government employee renders advice of a general nature from which no
preference or advantage over others might be gained by any particular
person or organization. The power of exemption may, of course, be
exercised also where the financial interest involved is minimal in
value.
31 CFR 0.735-212 Rules of Conduct
31 CFR 0.735-215 Applicability of subpart B of this part.
The rules of conduct ( 0.735-20 through 0.735-61) contained in
subpart B of this part shall also apply to special Government employees
insofar as their employment with the Treasury Department is concerned.
However, the prohibition in 0.735-31, concerning active participation
in political management or campaigns (5 U.S.C. 734), only applies to
special Government employees on days that they serve the Department. In
addition, where there are specific statutes applicable to employees in
certain Treasury bureaus, the bureaus concerned should inform their
special Government employees of the applicability of those statutes to
them.
31 CFR 0.735-215 Consultants and Advisers
31 CFR 0.735-220 Advice on rules of conduct and conflicts of interest
statutes.
If a special Government employee who is a consultant, expert, or an
adviser has doubt as to the ethics of any conduct falling within the
Standards of Conduct and conflicts of interest statutes, he or she
should confer with the Ethics Counselor or a Deputy Counselor.
31 CFR 0.735-221 Industry, labor, agricultural and other
representatives.
There are situations where an adviser or member of an advisory
committee may be providing advice as a representative of an outside
group and not as an employee or special Government employee of the
Department. Such questions normally arise with respect to members of
advisory committees within the departments. Some advisory committees
are clearly composed of representatives of industries. The Attorney
General has ruled that the Advisory Group to the Commissioner of
Internal Revenue is composed of persons serving in a representative
capacity. Bureaus or offices using advisory committees may seek the
advice of the Ethics Counselor or a Deputy Counselor to determine
whether members of any given advisory committee are serving in a
representative capacity and not as employees of the Department. Persons
serving in a representative capacity are not subject to the conflict of
interest laws, and are not required to file statements of employment and
financial interest, but they should nonetheless be guided by the
considerations in this part covering such points as use of inside
information, abuse of office, and gifts.
31 CFR 0.735-221 Procedures To Be Followed in the Department
31 CFR 0.735-230 Information and assistance to special Government
employees and their supervisors.
Each special Government employee appointed in the Department and each
supervisor of a special Government employee will be given a copy of this
part and will be required to familiarize himself or herself with the
conflict of interest laws and the provisions of the instructions
applicable to him or her. If a special Government employee or
prospective special Government employee or a supervisor desires
assistance in interpreting the instructions or laws, he or she will be
referred to the Ethics Counselor or a Deputy Counselor.
31 CFR 0.735-231 Disclosure of financial interests.
(a) In order to carry out the responsibility to avoid the use of the
services of special Government employees in situations in which
violations of the conflict of interest laws or of the regulations in
this part may occur, each special Government employee will, at the time
of initial employment and each reappointment thereto, be required to
supply a statement of --
(1) All other employment and
(2) The financial interests of the special Government employee which
the head of the bureau or office in which he or she serves determines
are relevant in light of the duties he or she is to perform, including,
but not limited to, the name of companies in which he or she has a
financial interest, and the nature of such financial interest.
Each statement of financial interests will be forwarded to the Deputy
General Counsel through the Advisory Committee on Ethical Standards
along with a statement of the duties which the proposed special
Government employee will be assigned.
(b) The supervisor of the special Government employee should review
the statement of employment and financial interests in relationship to
the duties to be performed and initially determine that no conflict of
interest exists prior to submission of the material to the Advisory
Committee. Such statements must be kept current during the period the
special Government employee is on the Government rolls. Changes in or
additions to the information contained in an employee's statement of
employment and financial interest must be promptly reported by the
filing of an amended statement. Such changes would include the
undertaking of new employment or the acquisition of new financial
interest.
(c) The Department official or bureau head appointing a member of an
advisory board or committee to serve in an individual rather than a
representative capacity may:
(1) Waive disclosure of financial information when he or she
considers that such information is not relevant to the advisory duties
of the board or committee, or
(2) Waive disclosure of financial information except that which is
relevant to the advisory duties of such board or committee.
Such waiver or partial waiver is for the convenience of the
Department and shall in no instance be considered a substitute for the
exemption procedures described in 0.735-212, ''Applicability of 18
U.S.C. 208'' in this subpart. If the official or bureau head elects to
waive or partially waive disclosure of information as described in this
paragraph rather than obtain complete disclosure of financial
information, he or she must report in writing to the Designated Agency
Ethics Official the names of the persons to whom waivers were granted
and the specific reasons for the waivers. In cases of doubt as to which
of these actions is appropriate, he or she should obtain advice from the
Designated Agency Ethics Official.
31 CFR 0.735-232 Service with other Federal agencies.
If a special Government employee is serving in other Federal
agencies, he or she will be required to inform the Department and each
of the agencies of his or her arrangements with the others so that
appropriate administrative measures may be effected. Information of
service with other Federal agencies will be submitted along with the
statement of employment and financial interests and must be kept current
while employed with the Department.
31 CFR 0.735-233 Resolution of cases involving a conflict or apparent
conflict of interest.
When a situation arises which indicates a conflict of interest or
apparent conflict of interest and the matter is not resolved,
information about the situation will be reported to the Ethics
Counselor, who in turn, will report to the Secretary. In any such
situation, the special Government employee shall be provided an
opportunity to explain the conflict or appearance of conflict.
31 CFR 0.735-234 Legal interpretation.
Whenever the Ethics Counselor believes that a substantial legal
question is raised by the employment of a particular special Government
employee, the Ethics Counselor will advise the Office of Government
Ethics in order to insure a consistent and authoritative interpretation
of the law.
31 CFR 0.735-235 Safeguarding of information.
(a) Statements of employment and financial interests, and
supplementary statements shall be held in confidence. To ensure this
confidentiality, bureaus and offices shall designate which employees are
authorized to review and retain the statements. Employees so designated
are responsible for maintaining the statements in confidence and shall
not allow access to, or allow information to be disclosed from, a
statement except to carry out the purpose of this part.
(b) Criminal penalties may be imposed on an employee who willingly
and knowingly discloses to an unauthorized person prohibited information
under the Privacy Act. See 0.735-61.
(c) The unauthorized disclosure of employees' confidential statements
may be the basis for civil action against the Department under the
Privacy Act. See U.S.C. 552a(g)(1)(D).
31 CFR 0.735-235 Subpart F -- Employees Stationed in Foreign Countries
31 CFR 0.735-235 General Provisions
31 CFR 0.735-300 Purpose.
The General Provisions set forth in Subpart A of this part are
applicable to all employees stationed in foreign countries. In
addition, (a) regular employees stationed in foreign countries are
responsible for adhering to the provisions of Subpart B of this part;
(b) special Government employees are responsible for adhering to the
provisions of Subpart E of this part; (c) this subpart sets forth
additional rules and guidelines applicable to employees and special
Government employees stationed in foreign countries.
31 CFR 0.735-301 Policy.
Treasury employees and special Government employees on official duty
in foreign countries are both representatives of the Department of the
Treasury and the United States Government and guests of the country in
which they serve. This subpart is intended simply to emphasize these
points.
31 CFR 0.735-302 General provisions governing conduct in foreign
countries.
Treasury employees and special Government employees should
familiarize themselves with the Standards of Conduct for State
Department personnel overseas and be guided accordingly. The most
important provisions regarding conduct, not otherwise covered in this
subpart, are contained in 0.735-310-0.735-316. Since application of
the standards may vary slightly in different countries due to local
differences, Treasury employees should look to the State Department or
the U.S. Embassy for the country in which service is being performed for
guidance, interpretation and assistance.
31 CFR 0.735-302 Additional Rules of Conduct
31 CFR 0.735-310 Basic rule of conduct.
Treasury employees and special Government employees are obligated to
obey the laws of the country in which they are assigned and to observe
the rules of moral and courteous conduct in their official and personal
lives.
31 CFR 0.735-311 Applicability to American employees.
Each head of a Treasury organization overseas shall ensure that all
employees and special Government employees under his or her jurisdiction
have read and are familiar with the provisions of this part.
31 CFR 0.735-312 Applicability to members of families.
Restrictions placed on Treasury employees and special Government
employees with respect to speeches, interviews and participation in
activities abroad also shall apply to those members of the family of the
employee and special Government employee who normally reside with him or
her and are dependent on him or her. An employee or special Government
employee shall be held to strict accountability for the actions of his
or her family. Members of an employees' or special Government
employee's family shall avoid expressing views which are unfriendly to
or critical of the United States or the host country, its Government,
institutions, or people, either to or in the presence of persons of a
foreign nationality. They shall, in addition, refrain from engaging in,
or associating closely with, groups of people or organizations engaged
in activities which are inimical to or embarrassing to the Government of
the United States.
31 CFR 0.735-313 Expression of thoughts and views.
Employees and special Government employees shall not allude in public
speeches and newspaper interviews to disputes between governments or to
active political issues in the United States or elsewhere, except with
the authorization of the Department.
31 CFR 0.735-314 Political activities.
Treasury employees and special Government employees shall not engage
in any form of political activity in the country to which they are
assigned. (This restriction does not apply to alien spouses who may
continue to vote in their own countries.)
31 CFR 0.735-315 Acceptance of employment by a member of a family.
Members of the family of Treasury employee or special Government
employee overseas shall not transact or be interested in any business or
engage for profit in any professions in the country to which the
employee or special Government employee is assigned without the approval
of the bureau concerned. However, if the bureau so determines, no
approval is required for such employment by the U.S. Government.
31 CFR 0.735-316 Sale of personal automobiles and other personal
property.
The following provisions apply to all American employees and special
Government employees regardless of agency, attached to United States
embassies and constituent posts:
(a) The importation, sale or export of personal property including
automobiles of American employees and special Government employees and
their dependents must be in accordance with the laws, regulations and
conventions of the host country.
(b) Personal property, including motor vehicles, brought to posts
abroad by American employees and special Government employees must be
for their bona fide personal use or that of their dependents, and not
with intent of sale or transfer.
(c) Automobiles purchased for shipment to new posts of assignments
should be unostentatious in appearance and modestly equipped.
(d) The employee or special Government employee will not be permitted
to sell the employee's personal property, including motor vehicles, at
an amount in excess of the price the employee paid for it plus any taxes
and customs duty paid by the employee, or for any valuable consideration
in excess of the total of these amounts. However, an employee need not
sell personal property, including motor vehicles; it may be exported at
the employee's or U.S. Government expense, under pertinent travel or
shipping regulations. The employee must export it if required to do so
by local law, local government regulation, or rules established by the
ambassador.
(e) Full responsibility rests with the ambassador for controlling the
importation and sale of personal property by all American employees or
special Government employees attached to the embassy or constituent
posts. He or she will issue and ensure compliance with local
regulations consistent with policy prescribed herein and with other
applicable regulations.
(f) Since conditions surrounding the importation and sale of personal
property, including motor vehicles, vary widely country by country,
Treasury must rely on the ambassador to issue detailed local regulations
and procedures tailored to meet unique local situations. In issuing
such local regulations and procedures consideration should be given to
the following alternatives among others available to the ambassador.
The ambassador may:
(1) Limit or prohibit importation of certain kinds of personal
property. (For example, he or she may limit the number or frequency of
motor vehicles imported.)
(2) Limit classes of persons to whom sales may be made. (For
example, he or she may arrange for personal property sales to the host
government, or to the U.S. Mission's commissary or employee association
for use or rental by it.)
(3) Limit the conversion of currency realized from the sale of
personal property.
(4) Require the exportation of personal property at Government or the
employee's or special Government employee's expense under applicable
travel or shipping regulations.
31 CFR 0.735-316 Advice and Counseling
31 CFR 0.735-320 Responsibility for guidance and assistance.
Supervisors in charge of Treasury activities overseas are responsible
for providing guidance and assistance to their employees and special
Government employees regarding conduct in such overseas activities. In
the event the supervisor in the overseas location needs assistance and
guidance or interpretation, he or she should first look to the State
Department representative in the overseas country. If that is not
possible or if he or she needs further assistance, he or she should
contact his or her bureau head. Bureaus may refer questions on the
regulations in this part to the Ethics Counselor who will confer with
the State Department where necessary to assure uniformity of
interpretation and application of this Subpart to employees stationed in
foreign countries.
31 CFR 0.735-320 Pt. 1
31 CFR 0.735-320 PART 1 -- DISCLOSURE OF RECORDS
31 CFR 0.735-320 Subpart A -- Freedom of Information Act
Sec.
1.1 General.
1.2 Information made available.
1.3 Publication in the Federal Register.
1.4 Public inspection and copying.
1.5 Specific requests for other records.
1.6 Business information.
1.7 Fees for services.
Appendix A -- Departmental Offices
Appendix B -- Internal Revenue Service
Appendix C -- United States Customs Service
Appendix D -- United States Secret Service
Appendix E -- Bureau of Alcohol, Tobacco and Firearms
Appendix F -- Bureau of Engraving and Printing
Appendix G -- Financial Management Service
Appendix H -- United States Mint
Appendix I -- Bureau of the Public Debt
Appendix J -- Office of the Comptroller of the Currency
Appendix K -- United States Savings Bonds Division
Appendix L -- Federal Law Enforcement Training Center
Appendix M -- Office of the Assistant Secretary for Tax Policy
31 CFR 0.735-320 Subpart B -- Other Disclosure Provisions
1.8 Scope.
1.9 Records not to be otherwise withdrawn or disclosed.
1.10 Oral information.
1.11 Testimony or the production of records in a court or other
proceeding.
1.12 Regulations not applicable to official request.
31 CFR 0.735-320 Subpart C -- Privacy Act
1.20 Purpose and scope of regulations.
1.21 Definitions.
1.22 Requirements relating to systems of records.
1.23 Publication in the Federal Register -- Notices of systems of
records, general exemptions, specific exemptions, review of all systems.
1.24 Disclosure of records to person other than the individual to
whom they pertain.
1.25 Accounting of disclosures.
1.26 Procedures for notification and access to records pertaining to
individuals -- format and fees for request for access.
1.27 Procedures for amendment of records pertaining to individuals --
format, agency review and appeal from initial adverse agency
determination.
1.28 Training, rules of conduct, penalties for non-compliance.
1.29 Records transferred to Federal Records Center or National
Archives of the United States.
1.30 Application to system of records maintained by Government
contractors.
1.31 Sale or rental of mailing lists.
1.32 Use and disclosure of social security numbers.
1.34 Guardianship.
1.35 Information forms.
1.36 Systems exempt in whole or in part from provisions of 5 U.S.C.
552a and this part.
Appendix A -- Departmental Offices
Appendix B -- Internal Revenue Service
Appendix C -- United States Customs Service
Appendix D -- United States Secret Service
Appendix E -- Bureau of Alcohol, Tobacco and Firearms
Appendix F -- Bureau of Engraving and Printing
Appendix G -- Financial Management Service
Appendix H -- United States Mint
Appendix I -- Bureau of the Public Debt
Appendix J -- Office of the Comptroller of the Currency
Appendix K -- U.S. Savings Bonds Division
Appendix L -- Federal Law Enforcement Training Center
Authority: 5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued
under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C.
552a.
Source: 52 FR 26305, July 14, 1987, unless otherwise noted.
31 CFR 0.735-320 Subpart A -- Freedom of Information Act
31 CFR 1.1 General.
(a) General. This subpart contains the regulations of the Department
of the Treasury implementing the Freedom of Information Act (''FOIA''),
5 U.S.C. 552. Information customarily furnished to the public in the
regular course of the performance of official duties may continue to be
furnished to the public without complying with this subpart, provided
that the furnishing of such information would not violate the Privacy
Act of 1974, 5 U.S.C. 552a, and would not be inconsistent with other
subparts of this part. To the extent permitted by other laws, the
Department will also consider making available records which it is
permitted to withhold under the FOIA if it determines that such
disclosures would be in the public interest.
(b) As used in this subpart, the following terms shall have the
following meanings:
(1) Appeal means the appeal by a requester of an adverse
determination of the request, as described in 5 U.S.C.
552(a)(6)(A)(ii).
(2) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C.
552(e).
(3) Component means each separate bureau or office of the Department
of the Treasury.
(4) Request means any request for records made pursuant to 5 U.S.C.
552(a)(3).
(5) Requester means any person who makes a request to a component.
(6) Business information means trade secrets or other commercial or
financial information.
(7) Business submitter means any commercial entity which provides
business information to the Department of the Treasury or its components
and which has a proprietary interest in the information.
(c) Components of the Department of the Treasury shall comply with
the time limits set forth in the FOIA for responding to and processing
requests and appeals, unless there are exceptional circumstances within
the meaning of 5 U.S.C. 552(a)(6)(C). A component shall notify a
requester whenever the component is unable to respond to or process the
request or appeal within the time limits established by the FOIA.
Components shall respond to and process requests and appeals in their
approximate order of receipt, to the extent consistent with sound
administrative practice.
(d) Purpose and scope of regulations. These regulations apply to all
components of the Department of the Treasury. Any reference in this
subpart to the Department or its officials, employees, or records shall
be deemed to refer also to the components or their officials, employees,
or records. In order that interested parties may more readily find
them, the components of the Department are hereby authorized to reprint
these regulations in their entirety (less any appendices not applicable
to the unit in question) in those titles of the Code of Federal
Regulations which normally contain regulations applicable to each
component. In connection with such republication, components may
supplement and implement these regulations with materials applicable
only to the component in question, provided such additional material is
not inconsistent with this part. In the event of any actual or apparent
inconsistency, these Departmental regulations should govern. Persons
interested in the records of a particular component should, therefore,
also consult the Code of Federal Regulations for any rules or
regulations promulgated specifically with respect to that component.
(See Appendices in this subpart for cross references.) The head of each
component is hereby also authorized to substitute the officials
designated and change the addresses specified in the appendix to this
subpart applicable to the component. The components of the Department
of the Treasury for the purposes of this part are:
(1) The Departmental Offices, which include the offices of:
(i) The Secretary of the Treasury, including immediate staff;
(ii) The Deputy Secretary of the Treasury, including immediate staff;
(iii) The Under Secretary of the Treasury for Finance, including
immediate staff;
(iv) The Fiscal Assistant Secretary, including immediate staff;
(v) The Assistant Secretary of the Treasury for Ecnomic Policy and
all other offices reporting to such official, including immediate staff;
(vi) The General Counsel and also the Legal Division, except legal
counsel to the components listed in paragraphs (d)(1)(ix) and (2)
through (12) of this section;
(vii) The Assistant Secretary of the Treasury for International
Affairs and all offices reporting to such official, including immediate
staff;
(viii) The Treasuer of the United States, including immediate staff;
(ix) The Assistant Secretary of the Treasury for Tax policy,
including immediate staff and all offices reporting to such official;
(x) The Assistant Secretary of the Treasury for Management, and all
offices reporting to such official, including immediate staff.
(xi) The Assistant Secretary of the Treasury for Domestic Finance and
all offices reporting to such official, including immediate staff;
(xii) The Assistant Secretary of the Treasury for Legislative
Affairs, including immediate staff;
(xiii) The Assistant Secretary of the Treasury for Public Affairs and
Public Liaison, including immediate staff;
(xiv) The Assistant Secretary of the Treasury for Enforcement and all
offices reporting to such official, including immediate staff;
(xv) The Special Assistant to the Secretary (National Security),
including immediate staff;
(xvi) The Inspector General and all offices reporting to such
official, including immediate office.
(2) The Bureau of Alcohol, Tobacco and Firearms;
(3) The Office of the Comptroller of the Currency;
(4) The United States Customs Service;
(5) The Bureau of Engraving and Printing;
(6) The Federal Law Enforcement Training Center;
(7) The Financial Management Service;
(8) The Internal Revenue Service;
(9) The United States Mint;
(10) The Bureau of the Public Debt;
(11) The United States Savings Bonds Division;
(12) The United States Secret Service.
For purposes of this subpart, the office of legal counsel for the
components listed in paragraphs (d), (2), (3), (4), (5), (7), (8), (9),
(10), and (12) of this section are to be considered a part of their
respective components. Any office, which is now in existence or may
hereafter be established, which is not specifically listed or known to
be a component of any of those listed above, shall be deemed a part of
the Departmental Offices for the purpose of making requests for records
under these regulations.
31 CFR 1.2 Information made available.
(a) General. Section 552 of Title 5 of the United States Code
provides for access to information and records developed or maintained
by Federal agencies. Generally, this section divides agency information
into three major categories and provides methods by which each category
is to be made available to the public. The three major categories, for
which the disclosure requirements of the components of the Department of
the Treasury are set forth in this subpart, are as follows:
(1) Information required to be published in the Federal Register (see
1.3 of this part);
(2) Information required to be made available for public inspection
and copying or, in the alternative, to be published and offered for sale
(see 1.4 of this part); and
(3) Information required to be made available to any member of the
public upon specific request (see 1.5 of this part). The provisions of
section 552 are intended to assure the right of the public to
information.
(b) Subject only to the exemptions set forth in 1.2(c), the public
generally or any member of the public shall be afforded access to
information or records in the possession of any component of the
Department of the Treasury. Such access shall be governed by the
regulations in this Subpart A and any regulations of a component
implementing or supplementing them.
(c) Exemptions -- (1) In general. Under 5 U.S.C. 552(b), the
disclosure requirements of section 552(a) do not apply to certain
matters which are:
(i)(A) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of the national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order (See 31 CFR part 2);
(ii) Related solely to the internal personnel rules and practices of
an agency;
(iii) Specifically exempted from disclosure by statute (other, than 5
U.S.C. 552(b)): Provided, That such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;
(iv) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(v) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(vi) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(vii) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to interfere
with enforcement proceedings (see 1.2(c)(2); (B) would deprive a
person of a right to a fair trial or an impartial adjudication; (C)
could reasonably be expected to constitute an unwarranted invasion of
personal privacy; (D) could reasonably be expected to disclose the
identity of a confidential source including a State, local, or foreign
agency or authority or any private institution which furnished
information on a confidential basis, and, in the case of a record or
information compiled by 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; (E) 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 (F) could reasonably be expected to endanger the life or
physical safety of any individual.
(viii) Contained in or related to examination, operating or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(ix) Geological and geophysical information and data, including maps,
concerning wells.
(2)(i) Whenever a request is made which involves access to records
described in 1.2(c)(1)(vii)(A), and --
(A) The investigation or proceeding involves a possible violation of
criminal law; and
(B) There is a reason to believe that the subject of the
investigation or proceeding is not aware of its pendency, and disclosure
of the existence of the records could reasonably be expected to
interfere with enforcement proceedings,
the agency may, during only such time as that circumstance continues,
treat the records as not subject to the requirements of this section.
(ii) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or personal
identifier, the agency may treat the records as not subject to the
requirements of this section unless the informant's status as an
informant has been officially confirmed.
(iii) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and the
existence of the records is classified information as provided in
paragraph (b)(1) of this section, the Bureau may, as long as the
existence of the records remains classified information, treat the
records as not subject to the requirements of this section.
(3) The exemptions set forth in paragraph (c)(1) of this section
apply to each of the three categories of information set forth in
paragraph (a) of this section.
(4) Segregable portions of records. Portions of some records may be
denied leaving the remaining reasonably segregable portions which must
be released to the requester. These portions are released only when the
meaning is not distorted by deletion of the denied portions and when it
reasonably can be assumed that a skillful and knowledgeable person could
not reconstruct the deleted information. When a record is denied in
whole, the response advising the requester of that determination shall
specifically state that it is not reasonable to segregate portions of
the record for release.
(5) Application of exemptions. Even though an exemption described in
paragraph (c)(1) of this section may be fully applicable to a matter in
a particular case, a component of the Department of the Treasury may, if
not precluded by law, elect under the circumstances of that case not to
apply the exemption. The fact that the exemption is not applied by a
component in that particular case will have no precedential significance
in other cases, but is merely an indication that, in the particular case
involved, the component finds no compelling necessity for applying the
exemption.
31 CFR 1.3 Publication in the Federal Register.
(a) Requirement. Subject to the application of the exemptions
described in 1.2(c) and subject to the limitations provided in
paragraph (b) of this section, each component of the Department of the
Treasury is required, in conformance with 5 U.S.C. 552(a)(1), to
separately state, publish and maintain current in the Federal Register
for the guidance of the public the following information with respect to
that component:
(1) Descriptions of its central and field organization and the
established places at which, the persons from whom, and the methods
whereby, the public may obtain information, make submittals or requests,
or obtain decisions;
(2) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the places
at which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the component; and
(5) Each amendment, revision, or repeal of matters referred to in
paragraphs (a)(1) through (4) of this section.
(b) Limitations -- (1) Incorporation by reference in the Federal
Register. Matter reasonably available to the class of persons affected
thereby, whether in a private or public publication, will be deemed
published in the Federal Register for purposes of paragraph (a) of this
section when it is incorporated by reference therein with the approval
of the Director of the Federal Register. The matter which is
incorporated by reference must be set forth in the private or public
participation substantially in its entirety and not merely summarized or
printed as a synopsis. Matter, the location and scope of which are
familiar to only a few persons having a special working knowledge of the
activities of the Department of the Treasury, may not be incorporated in
the Federal Register by reference. Matter may be incorporated by
reference only pursuant to the provisions of 5 U.S.C. 552(a)(1) and 1
CFR part 20.
(2) Effect of failure to publish. Except to the extent that a person
has actual and timely notice of the terms of any matter referred to in
paragrph (a) of this section which is required to be published in the
Federal Register, such person is not required in any matter to resort
to, or be adversely affected by, such matter if it is not so published
or is not incorporated by reference therein pursuant to paragraph (b)(1)
of this section. Thus, for example, any such matter which imposes an
obligation and which is not so published or incorporated by reference
will not adversely change or affect a person's rights.
31 CFR 1.4 Public inspection and copying.
(a) In general. Subject to the application of the exemptions
described in 1.2(c), each component of the Department of the Treasury
is required in conformance with 5 U.S.C. 552(a)(2), to make available
for public inspection and copying, or, in the alternative, to promptly
publish and offer for sale the following information with respect to the
component:
(1) Final opinions, including concurring and dissenting opinions, and
orders, if such opinions and orders are made in the adjudication of
cases;
(2) Those statements of policy and interpretation which have been
adopted by the component but are not published in the Federal Register;
and
(3) Its administrative staff manuals and instructions to staff that
affect a member of the public.
(b) Indexes. Each component of the Department of the Treasury is
hereby also required in conformance with 5 U.S.C. 552(a)(2), to maintain
and make available for public inspection and copying current indexes
identifying any matter described in paragraphs (a) (1) through (3) of
this section which is issued, adopted, or promulgated after July 4,
1967, and which is required to be made available for public inspection
or published. In addition, each component shall promptly publish,
quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplement unless the head of each component (or
a delegate) determines by order published in the Federal Register that
the publication would be unnecessary and impractical; in which case the
component shall nonetheless provide copies of the index on request at a
cost not to exceed the direct cost of duplication.
(c) Effect of failure to publish or make available. No matter,
described in paragraphs (a) (1) through (3) of this section, which is
required by this paragraph to be made available for public inspection or
published, may be relied upon, used, or cited as precedent by the
component against a party, other than an agency, unless that party has
actual and timely notice of the terms of such matter or unless the
matter has been indexed and either made available for inspection or
published, as provided by this paragraph. This paragraph may be
interpreted to apply only to matters which have precedential
significance. It does not apply to matters which have been made
available pursuant to 1.3.
(d) Deletion of identifying details. To prevent a clearly
unwarranted invasion of personal privacy, a component of the Department
of the Treasury may, in accordance with 5 U.S.C. 552(a)(2), delete
identifying details contained in any matter described in paragraphs (a)
(1) through (3) of this section before making such matter available for
inspection or publishing it. However, in every case where identifying
details are so deleted, the exemption justifying the deletion will be
identified in an attachment to the document from which the identifying
details have been deleted.
(e) Public reading rooms. Each component of the Department of the
Treasury shall make available for inspection and copying, in a reading
room or otherwise, the matters described in paragraphs (a) (1) through
(3) of this section which are required by such paragraph (a) to be made
available for public inspection or published in the current indexes such
matters. Facilities shall be provided whereby a person may inspect the
material and obtain copies of that which is shelved. Fees shall not be
charged for access to materials, but fees are to be charged in
accordance with 1.7 for copies of material provided to the person.
(See the appendices to this subpart for the location of established
reading rooms of components of the Department of the Treasury.)
31 CFR 1.5 Specific requests for other records.
(a) In general. Except for records made available under 1.3 and
1.4, above, but subject to the application of the exemptions described
in 1.2(c) above, each component of the Department of the Treasury shall
promptly make the requested records available to any person in
conformance with 5 U.S.C. 552(a) (3). The request must be for
reasonably described records and conform in every respect with the rules
and procedures of this subpart A, particularly this section, 1.7 and
the applicable appendix to this subpart. Any request or any appeal from
the initial denial of a request that does not comply with the foregoing
requirements and those set forth elsewhere in subpart A will not be
considered subject to the time constrains of paragraphs (g), (h), and
(i) of this section, unless and until the request is amended to comply.
Components shall promptly advise the requester in what respect the
request or appeal is deficient so that it may be resubmitted or amended
for consideration in accordance with this subpart. When the request
conforms with the requirements of this subpart, components shall make
every reasonable effort to comply with the request within the time
constraints. This subpart applies only to existing records in the
possession or control of the component. There is no requirement that
records be created or data processed in a format other than required for
governmental purposes in order to comply with a request for records.
(b) Requests for records not in control of component. (1) When the
record requested is in the possession or under the control of a
component of the Department other than the office to whom the request is
addressed, the request for the record shall immediately be transferred
to the appropriate component and the requester notified to that effect.
This referral shall not be considered a denial of access within the
meaning of these regulations. The component of the Department to whom
this referral is made shall treat this request as a new request
addressed to it and the time limits for response set forth by paragraph
(g)(1) of this section shall begin when the referral is received by the
designated office or officer of the component. Where the request is for
a record which is not in the possession or control of any component of
the Department of the Treasury, the requester shall be so advised and
the request shall be returned to the requester.
(2) When an unclassified record created by another agency or another
Treasury component is in the possession of a component of the Department
of the Treasury, and that record is requested under the FOIA, the
responsible Treasury official shall refer the record to the agency or
Treasury component originating the record for a direct response to the
requester. The requester shall be informed of the referral. However,
where it is determined that the record is exempt from disclosure under
the provisions of the FOIA (5 U.S.C. 552) and will be withheld from
disclosure, the referral need not be made. In such an instance, the
component of the Department that maintains the records shall inform the
requester of the applicable appeal rights and shall notify the agency or
component that originated the record(s) of the request and the
determination not to release the record(s). If there is any subsequent
change in this initial determination, the documents shall be referred to
the originating agency or component for response to the requester.
(3) When a classified record originated by another agency or another
component of the Department is in the possession of a component of the
Department of the Treasury, and a FOIA request for that record is
received, the request shall be referred to the originating Department,
agency, or component of the Department for a direct response. This is
not a denial of a FOIA request; thus no appeal rights accrue to the
requester.
(4) When a FOIA request is received for a record created by a
component of the Department that includes information originated by
another component of the Department or another agency, the record shall
be referred to the originating agency or component of the Department for
review, coordination, and concurrence. The Department component shall
not release any records without prior consultation with the other
component or agency.
(5) In certain instances and at the discretion of the Departmental
Offices, requests having impact on two or more components of the
Department shall be coordinated by the Departmental Offices.
(c) Form of request. In order to be subject to the provisions of
this section, the following must be satisfied.
(1) The request for records shall be made in writing, signed by the
person making the request, and state that it is made pursuant to the
Freedom of Information Act, 5 U.S.C. 552, or these regulations. A
request for records shall also state how the documents released will be
used (See 1.7(a)).
The Departmental components may determine from the use specified in
the request that the requester is a commercial user. A commercial use
request refers to a request from or on behalf of one who seeks
information for a use or purpose that furthers the commercial, trade, or
profit interests of the requester or the person on whose behalf the
request is made. Moreover, where a component of the Department has
reasonable cause to doubt the use to which a requester will put the
records sought, or where that use is not clear from the request itself,
components should seek additional clarification before assigning the
request to a specific category.
(2) The request shall identify whether the requester is an
educational institution, non-commercial scientific institution, or
representative of the news media subject to the fee provisions described
in 1.7.
(i) These categories of requesters are defined as follows:
(A) Educational institution. This refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
(B) Non-commercial scientific institution. This refers to an
institution that is not operated on a ''commercial'' basis as that term
is referenced in paragraph (c)(1)(i) of this section, and which is
operated solely for the purpose of conducting scientific research the
results of which are not intended to promote any particular product or
industry.
(C) Representative of the news media. This refers to any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term ''news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ''news'') who make their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of ''freelance'' journalists,
they may be regarded as working for a news organization if they can
demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but components may also look to
the past publication record of a requester in making this determination.
(3) The request must be addressed to the component that maintains the
record. The request should be sent to the component at its proper
address. Both the envelope and the request itself should be clearly
marked ''Freedom of Information Act Request,'' and addressed to the
appropriate component. See the appendices to this subpart for the
office or officer to which requests shall be addressed for each
component. A requester in need of guidance in defining a request or
determining the proper component to which a request should be sent may
write to Disclosure Branch, Department of the Treasury, 1500
Pennsylvania Avenue, NW, Washington, DC 20220. Requests for certain
historical records must be directed to National Archives in accordance
with its regulations;
(4) The request must reasonably describe the records in accordance
with paragraph (d) of this section;
(5) The request must set forth the address where the person making
the request wants to be notified about whether or not the request will
be granted;
(6) The request must state whether the requester wishes to inspect
the records or desires to have a copy made and furnished without first
inspecting them; and
(7) The request must state the firm agreement of the requester to pay
the fees for duplication, search, and/or review as may ultimately be
determined in accordance with 1.7, or request that such fees be reduced
or waived and state the justification for such request (see 1.7(d)).
The requester shall be promptly advised of the estimate of fees due and
asked to agree to pay this amount, when:
(i) The initial request does not state a firm agreement to pay fees,
but instead places an upper limit on the amount the requester agrees to
pay, and this upper limit exceeds the limitations in 1.7(a) (for
example, the first 100 pages of reproduction and the first two hours of
search time are furnished without charge, etc.), and is likely to be
lower than the fees ultimately estimated to be due; or
(ii) The request is determined to be for a commercial use; or
(iii) The requester asks for an estimate of the fees to be charged;
or
(iv) When the estimated fee is below $250 but above the upper level
set by the requester; or
(v) Whenever the estimate is above $250 whether or not an upper level
is set.
Where the initial request includes a request for reduction or waiver
of fees, the responsible official shall determine whether to grant the
request for reduction or waiver in accordance with 1.7(d) of this part
and notify the requester of this decision. If the decision results in
the requester being liable for all or part of the fees normally due, ask
the requester to agree to pay the amount so determined. The
requirements of this paragraph (c) will not be considered met until the
requester has explicitly agreed to pay the fees applicable to the
request for records, if any, or has made payment in advance of the fees
estimated to be due, see 1.7(f).
(d) Reasonable description of records. (1) The request for records
must describe the records in reasonably sufficient detail to enable the
Department of the Treasury employees who are familiar with the subject
area of the request to locate the records without placing an
unreasonable burden upon the component. Whenever possible, a request
should include specific information about each record sought, such as
the date, title or name, author, recipients, and subject matter of the
record. In addition, if the request seeks records pertaining to pending
litigation, the request should indicate the title of the case, the court
in which the case was filed, and the nature of the case. If a component
determines that the request does not reasonably describe the records
sought, the requester shall be given an opportunity to refine the
request. Such opportunity may, where desirable, involve a conference
with knowledgeable Department of the Treasury personnel. The reasonable
description requirement shall not be used by officers or employees of
the Department of the Treasury as a device for improperly withholding
records from the public.
(2) The Department of the Treasury will make every reasonable effort
to comply fully with all requests for access to records subject only to
any applicable exemption set forth in 1.2(c). However, in any situation
in which it is determined that a request for voluminous records would
unduly burden and interfere with the operations of a component, the
person making the request will be asked to be more specific and to
narrow the request. In addition, the person making the request will
also be asked to agree on an orderly procedure for producing the
requested records in order to satisfy the request without adversely
affecting agency operations.
(e) Date of receipt of request. A request for records shall be
considered to have been received for purposes of this subpart on the
later of the dates on which:
(1) The requirements of paragraph (c) of this section have been
satisfied, and, where applicable,
(2) The requester has agreed in writing, to pay the fees for search,
duplication, and review determined due in accordance with 1.7, or
(3) The fees have been waived in accordance with 1.7(d), or
(4) Payment in advance has been received from the requester, when
required in accordance with 1.7(f). Requests for records, including
prepayment, shall be promptly stamped with the date of receipt by the
office prescribed in the appropriate appendix. A final notification of
waiver of fees will be stamped with the date of transmittal by the
appropriate office. For purposes of this subpart, the date of receipt
of the request is the lastest of these stamped dates. As soon as the
date of receipt has been established, the requester shall be so
informed. At this time the requester will also be advised when to
expect a response within the time limits specified in paragraph (g)(1)
of this section, unless extended as provided in paragraph (i)(1) of this
section.
(f) Search for record requested. When a request is received,
Department of the Treasury employees will search to identify and locate
the requested records. Where a request includes documents stored at the
Federal Records Center, the Department will make reasonable efforts to
comply with the time constraints of the Act; however, delays in
processing these requests are common and will usually require additional
time. Searches for records maintained in computerized form include
services functionally analogous to searches for records which are
maintained in a conventional form. A component of the Department of the
Treasury is not required under 5 U.S.C. 552 to tabulate or compile
information for the purpose of creating a record.
(g) Initial determination -- (1) In general. The officers designated
in the appendices to this part will make initial determinations either
to grant or to deny in whole or in part requests for records. These
determinations will be made within 10 days excepting Saturdays, Sundays,
and legal public holidays) after the date of receipt of the request, as
determined in accordance with paragraph (e) of this section, unless the
designated officer invokes an extension pursuant to paragraph (i)(1) of
this section or the requester otherwise agrees to an extension of the
10-day time limitation. The requester will be notified immediately of
this determination.
(2) Granting of request. If the request is granted, and if the
person making the request wants a copy of the requested records, a copy
of these records shall be mailed to the requester by the component
together with a statement of the fees for search and duplication, either
at the time of the determination or shortly thereafter. In certain
unusual circumstances, the Department may elect to coordinate the
request involving two or more components; in such a case only one reply
will be prepared. In the case of a request for inspection, the
requester shall be notified in writing of the determination, when and
where the requested records may be inspected, and of the fees involved
in complying with the request. The records shall then promptly be made
available for inspection at the time and place stated in a manner that
will not interfere with their use by the Department of the Treasury and
will not exclude other persons from making inspections. In addition,
reasonable limitations may be placed on the number of records which may
be inspected by a person on any given date. The procedure for
inspection shall not unreasonably disrupt the operations of the
component. The person making the request will not be allowed to remove
the records from the room where inspection is made. If, after making
inspection, the person making the request desires copies of all or a
portion of the requested records, copies will be furnished upon payment
of the established fees prescribed by 1.7. Fees may be charged for
search time as stated in 1.7, and for copies made available for
inspection.
(3) Denial of request. If it is determined that the request for
records should be denied (whether in whole or in part or subject to
conditions or exceptions), the person making the request will be so
notified by mail. The letter of notification shall specify the city or
other location where the requested records are situated (if known),
contain a statement of the applicable exemptions relied on in not
granting the request, set forth the name and title or position of the
responsible official, advise the person making the request of the right
to administrative appeal in accordance with paragraph (h) of this
section, and specify the official or office to which such appeal shall
be submitted. Fees may be charged for search time as prescribed in
1.7, even if the time spent searching does not yield any records, or if
records are denied.
(4) Inability to locate records within time limits. Where the
records requested cannot be located and evaluated within the initial
10-day period or any extension of that period as specified in paragraph
(i)(1) of this section, the search for the records shall continue. The
requester shall be notified of this delay and asked to agree to a
voluntary extension of time in which to locate the records. Agreeing to
this voluntary extension of time will not be considered a waiver of the
requester's right to appeal in the event of the Department's failure to
comply with the time extension granted. The requester shall be advised
that this notification may be considered a denial of access within the
meaning of paragraph (g)(3) of this section, and be provided with the
address to which an administrative appeal may be addressed.
(h) Administrative appeal. (1) When a request for access to records
has been denied in whole or in part, or when there has been an adverse
determination of the requester's category as described in 1.5(c)(1) and
provided in 1.7(d)(4), the requester may appeal the denial at any time
within 35 days of receipt of a notice denying the request or the date of
the letter transmitting the last records released, whichever is later.
The requester may also appeal when a component fails to respond to a
request within the time limits set forth in the FOIA. The
administrative appeal may be submitted to the official specified in the
appropriate appendix to this subpart whose title and address should also
have been included in the initial determination to deny access to the
records. An appeal that is improperly addressed will be considered not
to have been received by the Department until the office specified in
the appropriate appendix receives the appeal. The appeal shall --
(i) Be made in writing and signed by the requester;
(ii) Be addressed to and mailed or hand delivered, within 35 days of
the date of the initial determination, to the office or officer
specified in the appropriate appendix to this subpart and also in the
initial determination. (See the appendices to this subpart for the
address to which appeals made by mail should be addressed.);
(iii) Reasonably describe, in accordance with paragraph (d) of this
section, the records requested from the denial of access to which an
appeal is being taken;
(iv) Set forth the address where the requester desires to be notified
of the determination on appeal;
(v) Specify the date of the initial request and date of the letter
denying the initial request; and
(vi) Petition such official to grant the request for records and
state any supporting arguments.
(2) Appeals shall be promptly stamped with the date of their receipt
by the office to which addressed. This stamped date will be considered
to be the date of receipt for all purposes of this subpart. The receipt
of the appeal shall be acknowledged by the responsible official and the
requester advised of the date the appeal was received and the expected
date of response. The determination to affirm the initial denial (in
whole or in part) or to grant the request for records shall be made and
notification of the determination mailed within 20 days (exclusive of
Saturdays, Sundays, and legal public holidays) after the date of receipt
of the appeal, unless extended pursuant to paragraph (i)(1) of this
section. If it is determined that the appeal from the initial denial is
to be denied (in whole or in part) --
(i) The requester shall be notified in writing of the denial;
(ii) The reasons for the denial, including the FOIA exemptions relied
upon;
(iii) The name and title or position of the official responsible for
the denial on appeal;
(iv) A statement that judicial review of the denial is available in
the United States District Court for the judicial district in which the
requester resides or has a principal place of business, the judicial
district in which the requested records are located, or the District of
Columbia in accordance with 5 U.S.C. 552(a)(4)(B).
If the denial of the request is reversed on appeal, the requester
shall be so notified and the request shall be processed promptly in
accordance with the decision on appeal.
(3) If a determination cannot be made within the 20-day period (or
any extension pursuant to paragraph (i)(1) of this section) the
requester shall be promptly notified in writing that the determination
will be made as soon as practicable but that the requester is
nonetheless entitled to commence an action in a district court as
provided in paragraph (k) of this section. However, the requester may
also be invited, in the alternative, to agree to a voluntary extension
of the 20 day appeal period. This voluntary extension shall not
constitute a waiver of the right of the requester ultimately to commence
an action in a United States district court.
(i) Time extensions -- (1) 10-day extension. In unusual
circumstances, the time limitations specified in paragraphs (g) and (h)
of this section may be extended by written notice from the official
charged with the duty of making the determination to the person making
the request or appeal setting forth the reasons for this extension and
the date on which the determination is expected to be sent. Any
extension or extensions of time shall not cumulatively total more than
10 additional working days. (For example, if an extension pursuant to
this subparagraph is invoked in connection with an initial
determination, any unused days of the extension period may be invoked in
connection with the determination on administrative appeal by written
notice from the official who is to make the appellate determination. If
no extension is sought for the initial determination, an extension of 10
days may be added to the ordinary 20-day period for appellate review.)
As used in this paragraph, ''unusual circumstances'' means, but only to
the extent reasonably necessary to the proper processing of the
particular request, the following:
(i) The need to search for and collect the requested records from
field facilities or other establishments in buildings other than the
building in which the office of the official to whom the request is made
is located;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request, or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components within
the Department of Treasury or within a component (other than the legal
staff or the component concerned with public affairs) having substantial
subject-matter interest. Consultations with personnel of the Department
of Justice concerned with requests for records under 5 U.S.C. 552 do not
constitute a basis for an extension under this subdivision.
(2) Extension by judicial review. If a component of the Department
of the Treasury fails to comply with the time limitations specified in
paragraph (g) or (h) of this section and the person making the request
initiates a suit in accordance with paragraph (k) of this section, the
court in which the suit was initiated may retain jurisdiction and allow
the component additional time to review its records, provided that the
component demonstrates the existence of exceptional circumstances and
the exercise of due diligence in responding to the request.
(j) Failure to comply. If a component of the Department of the
Treasury fails to comply with the time specified in paragraph (g), (h),
or (i) of this section, any person making a request for records shall be
considered to have exhausted adminsitrative remedies with respect to the
request. Accordingly, the person making the request may initiate suit
as set forth in paragraph (k) of this section.
(k) Judicial review. If a request for records is denied upon appeal
pursuant to paragraph (h) of this section, or if no determination is
made within the 10-day or 20-day periods specified in paragraphs (g) and
(h) of this section, respectively, together with any extension pursuant
to paragraph (i)(1) of this section or by agreement of the requester,
the person making the request may commence an action in a United States
district court in the district in which he resides, in which his
principal place of business is located, in which the records are
situated, or in the District of Columbia, pursuant to 5 U.S.C. 552
(a)(4). Service of process in such an action shall be in accordance
with the Federal Rules of Civil Procedure (28 U.S.C. App.) applicable to
actions against an agency of the United States. Delivery of process
shall be directed to the official specified in the appropriate appendix
to this subpart as the official to receive such process.
(l) Preservation of records. Each component shall preserve all
correspondence relating to the requests it receives under this subpart,
and all records processed pursuant to such requests, until such time as
the destruction of such correspondence and records is authorized
pursuant to Title 44 of the United States Code. Under no circumstances
shall records be destroyed while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.
(m) Processing of requests that are not properly addressed. A
request that is not properly addressed as specified in the appropriate
appendix to this subpart shall be forwarded to the Departmental
Disclosure Office, who will forward the request to the appropriate
component or components for processing. A request not addressed to the
appropriate component will be considered not to have been received for
purposes of paragraph (e) of this section until the request has been
received by the appropriate component. A component receiving an
improperly addressed request forwarded by the FOIA/PA Section shall
notify the requester of the date on which it received the request.
31 CFR 1.6 Business information.
(a) In general. Business information provided to the Department of
the Treasury by a business submitter shall not be disclosed pursuant to
a Freedom of Information Act request except in accordance with this
section.
(b) Notice to business submitters. A component shall provide a
business submitter with prompt written notice of a receipt of a request
encompassing its business information whenever required in accordance
with paragraph (c) of this section, and except as is provided in
paragraph (g) of this section. Such written notice shall either
describe the exact nature of the business information requested or
provide copies of the records or portions of records containing the
business information.
(c) When notice is required. (1) For business information submitted
to the Department prior to July 14, 1987, the component shall provide a
business submitter with notice of receipt of a request whenever:
(i) The information is less than ten years old;
(ii) The information is subject to prior express commitment of
confidentiality given by the component to the business submitter, or
(iii) The component has reason to believe that disclosure of the
information may result in commercial or financial injury to the business
submitter.
(2) For business information submitted to the Department on or after
July 14, 1987, the component shall provide a business submitter with
notice of receipt of a request whenever:
(i) The business submitter has in good faith designated the
information as commercially or financially sensitive information, or
(ii) The component has reason to believe that disclosure of the
information may result in commercial or financial injury to the business
submitter.
(3) Notice of a request for business information falling within
paragraph (c)(1) of this section shall be required for a period of not
more than ten years after the date of submission unless the business
submitter requests, and provides acceptable justification for, a
specific notice period of greater duration.
(4) Whenever possible, the submitter's claim of confidentiality
should be supported by a statement or certification by an officer or
authorized representative of the company that the information in
question is in fact confidential commercial or financial information and
has not been disclosed to the public.
(d) Opportunity to object to disclosure. Through the notice
described in paragraph (b) of this section, a component shall afford a
business submitter ten working days within which to provide the
component with a detailed statement of any objection to disclosure.
Such statement shall specify all grounds for withholding any of the
information under any exemption of the Freedom of Information Act and,
in the case of Exemption 4, shall demonstrate why the information is
contended to be a trade secret or commercial or financial information
that is privileged or confidential. Information provided by a business
submitter pursuant to this paragraph may itself be subject to disclosure
under the FOIA.
When notice is given to a submitter under this section, the requester
will be advised that such notice has been given to the submitter. The
requester will be further advised that a delay in responding to the
request may be considered a denial of access to records and that the
requester may proceed with an administrative appeal or seek judicial
review, if appropriate. However, the requester will be invited to agree
to a voluntary extension of time so that the component may review the
business submitter's objection to disclosure.
(e) Notice of intent to disclose. A component shall consider
carefully a business submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose business
information. Whenever a component decides to disclose business
information over the objection of a business submitter, the component
shall forward to the business submitter a written notice which shall
include:
(1) Statement of the reasons for which the business submitter's
disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which is ten working days after the
notice of the final decision to release the requested information has
been mailed to the submitter. A copy of the disclosure notice shall be
forwarded to the requester at the same time.
(f) Notice of FOIA lawsuit. Wherever a requester brings suit seeking
to compel disclosure of business information covered by paragraph (c) of
this section, the component shall promptly notify the business
submitter.
(g) Exception to notice requirement. The notice requirements of this
section shall not apply if:
(1) The component determines that the information shall not be
disclosed;
(2) The information lawfully has been published or otherwise made
available to the public.
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The information was acquired in the course of a lawful
investigation of a possible violation of criminal law.
31 CFR 1.7 Fees for services.
(a) In general. (1) This fee schedule is applicable uniformly to all
components of the Department of the Treasury and supersedes fee
schedules published by any component of the Department. Specific levels
of fees are prescribed for each of the following categories of
requesters. (Requesters are required to identify what category they
belong to in their initial request in accordance with 1.5(c)).
(i) Commercial use requesters. These requesters are assessed charges
which recover the full direct costs of searching, reviewing, and
duplicating the records sought. Commercial use requesters are entitled
to neither two hours of free search time nor 100 free pages of
reproduction of documents. Moreover, when a request is received for
disclosure that is primarily in the commercial interest of the
requester, the Department is not required to consider a request for a
waiver or reduction of fees based upon the assertion that disclosure
would be in the public interest. The Department may recover the cost of
searching for and reviewing records even if there is ultimately no
disclosure of records. Requesters must reasonably describe the records
sought.
(ii) Educational and non-commercial scientific institution
requesters. Documents shall be provided to requesters in this category
for the cost of reproduction alone, excluding charges for the first 100
pages. To be eligible, requesters must show that the request is made
under the auspices of a qualifying institution and that the records are
not sought for a commercial use, but are sought in furtherance of
scholarly (if the request is from an educational institution) or
scientific (if the request is from a non-commercial scientific
institution) research. Requesters eligible for free search must
reasonably describe the records sought.
(iii) Requesters who are representatives of the news media.
Documents shall be provided to requesters in this category for the cost
of reproduction alone, excluding charges for the first 100 pages.
Requesters eligible for free search must reasonably describe the records
sought.
(iv) All other requesters. Requesters who do not fit any of the
categories described in this subsection shall be charged fees that will
recover the full direct cost of searching for and reproducing records
that are responsive to the request, except that the first 100 pages of
reproduction and the first two hours of search time shall be furnished
without charge. The Department may recover the cost of searching for
records even if there is ultimately no disclosure of records. Requests
from record subjects for records about themselves filed in the
Department's systems of records will continue to be treated under the
fee provisions of the Privacy Act of 1974 which permit fees only for
reproduction. Requesters must reasonably describe the records sought.
(2) Definition of search, duplication, and review. The search,
duplication, and review services for which fees shall be charged in
accordance with the category of requester are defined as follows:
(i) Search. The term ''search'' includes all time spent looking for
material that is responsive to a request, including page-by-page or
line-by-line identification of material within documents. Searches may
be done manually or by computer using existing programming.
(ii) Duplication. The term ''duplication'' refers to the process of
making a copy of a document in order to respond to a FOIA request. Such
copies can take the form of paper copy, microform, audio-visual
materials, or machine readable documentation (e.g., magnetic tape or
disk), among others.
(iii) Review. The term ''review'' refers to the process of examining
documents located in response to a commercial use request to determine
whether any portion of any document located is permitted to be withheld.
It also includes processing any documents for disclosure, e.g., doing
all that is necessary to excise them and otherwise prepare them for
release.
(3) Aggregating requests. When the Department or a component of the
Department reasonably believes that a requester or group of requesters
is attempting to break a request down into a series of requests for the
purpose of evading the assessment of fees, the agency shall aggregate
any such requests and charge accordingly.
(4) Publications available for sale through the Government Printing
Office. While certain publications which are available for sale through
the Government Printing Office may be placed on the shelves of the
reading rooms and similar public inspection facilities, such
publications will not be available for sale there. Persons desiring to
purchase such publications should contact the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402.
However, copies of pages of such publications may be obtained at those
facilities in accordance with the schedule of fees set forth in
paragraph (g) of this section.
(b) When fees are charged. (1) No fee will be charged for monitoring
a requester's inspection of records.
(2) Fees shall be charged in accordance with the schedule contained
in paragraph (g) of this section for serivces rendered in responding to
requests for records, unless any one of the following applies:
(i) Services were performed without charge;
(ii) The cost of collecting a fee would be equal to or greater than
the fee itself; or,
(iii) The fees were waived or reduced in accordance with paragraphs
(c) or (d) of this section.
(c) Services performed without charge. The heads of components of
their delegates are authorized to determine, under the rulemaking
procedures of 5 U.S.C. 553, which classes of records under their control
may be provided to the public without charge, or at a reduced charge.
(d) Waiver or reduction of fees. (1) Fees may be waived or reduced
on a case by case basis in accordance with this paragraph by the
official who determines the availability of the records, provided such
waiver or reduction has been requested in writing. Fees shall be waived
or reduced by this official when it is determined, based upon the
submission of the requester, that a waiver or reduction of the fees is
in the public interest because furnishing the information 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.
(2) Normally no charge shall be made for providing records to
Federal, state or foreign governments, international governmental
organizations, or local governmental agencies or offices.
(3) Appeals from denials of requests for waiver or reduction of fees
shall be decided in accordance with the criteria set forth in paragraph
(d)(1) of this section by the official authorized to decide appeals from
denials of access to records. Appeals shall be addressed in writing to
such official within 35 days of the denial of the initial request for
waiver or reduction and shall be decided promptly.
(4) Appeals from an adverse determination of the requester's category
as described in 1.5(c)(1) and provided in 1.5(h)(1) shall be decided
by the official authorized to decide appeals from denials of access to
records and shall be based upon a review of the requester's submission
and the component's own records. Appeals shall be addressed in writing
to such official within 35 days of the component's determination of the
requester's category and shall be decided promptly.
(e) Avoidance of unexpected fees. In order to protect the requester
from unexpected fees, all requests for records shall state the agreement
of the requester to pay the fees determined in accordance with paragraph
(g) of this section and qualified by the limitations in paragraph (a) of
this section or state the amount which the requester has set as an
acceptable upper limit he or she is willing to pay to cover the costs of
processing the request.
(1) When the fees for processing the request are estimated by the
component of the Department of the Treasury to exceed the limit set by
the requester, and that amount is less than $250, the requester shall be
notified of the estimated costs. In addition, the requester shall also
be given an opportunity to reformulate the request in an attempt to
reduce fees and still provide the requester with the documents sought.
(2) When the requester has failed to state a limit and the costs are
estimated to exceed $250.00 and the relevant component has not then
determined to waive or reduce the fees, a notice shall be sent to the
requester. This notice shall:
(i) Inform the requester of the estimated costs;
(ii) Extend an offer to the requester to confer with personnel of the
relevant component of the Department of the Treasury in an attempt to
reformulate the request in a manner which will reduce the fees and still
meet the needs of the requester.
(3) When the Department or a component of the Department acts under
paragraph (e)(1) or (2) of this section, the administrative time limits
of 10 working days from receipt of initial requests and 20 working days
from receipt of appeals from initial denial plus extensions of these
time limits will begin only after fees have been paid or a request
reformulated.
(f) Form of payment. (1) Payment shall be made by check or money
order payable to the order of the Treasury of the United States or that
relevant component of the Department of the Treasury.
(2) The Department of the Treasury reserves the right to request
prepayment after a request is processed and before documents are
released.
(3) When costs are estimated or determined to exceed $250, the
Department shall notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a history
of prompt payment of FOIA fees or require a requester to make an advance
payment of the entire fee before continuing to process the request in
the case of requesters with no history of payment.
(4) If a requester has previously failed to pay a fee in a timely
fashion (i.e. within 30 days of the date of the billing), the requester
shall be required to pay the full amount owed plus any applicable
interest (31 U.S.C. 3717), and to make an advance payment of the full
amount of the estimated fee before the Department begins to process a
new request or the pending request. Whenever interest is charged, the
Department shall begin assessing interest on the 31st day following the
day on which billing was sent. Interest will be at the rate prescribed
in 31 U.S.C. 3717. In addition, the Department will take all steps
authorized by the Debt Collection Act of 1982, including administrative
offset pursuant to 31 CFR part 4, disclosure to consumer reporting
agencies and use of collection agencies, to encourage repayment.
(g) Amounts to be charged for specified services. The fees for
services performed by the relevant component of the Department of the
Treasury shall be imposed and collected as set forth in this paragraph.
Should services other than those described be requested and rendered,
appropriate fees shall be established by the head of the relevant
component of the Department, or a delegate, and such fees shall be
imposed and collected, but subject to the constraints imposed by 5
U.S.C. 552(a)(4)(A).
(1) Copying records. All requesters, except commercial requesters,
will receive the first 100 pages duplicated without charge. Absent a
determination to waive fees, a component shall charge requesters as
follows:
(i) $.15 per copy of each page, up to 8 1/2 14 , made by photocopy
or similar process.
(ii) Photographs, films, and other materials -- actual cost of
reproduction.
(iii) Other types of duplication services not mentioned above --
actual cost.
(iv) Records may be released to a private contractor for copying and
the requester will be charged the actual cost of duplication charged by
the private contractor.
(2) Search services. Educational and non-commercial scientific
requesters and members of the news media shall not be charged for any
search time. Other requesters, who are not commercial requesters, shall
not be charged for the first two hours of search time. Components shall
charge for search services consistent with the following:
(i) Searches other than for computerized records. The Department
shall charge for records at the salary rate(s) (i.e. basic pay plus 16
percent) of the employee(s) making the search. However, where a single
class of personnel is used exclusively (e.g., all
administrative/clerical, or all professional/executive), an average rate
for the range of grades typically involved may be established. This
charge shall include transportation of personnel and records necessary
to the search at actual cost.
(ii) Searches for computerized records. Actual direct cost of the
search, including computer search time, runs, and the operator's salary.
The fee for computer printouts will be actual costs.
(3) Review of records. The Department shall charge commercial use
requesters for review of records at the initial administration level at
the salary rate(s) (i.e. basic pay plus 16 percent) of the employee(s)
making the review. However, when a single class of personnel is used
exclusively (e.g., all administrative/clerical, or all
professional/executive), components may establish an average rate for
the range of grades typically involved.
(4) Inspection of documents. Fees for all services provided will be
charged whenever a component must make copies available to the requester
for inspection.
(5) Other services. Other services and materials requested which are
not covered by this part nor required by the FOIA are chargeable at the
actual cost to the Department. This includes, but is not limited to:
(i) Certifying that records are true copies;
(ii) Sending records by special methods such as express mail, etc.
31 CFR 1.7 Appendices to Subpart A
31 CFR 1.7 Appendix A -- Departmental Offices
31 CFR 1.7 Pt. 1, Subpt. A, App. A
1. In general. This appendix applies to the Departmental Offices as
defined in 31 CFR 1.1(d)(1). It identifies the location of the public
reading room at which the following documents are available for public
inspection and copying: A description of the central and field offices;
the established places where the public may obtain information,
decisions, statements of the general course and method by which
functions are channeled and determined; rules of procedure,
descriptions of forms and where they may be obtained; substantive rules
and statements of general policy and interpretations adopted by the
agency; and each amendment, revision, or repeal of the foregoing;
final adjudications of cases; statements of policy and interpretations
which have been adopted by the agency and are not published in the
Federal Register; administrative staff manuals and instructions to
staff that affect a member of the public. In addition, the appendix
identifies the officers designated to make the initial and appellate
determinations to FOIA requests, the officers designated to receive
service of process, and the addresses for delivery of requests, appeals
and service of process.
2. Public reading room. The public reading room for the Departmental
Offices is maintained at the following location:
Library, Room 5030, Main Treasury Building, 1500 Pennsylvania Avenue
NW., Washington, DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Departmental Offices
will be made by the head of the organizational unit having immediate
custody of the records requested or the delegate of such official.
Requests for records should be addressed to: Freedom of Information
Request, D.O., Chief, Disclosure Branch, Department of the Treasury,
1500 Pennsylvania Avenue NW., Washington, DC 20220.
Requests may be delivered in person to the Main Treasury Building,
Room 5030, 1500 Pennsylvania Avenue NW., Washington, DC.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Departmental Offices will be made by the Secretary, Deputy
Secretary, Under Secretary, General Counsel, or Assistant Secretary
having jurisdiction over the organizational unit which has immediate
custody of the records requested, or the delegate of such officer.
Appeals made by mail should be addressed to: Freedom on Information
Appeal, D.O., Chief, Disclosure Branch, Department of the Treasury, 1500
Pennsylvania Avenue NW., Washington, DC 20220.
Appeals may be delivered personally to the Main Treasury Building,
Room 5030, 1500 Pennsylvania Avenue NW., Washington, DC.
5. Delivery of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
such officer and shall be delivered to the following location: General
Counsel, Department of the Treasury, Room 3000, Main Treasury Building,
1500 Pennsylvania Avenue NW., Washington. DC 20220.
31 CFR 1.7 Appendix B -- Internal Revenue Service
31 CFR 1.7 Pt. 1, Subpt. A, App. B
1. In general. This appendix applies to Internal Revenue Service.
It identifies the location of the public reading room at which the
following documents of the Internal Revenue Service are available for
public inspection and copying: A description of the central and field
offices; the established places where the public may obtain
information, decisions, statements of the general course and method by
which functions are channeled and determined; rules of procedure,
descriptions of forms and where they may be obtained; substantive rules
and statements of general policy and interpretations adopted by the
agency; and each amendment, revision, or repeal of the foregoing;
final adjudications of cases; statements of policy and interpretations
which have been adopted by the agency and are not published in the
Federal Register administrative staff manuals and instructions to staff
that affect a member of the public. In adition, the appendix identifies
the officers designated to make the initial and appellate determinations
to FOIA requests, the officers designated to receive service of process,
and the addresses for delivery of requests, appeals and service of
process. For additional rules issued with respect to the Internal
Revenue Service, see 26 CFR 601.701 and 601.702.
2. Public reading room. The public reading room for the Internal
Revenue Service is maintained at the following location: Room 1569,
1111 Constitution Avenue NW., Washington DC.
Mailing address: Internal Revenue Service, P.O. Box 338, Ben
Franklin Station, Washington, DC 20044.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Internal Revenue
Service will be made by those officials specified in 26 CFR 601.702.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Internal Revenue Service will be made by the Commissioner of
Internal Revenue or the delegate of such officer. Appeals made by mail
should be addressed to:
Freedom of Information Appeal, Commissioner of Internal Revenue
Service, c/o Ben Franklin Station, P.O. Box 929, Washington, DC 20044.
Appeals may be delivered personally to the
Director of the Disclosure Litigation Division, Office of the Chief
Counsel, Internal Revenue Building, 1111 Constitution Avenue NW.,
Washington, DC.
5. Delivery of process. Service of process will be received by the
Commissioner of Internal Revenue at the following address:
Commissioner, Internal Revenue Service, 1111 Constitution Avenue NW.,
Washington, DC 20224. Attention: CC:A:OS.
31 CFR 1.7 Appendix C -- United States Customs Service
31 CFR 1.7 Pt. 1, Subpt. A, App. C
1. In general. This appendix applies to the United States Customs
Service. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
a description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they
may be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued
specifically with respect to the United States Customs Service, see 19
CFR part 103.
2. Public reading rooms. Public reading rooms for the United States
Customs Service are maintained at the following locations:
United States Customs Service, 1301 Constitution Avenue NW.,
Washington, DC 20229.
Northeast: 100 Summer Street, Boston, MA 02110.
New York: 6 World Trade Center, New York, NY 10048.
Southeast: 99 Southeast 5th Street, Miami, FL 33131.
South Central: 423 Canal Street, New Orleans, LA 70130.
Southwest: 5850 San Felipe Street, Houston, TX 77057.
Pacific: 300 North Los Angeles Street, Los Angeles, CA 90012.
North Central: 55 East Monroe Street, Chicago, IL 60603.
3. Requests for records -- (a) Headquarters. Initial determinations
under 31 CFR 1.5(g) as to whether to grant requests for records will be
made by the appropriate Division Director at Customs Service
Headquarters having custody of or functional jurisdiction over the
subject matter of the requested records. If the request relates to
records maintained in an office which is not within a division, the
initial determination shall be made by the individual designated for
that purpose by the Assistant Commissioner or Comptroller, having
responsibility for that office. Requests may be mailed or delivered in
peson to: Freedom of Information Act Request, Chief, Disclosure Law
Branch, U.S. Customs Service, 1301 Constitution Avenue NW., Washington,
DC 20229.
(b) Regional Offices. Initial determinations under 31 CFR 1.5(g) as
to whether to grant requests for records will be made by the Regional
Commissioner of Customs in whose region the records are maintained.
Requests may be mailed or delivered personally to the respective
Regional Commissioner at the following regional locations:
Northeast: 100 Summer Street, Boston, MA 02110.
New York: 6 World Trade Center, New York, NY 10048.
Southeast: 99 Southeast 5th Street, Miami, FL 33131.
South Central: 423 Canal Street, New Orleans, LA 70130.
Southwest: 5850 San Felipe Street, Houston, TX 77057.
Pacific: 300 North Los Angeles Street, Los Angeles, CA 90012.
North Central: 55 East Monroe Street, Chicago, IL 60603.
Any substantive denial of an initial request for information under 31
CFR 1.5(g) will be made by the appropriate Division Director at Customs
Service Headquarters having custody of or functional jurisdiction over
the subject matter of the requested records. If the request relates to
records maintained in an office which is not within a division, the
initial determination shall be made by the individual designated for
that purpose by the Assistant Commissioner or Comptroller having
responsibility for that office.
(c) All such requests should be conspicuously labeled on the face of
the envelope, ''Freedom of Information Act Request'' or ''FOIA
Request''.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) will be made by the
Commissioner of Customs, and all such appeals should be mailed or
personally delivered to the United States Customs Service, 1301
Constitution Avenue NW., Washington, DC 20229.
5. Delivery of process. Service of process will be received by the
Chief Counsel, United States Customs Service, 1301 Constitution Avenue
NW., Washington, DC 20229.
31 CFR 1.7 Appendix D -- United States Secret Service
31 CFR 1.7 Pt. 1, Subpt. A, App. D
1. In general. This appendix applies to the United States Secret
Service. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
A description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they
may be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued
specifically with respect to the United States Secret Service, see 31
CFR parts 401 through 408.
2. Public reading room. The United States Secret Service will
provide a room on an ad hoc basis when necessary. Contact the
Disclosure Officer, Room 720, 1800 G Street NW., Washington, DC 20223 to
make appointments.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the United States Secret
Service will be made by the Freedom of Information and Privacy Acts
Officer, United States Secret Service. Requests may be mailed or
delivered in person to: Freedom of Information Act Request, FOI and
Privacy Acts Officer, U.S. Secret Service, Room 720, 1800 G Street, NW.,
Washington, DC 20223.
4. Administrative appeal of initial determinations under 31 CFR
1.5(h) with respect to records of the United States Secret Service will
be made by the Deputy Director, United States Secret Service. Appeals
should be addressed to: Freedom of Information Appeal, Deputy Director,
United States Secret Service, Room 941, 1800 G Street, NW., Washington,
DC 20223.
5. Delivery of process. Service of process will be received by the
United States Secret Service Chief Counsel at the following address:
Chief Counsel, United States Secret Service, 1800 G Street NW., Room
842, Washington, DC 20223.
31 CFR 1.7 Appendix E -- Bureau of Alcohol, Tobacco, and Firearms
31 CFR 1.7 Pt. 1, Subpt. A, App. E
1. In general. This appendix applies to the Bureau of Alcohol,
Tobacco, and Firearms. It identifies the location of the public reading
room at which the following documents are available for public
inspection and copying: A description of the central and field offices;
the established places where the public may obtain information,
decisions, statements of the general course and method by which
functions are channeled and determined; rules of procedure,
descriptions of forms and where they may be obtained; substantive rules
and statements of general policy and interpretations adopted by the
agency; and each amendment, revision, or repeal of the foregoing;
final adjudications of cases; statements of policy and interpretations
which have been adopted by the agency and are not published in the
Federal Register; administrative staff manuals and instructions to
staff that affect a member of the public. In addition, the appendix
identifies the officers designated to make the initial and appellate
determinations to FOIA requests, the officers designated to receive
service of process, and the addresses for delivery of requests, appeals
and service of process. For additional rules issued specifically with
respect to the Bureau of Alcohol, Tobacco, and Firearms, see 27 CFR part
71.
2. Public reading room. The Bureau of Alcohol, Tobacco, and Firearms
will make materials available for review on an ad hoc basis when
necessary. Contact the Chief, Disclosure Branch, Bureau of Alcohol,
Tobacco, and Firearms, 1200 Pennsylvania Avenue, NW., Washington, DC
20226.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Bureau of Alcohol,
Tobacco, and Firearms will be made by the Chief, Disclosure Branch,
Office of Assistant Director (Congressional and Media Affairs) or the
delegate of such officer. Requests may be mailed or delivered in person
to: Freedom of Information Act Request, Chief, Disclosure Branch,
Bureau of Alcohol, Tobacco, and Firearms, 1200 Pennsylvania Avenue, NW.,
Room 4406, Washington, DC 20226.
4. Administrative appeal of initial determination to deny records.
Appellate determination under 31 CFR 1.5(h) with respect to records of
the Bureau of Alcohol, Tobacco, and Firearms will be made by the
Director of the Bureau of Alcohol, Tobacco, and Firearms or the delegate
of such officer.
Appeals may be mailed or delivered in person to: Freedom of
Information Appeal, Director, Bureau of Alcohol, Tobacco, and Firearms,
1200 Pennsylvania Avenue, NW., Washington, DC 20226.
5. Delivery of process. Service of process will be received by the
Director of the Bureau of Alcohol, Tobacco, and Firearms at the
following location: Director, Bureau of Alcohol, Tobacco, and Firearms,
1200 Pennsylvania Avenue, NW., Washington, DC 20226, Attention: Chief
Counsel.
31 CFR 1.7 Appendix F -- Bureau of Engraving and Printing
31 CFR 1.7 Pt. 1, Subpt. A, App. F
1. In general. This appendix applies to the Bureau of Engraving and
Printing. It identifies the location of the public reading room at
which the following documents are available for public inspection and
copying: A description of the central and field offices; the
established places where the public may obtain information, decisions,
statements of the general course and method by which functions are
channeled and determined; rules of procedure, descriptions of forms and
where they may be obtained; substantive rules and statements of general
policy and interpretations adopted by the agency; and each amendment,
revision, or repeal of the foregoing; final adjudications of cases;
statements of policy and interpretations which have been adopted by the
agency and are not published in the Federal Register; administrative
staff manuals and instructions to staff that affect a member of the
public. In addition, the appendix identifies the officers designated to
make the initial and appellate determinations to FOIA requests, the
officers designated to receive service of process, and the addresses for
delivery of requests, appeals and service of process.
2. Public reading room. No room has been set aside for this purpose.
The Bureau of Engraving and Printing will make materials available for
review on an ad hoc basis when necessary. Contact the Disclosure
Officer, 14th and C Street, SW., Washington, DC 20228, to make an
appointment.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Bureau of Engraving
and Printing will be made by the Executive Assistant to the Director.
Requests may be mailed or delivered in person to: Freedom of
Information Act Request, Disclosure Officer, (Executive Assistant to the
Director), Room 104-18M, Bureau of Engraving and Printing, Washington,
DC 20228.
4. Administrative appeal of initial determination under 31 CFR 1.5(h)
with respect to records of the Bureau of Engraving and Printing will be
made by the Director of the Bureau of Engraving and Printing or the
delegate of the Director. Appeals may be mailed or delivered in person
to: Freedom of Information Appeal, Director, Bureau of Engraving and
Printing, 14th and C Streets, SW., Room 118-M, Washington, DC 20228.
5. Delivery of process. Service of process will be received by the
Chief Counsel or the delegate of such officer at the following location:
Chief Counsel, Bureau of Engraving and Printing, 14th and C Streets,
SW., Room 109-M, Washington, DC 20228.
31 CFR 1.7 Appendix G -- Financial Management Service
31 CFR 1.7 Pt. 1, Subpt. A, App. G
1. In general. This appendix applies to the Financial Management
Service. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
A description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they
may be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued
specifically with respect to Financial Management Service, see 31 CFR
part 270.
2. Public reading room. The public reading room for the Financial
Management Service is maintained at the following location: Library,
Room 5030, Main Treasury Building, 1500 Pennsylvania Avenue NW.,
Washington, DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
whether to grant requests for records will be made by the Disclosure
Officer, Financial Management Service. Requests may be mailed or
delivered in person to: Freedom of Information Request, Disclosure
Officer, Financial Management Service, Room 108, Treasury Department,
Annex No. 1, Pennsylvania Avenue and Madison Place, NW., Washington, DC
20226.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) will be made by the
Commissioner, Financial Management Service. Appeals may be mailed to:
Freedom of Information Appeal (FOIA), Commissioner, Financial Management
Service, Department of the Treasury, Annex No. 1, Washington, DC 20226.
Appeals may be delivered personally to the Office of the
Commissioner, Financial Management Service, Room 618, Treasury Annex No.
1, Pennsylvania Avenue and Madison Place, NW., Washington, DC.
5. Delivery of process. Service of process will be reeived by the
Commissioner, Financial Management Service, and shall be delivered to:
Commissioner, Financial Management Service, Department of the Treasury,
Room 618, Treasury Annex No. 1, Pennsylvania Avenue and Madison Place,
NW., Washington, DC 20226.
31 CFR 1.7 Appendix H -- United States Mint
31 CFR 1.7 Pt. 1, Subpt. A, App. H
1. In general. This appendix applies to the United States Mint. It
identifies the location of the public reading room at which the
following documents are available for public inspection and copying: A
description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they
may be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued
specifically with respect to the United States Mint, see 31 CFR part 92.
2. Public reading room. No room has been set aside for this purpose.
The U.S. Mint will provide a room on an ad hoc basis when necessary.
Contact the Disclosure Officer, Judiciary Square Building, 633 3rd
Street, NW., Washington, DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the United States Mint
will be made by the Associate Director for Policy and Management, United
States Mint. Requests may be mailed or delivered in person to: Freedom
of Information Act Request, Chief, Administrative Programs Division,
United States Mint, Department of the Treasury, Judiciary Square
Building, 633 3rd Street, NW., Washington, DC 20220.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the United States Mint will be made by the Director of the Mint.
Appeals made by mail should be addressed to: Freedom of Information
Appeal, Director of the Mint, Department of the Treasury, Judiciary
Square Building, 633 3rd Street, NW., Washington, DC 20220.
5. Delivery of process. Service of process will be received by the
Director of the Mint and shall be delivered to: Director of the Mint,
Judiciary Square Building, 633 3rd Street NW., Washington, DC 20220.
31 CFR 1.7 Appendix I -- Bureau of the Public Debt
31 CFR 1.7 Pt. 1, Subpt. A, App. I
1. In general. This appendix applies to the Bureau of the Public
Debt. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
A description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they
may be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued
specifically with respect to the Bureau of the Public Debt, see 31 CFR
part 323.
2. Public reading room. The public reading room for the Bureau of
the Public Debt is maintained at the following location: Library, Room
5030, Main Treasury Building, 1500 Pennsylvania Avenue NW., Washington,
DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records will be made by the
Information Officer of the Bureau of the Public Debt. Requests may be
mailed or delivered in person to: Freedom of Information Act Request,
Information Officer, Bureau of the Public Debt, Department of the
Treasury, 999 E Street NW., Room 553, Washington, DC, 20239.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Bureau of the Public Debt will be made by the Commissioner of the
Public Debt. Appeals made by mail should be addressed to: Freedom of
Information Appeal, Commissioner, Bureau of the Public Debt, Department
of the Treasury, Washington, DC 20239.
5. Delivery of process. Service of process will be received by the
Chief Counsel, Bureau of the Public Debt, and shall be delivered to the
following location: Chief Counsel, Bureau of the Public Debt, Room 503,
999 E Street NW., Washington, DC 20239.
31 CFR 1.7 Appendix J -- Office of the Comptroller of the Currency
31 CFR 1.7 Pt. 1, Subpt. A, App. J
1. In general. This appendix applies to the Office of the
Comptroller of the Currency. It identifies the location of the public
reading room at which the following documents are available for public
inspection and copying: a description of the central and field offices;
the established places where the public may obtain information,
decisions, statements of the general course and method by which
functions are channeled and determined; rules of procedure,
descriptions of forms and where they may be obtained; substantive rules
and statements of general policy and interpretations adopted by the
agency; and each amendment, revision, or repeal of the foregoing;
final adjudications of cases; statements of policy and interpretations
which have been adopted by the agency and are not published in the
Federal Register; administrative staff manuals and instructions to
staff that affect a member of the public. In addition, the appendix
identifies the officers designated to make the initial and appellate
determinations to FOIA requests, the officers designated to receive
service of process, and the addresses for delivery of requests, appeals
and service of process. For additional rules issued specifically with
respect to the Office of the Comptroller of the Currency, see 12 CFR
part 4.
2. Public reading room. The Office of the Comptroller of the
Currency will make materials available for review on an ad hoc basis
when necessary. Contact the Freedom of Information Officer,
Communications Division, Comptroller of the Currency, 3rd Floor, 490
L'Enfant Plaza East SW., Washington, DC 20219.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Office of the
Comptroller of the Currency will be made by the Freedom of Information
Officer or the official so designated. Requests may be mailed or
delivered in person to: Freedom of Information Act Request, Freedom of
Information Officer, Communications Division, 3rd Floor, Comptroller of
the Currency, 490 L'Enfant Plaza East SW., Washington, DC 20219.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Office of the Comptroller of the Currency will be made by the Chief
Counsel or delegates of such person. Appeals made by mail should be
addressed to: Communications Division, 3rd Floor, Comptroller of the
Currency, 490 L'Enfant Plaza East SW., Washington, DC 20219.
Appeals may be delivered personally to the Communications Division,
3rd Floor, Comptroller of the Currency, 490 L'Enfant Plaza East SW.,
Washington, DC.
5. Delivery of process. Service of process will be received by the
Chief Counsel, Comptroller of the Currency and shall be delivered to
such officer at the following location: Office of the Chief Counsel,
Comptroller of the Currency, 6th Floor, 490 L'Enfant Plaza East SW.,
Washington, DC 20219.
31 CFR 1.7 Appendix K -- United States Savings Bond Division
31 CFR 1.7 Pt. 1, Subpt. A, App. K
1. In general. This appendix applies to the United States Savings
Bond Division. It identifies the location of the public reading room at
which the following documents are available for public inspection and
copying: A description of the central and field offices; the
established places where the public may obtain information, decisions,
statements of the general course and method by which functions are
channeled and determined; rules of procedure, descriptions of forms and
where they may be obtained; substantive rules and statements of general
policy and interpretations adopted by the agency; and each amendment,
revision, or repeal of the foregoing; final adjudications of cases;
statements of policy and interpretations which have been adopted by the
agency and are not published in the Federal Register; administrative
staff manuals and instructions to staff that affect a member of the
public. In addition, the appendix identifies the officers designated to
make the initial and appellate determinations to FOIA requests, the
officers designated to receive service of process, and the addresses for
delivery of requests, appeals and service of process.
2. Public reading room. The public reading room for the United
States Savings Bond Division is maintained at the following location:
Library, Room 5030, Main Treasury Building, 1500 Pennsylvania Ave NW.,
Washington DC 20220.
3. Requests for records. (a) Initial determinations under 31 CFR
1.5(g) whether to grant requests for records relating to the substantive
Savings Bond Program, such as records relating to ownership of and
transactions in savings bonds, will be made by the Information Officer
of the Bureau of Public Debt. Requests may be mailed or delivered in
person to: Freedom of Information Act Request, Information Officer,
Bureau of the Public Debt, Room 300, Washington Building, 1435 G Street
NW., Washington 20226.
(b) Initial determinations under 31 CFR 1.5(g) whether to grant
requests for other records of the United States Savings Bond Division,
such as personnel records or records relating to the internal management
of the Division, will be made by the Director of Public Affairs, United
States Savings Bond Division. Requests made by mail should be addressed
to: Freedom of Information Act Request, Director of Public Affairs,
U.S. Savings Bond Division, Department of the Treasury, Washington, DC
20226.
Requests may be delivered in person to the Office of the Director,
U.S. Savings Bond Division, Room 257 1111 20th Street NW., Washington,
DC.
4. Administrative appeal of determination to deny records. (a)
Appellate determinations under 31 CFR 1.5(h) with respect to records,
access to which has been denied by the Information Officer of the Bureau
of the Public Debt, will be made by the Commissioner, Bureau of the
Public Debt. Appeals made by mail should be addressed to: Freedom of
Information Appeal, Commissioner Bureau of the Public Debt, Department
of the Treasury, Washington, DC 20226.
Appeals may be delivered in person to the Office of the Information
Officer, Room 300, Washington Building, 1435 G Street NW., Washington,
DC.
(b) Appellate determinations under 31 CFR 1.5(h) with respect to
records, access to which has been denied by the Director of Public
Affairs, United States Savings Bond Division, will be made by the
National Director, United States Savings Bond Division. Requests made
by mail should be addressed to: Freedom of Information Appeal, National
Director, Department of the Treasury, Washington, DC 20226.
Requests may be delivered personally to the office of the Deputy
National Director, Room 317, 1111 20th Street NW., Washington, DC.
5. Delivery of process. Service of process will be received by the
Commissioner, Bureau of the Public Debt and shall be delivered to such
officer at the following location: Commissioner, Bureau of the Public
Debt, Room 300, Washington Bldg., 1435 G Street NW., Washington, DC
20226.
31 CFR 1.7 Appendix L -- Federal Law Enforcement Training Center
31 CFR 1.7 Pt. 1, Subpt. A, App. L
1. In general. This appendix applies to the Federal Law Enforcement
Training Center. It identifies the location of the public reading room
at which the following documents are available for public inspection and
copying: A description of the central and field offices; the
established places where the public may obtain information, decisions,
statements of the general course and method by which functions are
channeled and determined; rules of procedure, descriptions of forms and
where they may be obtained; substantive rules and statements of general
policy and interpretations adopted by the agency; and each amendment,
revision, or repeal of the foregoing; final adjudications of cases;
statements of policy and interpretations which have been adopted by the
agency and are not published in the Federal Register; administrative
staff manuals and instructions to staff that affect a member of the
public. In addition, the appendix identifies the officers designated to
make the initial and appellate deteminations to FOIA requests, the
officers designated to receive service of process, and the addresses for
delivery of requests, appeals and service of process.
2. Public reading room. The public reading room for the Federal Law
Enforcement Training Center is maintained at the following location:
Library, Building 262, Federal Law Enforcement Training Center, Glynco,
GA 31524.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records will be made by the
Director, Federal Law Enforcement Training Center. Requests made by
mail should be addressed to:
Freedom of Information Act Request, Freedom of Information Act
Officer, Federal Law Enforcement Training Center, Department of the
Treasury, Building 94, Glynco, GA 31524.
Requests may be delivered personally to the Library, Federal Law
Enforcement Training Center, Building 94, Glynco, GA.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the consolidated Federal Law Enforcement Training Center will be made by
the Assistant Secretary (Enforcement). Appeals may be mailed or
delivered in person to: Freedom of Information Appeal, Assistant
Secretary (Enforcement), Department of the Treasury, 1500 Pennsylvania
Avenue NW., Room 4312, Room 3448, Washington, DC 20220.
5. Delivery of process. Service of process will be received by the
General Counsel of the Department of the Treasury, or his delegate, and
shall be delivered to such officer at the following location: General
Counsel, Department of the Treasury, Room 3000, Main Treasury Building,
1500 Pennsylvania Avenue NW., Washington, DC 20220.
31 CFR 1.7 Appendix M -- Office of the Assistant Secretary for Tax Policy
31 CFR 1.7 Pt. 1, Subpt. A, App. M
1. In general. This appendix applies to the Office of the Assistant
Secretary for Tax Policy, including the Office of International Tax
Counsel, the Office of Tax Analysis, the Office of the Tax Legislative
Counsel, and generally the Office of Industrial Economics. It
identifies the location of the public reading room at which the
following documents are available for public inspection and copying: a
description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they
may be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process.
2. Public Reading Room. The public reading room for the Office of
the Assistant Secretary for Tax Policy is maintained at the following
location: Library, Room 5030, Main Treasury Building, 1500 Pennsylvania
Avenue NW., Washington, DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Office of the
Assistant Secretary for Tax Policy will be made by the Freedom of
Information Office, Office of Tax Legislative Counsel, or the Deputy Tax
Legislative Counsel, Room 3064, Main Treasury Building, Washington, DC
20220.
Requests for records may be mailed or delivered in person to:
Freedom of Information Act Request, Freedom of Information Officer,
Office of the Assistant Secretary (Tax Policy), Room 4028, Main Treasury
Building, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
4. Administrative appeal of initial determination to deny records.
The Assistant Secretary (Tax Policy) will make the determination on
appeals. Appeals from initial determinations to deny records may be
mailed or delivered in person to: Assistant Secretary for Tax Policy,
Department of the Treasury, Main Treasury Building, Room 3112, 1500
Pennsylvania Avenue NW., Washington, DC 20220.
5. Delivery of process. Service of process will be received by the
General Counsel of the Department of the Treasury, or his delegate, and
shall be delivered to such officer at the following location:
General Counsel, Department of the Treasury, Room 3000, Main Treasury
Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
31 CFR 1.7 Subpart B -- Other Disclosure Provisions
31 CFR 1.8 Scope.
The regulations in this subpart concern access to information and
records other than under 5 U.S.C. 552. This subpart is applicable only
to the Departmental Offices as defined in 1.1(a) of this part and the
United States Savings Bonds Division and the United States Secret
Service.
31 CFR 1.9 Records not to be otherwise withdrawn or disclosed.
Except in accordance with this part, or as otherwise authorized,
Treasury Department officers and employees are prohibited from making
records or duplicates available to any person, not an officer or
employee of the Department, and are prohibited from withdrawing any such
records or duplicates from the files, possession or control of the
Department.
31 CFR 1.10 Oral information.
(a) Officers and employees of the Department may, in response to
requests, provide orally information contained in records of the
Department which are determined to be available to the public. If the
obtaining of such information requires search of the records, a written
request and the payment of the fee for record search set forth in 1.6
will be required.
(b) Information with respect to activities of the Department not a
matter of record shall not be disclosed if the information involves
matters exempt from disclosure under 5 U.S.C. 552 or the regulations in
this part, or if the disclosure of such information would give the
person requesting the information advantages not accorded to other
citizens;
31 CFR 1.11 Testimony or the production of records in a court or other
proceeding.
(a) Treasury Department officers and employees are prohibited from
testifying or otherwise furnishing information obtained as a result of
their official capacities or in connection with the transaction of
public business, in compliance with a subpoena or other order or demand
of any court or other authority without the prior approval of an officer
authorized to determine the availability of records under these
regulations.
(b) Treasury Department officers and employees are prohibited from
furnishing any record in compliance with subpoenas duces tecum or other
order or demand of any court or other authority, without the prior
approval of an officer authorized to determine the availability of
records under the regulations in this part.
(c) In court cases in which the United States or the Treasury
Department is not a party, where the giving of testimony is desired, an
affidavit by the litigant or the litigant's attorney, setting forth the
information with respect to which the testimony of such officer or
employee is desired, must be submitted before permission to testify will
be granted. Permission to testify will, in all cases, be limited to the
information set forth in the affidavit or to such portions thereof as
may be deemed proper.
(d) Where approval to testify or to furnish records in compliance
with a subpoena, order or demand is not given the person to whom it is
directed shall, if possible, appear in court or before the other
authority and respectfully state his inability to comply in full with
the subpoena, order or demand, relying for his action upon this section.
31 CFR 1.12 Regulations not applicable to official request.
The regulations in this part shall not be applicable to official
requests of other governmental agencies or officers thereof acting in
their official capacities, unless it appears that granting a particular
request would be in violation of law or inimical to the public interest.
Cases of doubt should be referred for decision to the supervisory
official designated in 1.8.
31 CFR 1.12 Subpart C -- Privacy Act
31 CFR 1.20 Purpose and scope of regulations.
The regulations in this subpart are issued to implement the
provisions of the Privacy Act of 1974 (5 U.S.C. 552a). The regulations
apply to all records which are contained in systems of records
maintained by the Department of the Treasury and which are retrieved by
an individual's name or personal identifier. They do not relate to
those personnel records of Government employees, which are under the
jurisdiction of the Office of Personnel Management to the extent such
records are subject to regulations issued by such OPM. The regulations
apply to all components of the Department of the Treasury. Any
reference in this subpart to the Department or its officials, employees,
or records shall be deemed to refer also to the components or their
officials, employees, or records. The regulations set forth the
requirements applicable to Department of the Treasury employees
maintaining, collecting, using or disseminating records pertaining to
individuals. They also set forth the procedures by which individuals
may request notification of whether the Department of the Treasury
maintains or has disclosed a record pertaining to them or may seek
access to such records maintained in any nonexempt system of records,
request correction of such records, appeal any initial adverse
determination of any request for amendment, or may seek an accounting of
disclosures of such records. For the convenience of interested persons,
the components of the Department of the Treasury may reprint these
regulations in their entirety (less any appendices not applicable to the
component in question) in those titles of the Code of Federal
Regulations which normally contain regulations applicable to such
components. In connection with such republication, and at other
appropriate times, components may issue supplementary regulations
applicable only to the component in question, which are consistent with
these regulations. In the event of any actual or apparent
inconsistency, these Departmental regulations shall govern. Persons
interested in the records of a particular component should, therefore,
also consult the Code of Federal Regulations for any rules or
regulations promulgated specifically with respect to that component (see
Appendices to this subpart for cross references). The head of each
component is hereby also authorized to substitute other appropriate
officials for those designated and correct addresses specified in the
appendix to this subpart applicable to the component. The components of
the Department of the Treasury for the purposes of this subpart are:
(a) The Departmental Offices, which includes the offices of:
(1) The Secretary of the Treasury, including immediate staff;
(2) The Deputy Secretary of the Treasury, including immediate staff;
(3) The Under Secretary of the Treasury for Finance, including
immediate staff;
(4) The Fiscal Assistant Secretary, including immediate staff;
(5) The Assistant Secretary of the Treasury for Economic Policy and
all other offices reporting to such official, including immediate staff;
(6) The General Counsel and also the Legal Division, except legal
counsel to the components listed in paragraphs (a)(9) and (b) through
(l) of this section;
(7) The Assistant Secretary of the Treasury for International Affairs
and all offices reporting to such official, including immediate staff;
(8) The Treasurer of the United States, including immediate staff;
(9) The Assistant Secretary of the Treasury for Tax Policy, including
immediate staff and all offices reporting to such official;
(10) The Assistant Secretary of the Treasury for Management, and all
offices reporting to such official, including immediate staff;
(11) The Assistant Secretary of the Treasury for Domestic Finance and
all offices reporting to such official, including immediate staff;
(12) The Assistant Secretary of the Treasury for Legislative Affairs,
including immediate staff;
(13) The Assistant Secretary of the Treasury for Public Affairs and
Public Liaison, including immediate staff;
(14) The Assistant Secretary of the Treasury for Enforcement and all
offices reporting to such official, including immediate staff;
(15) The Special Assistant to the Secretary (National Security),
including immediate staff;
(16) The Inspector General and all offices reporting to such
official, including immediate office.
(b) The Bureau of Alcohol, Tobacco and Firearms;
(c) The Office of the Comptroller of the Currency;
(d) The United States Customs Service;
(e) The Bureau of Engraving and Printing;
(f) The Federal Law Enforcement Training Center;
(g) The Financial Management Service;
(h) The Internal Revenue Service;
(i) The United States Mint;
(j) The Bureau of the Public Debt;
(k) The United States Savings Bond Division;
(l) The United States Secret Service.
For purposes of this subpart, the office of the legal counsel for the
components listed in paragraphs (b), (c), (d), (e), (f), (g), (h), (i),
and (j) of this section are to be considered a part of such component.
Any office, which is now in existence or may hereafter be established,
which is not specifically listed or known to be a component of any of
those listed above, shall be deemed a part of the Departmental Offices
for the purpose of these regulations.
31 CFR 1.21 Definitions.
(a) The term agency means agency as defined in 5 U.S.C. 552(e);
(b) The term individual means a citizen of the United States or an
alien lawfully admitted for permanent residence;
(c) The term maintain includes maintain, collect, use, or
disseminate;
(d) The term record means any item, collection, or grouping of
information about an individual that is maintained by the Department of
the Treasury or component of the Department. This includes, but is not
limited to, the individual's education, financial transactions, medical
history, and criminal or employment history and that contains the name,
or an identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print or a
photograph;
(e) The term system of records means a group of any records under the
control of the Department of the Treasury or any component 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;
(f) The term statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or part in making any determination about an identifiable
individual, except as provided by 13 U.S.C. 8.
(g) The term routine use means the disclosure of a record that is
compatible with the purpose for which the record was collected;
(h) The term component means a bureau or office of the Department of
the Treasury as set forth in 1.20 and in the appendices to these
regulations. (See 5 U.S.C. 552a(a).)
(i) The term request for access means a request made pursuant to 5
U.S.C. 552a(d)(1).
(j) The term request for amendment means a request made pursuant to 5
U.S.C. 552a(d)(2).
(k) The term request for accounting means a request made pursuant to
5 U.S.C. 552a(c)(3).
31 CFR 1.22 Requirements relating to systems of records.
(a) In general. Subject to 5 U.S.C. 552a (j) and (k) and 1.23(c),
each component shall, in conformance with 5 U.S.C. 552a:
(1) Maintain in its records only such information about an individual
as is relevant and necessary to accomplish a purpose of the agency
required to be accomplished by the statute or by Executive order of the
President (See 5 U.S.C. 552a(e)(1)).
(2) Collect 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, and privileges
under Federal programs. (See 5 U.S.C. 552a(e)(2)).
(b) Requests for information from individuals. Subject to 5 U.S.C.
552a(j) and 1.23(c)(1), each component of the Treasury shall inform
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:
(1) The authority (whether granted by statute, or by Executive 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 which may be made of the information, as
published pursuant to 5 U.S.C. 552a(e)(4)(D); and
(4) The effects on such individual, if any, of not providing all or
any part of the requested information. (See 5 U.S.C. 552a(e)(3)).
(c) Report on new systems. Each component of the Treasury shall
provide adequate advance notice to Congress and the Office of Management
and Budget through the Disclosure Branch and Administration Section of
the Office of the General Counsel of any proposal to establish or alter
any system of records in order to permit an evaluation of the probable
or potential effect of such proposal on the privacy and other personal
or property rights of individuals or the disclosure of information
relating to such individuals, and its effect on the preservation of the
constitutional principles of federalism and separation of powers. (See
5 U.S.C. 552a(o)).
(d) Accurate and secure maintenance of records. Each component
shall:
(1) Subject to 5 U.S.C. 552a(j) and 1.23(c)(1), maintain all records
which are used in making any determination about any individual with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination (see
5 U.S.C. 552a(e)(5);
(2) Prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to 5 U.S.C. 552 (see 31 CFR part 1, subpart A), make reasonable efforts
to assure that such records are accurate, complete, timely, and relevant
for Department of the Treasury purposes (see 5 U.S.C. 552a(e)(6)) and
(3) Establish appropriate administrative, technical, and physical
safeguards to insure the security and confidentiality of records and to
protect against any anticipated threats or hazards to their security or
integrity which could result in substantial harm, embarrassment,
inconvenience, or unfairness to any individual on whom information is
maintained. (See 5 U.S.C. 552a(e)(10)).
(i) System managers, with the approval of the head of their offices
within a component, shall establish administrative and physical
controls, consistent with Department regulations, to insure the
protection of records systems from unauthorized access or disclosure and
from physical damage or destruction. The controls instituted shall be
proportional to the degree of sensitivity of the records but at a
minimum must insure that records other than those available to the
general public under the Freedom of Information Act (5 U.S.C. 552), are
protected from public view, that the area in which the records are
stored is supervised during all business hours and physically secure
during nonbusiness hours to prevent unauthorized personnel from
obtaining access to the records. Automated systems shall comply with
the security standards promulgated by the National Bureau of Standards.
(ii) System managers, with the approval of the head of their offices
within a component, shall adopt access restrictions to insure that only
those individuals within the agency who have a need to have access to
the records for the performance of their duties have access to them.
Procedures shall also be adopted to prevent accidental access to, or
dissemination of, records.
(e) Prohibition against maintenance of records concerning First
Amendment rights. No component shall maintain a record describing how
any individual exercises rights guaranteed by the First Amendment (e.g.
speech), unless the maintenance of such record is:
(1) Expressly authorized by statute, or
(2) Expressly authorized by the individual about whom the record is
maintained, or
(3) Pertinent to and within the scope of an authorized law
enforcement activity. (See 5 U.S.C. 552a (e)(7))
(f) Notification of disclosure under compulsory legal process.
Subject to 5 U.S.C. 552a(j) and 1.23(c)(1), when records concerning an
individual are subpoenaed by a Grand Jury, Court, or quasi-judicial
agency, or disclosed in accordance with an ex parte court order pursuant
to 26 U.S.C. 6103(i), the official served with the subpoena or court
order shall make reasonable efforts to assure that notice of any
disclosure is provided to the individual. Notice shall be provided
within five working days of making the records available under
compulsory legal process or, in the case of a Grand Jury subpoena or an
ex parte order, within five days of its becoming a matter of public
record. Notice shall be mailed to the last known address of the
individual and shall contain the following information: the date and
authority to which the subpoena is, or was returnable, or the date of
and court issuing the ex parte order, the name and number of the case or
proceeding, and the nature of the information sought and provided.
Notice of the issuance of a subpoena or an ex parte order is not
required if the system of records has been exempted from the notice
requirement of 5 U.S.C. 552a (e)(8) and this section, pursuant to 5
U.S.C. 552a (j) and 1.23 (c)(1), by a Notice of Exemption published in
the Federal Register. (See 5 U.S.C. 552a (e)(8)).
(g) Emergency disclosure. If information concerning an individual
has been disclosed to any person under compelling circumstances
affecting health or safety, the individual shall be notified at the last
known address within 5 days of the disclosure (excluding Saturdays,
Sundays, and legal public holidays). Notification shall include the
following information: The nature of the information disclosed, the
person or agency to whom it was disclosed, the date of disclosure, and
the compelling circumstances justifying the disclosure. Notification
shall be given by the officer who made or authorized the disclosure.
(See 5 U.S.C. 552a (b)(8)).
31 CFR 1.23 Publication in the Federal Register -- Notices of systems
of records, general exemptions, specific exemptions, review of all
systems.
(a) Notices of systems of records to be published in the Federal
Register. (1) The Department shall publish a notice of the existence
and character of all systems of records every 3 years in the Federal
Register. An annual notice of systems of records is required to be
published by the Office of the Federal Register in the publication
entitled ''Privacy Act Issuances'', as specified in 5 U.S.C. 552a(f).
(2) Minor changes to systems of records shall be published annually.
(See paragraph (d)(8) of this section)
(3) In addition, the Department shall publish in the Federal Register
upon establishment or revision a notice of the existence and character
of any new or revised systems of records. Unless otherwise instructed,
each notice shall include:
(i) The name and location of the system;
(ii) The categories of individuals on whom records are maintained in
the system;
(iii) The categories of records maintained in the system;
(iv) Each routine use of the records contained in the system,
including the categories of users and the purpose of such use;
(v) The policies and practices of the component regarding storage,
retrievability, access controls, retention, and disposal of the records;
(vi) The title and business address of the Treasury official who is
responsible for the system of records;
(vii) The procedures of the component whereby an individual can be
notified if the system of records contain a record pertaining to the
individual, including reasonable times, places, and identification
requirements.
(viii) The procedures of the component whereby an individual can be
notified on how to gain access to any record pertaining to such
individual that may be contained in the system of records, and how to
contest its content; and
(ix) The categories of sources of records in the system. (See 5
U.S.C. 552a(e)(4))
(b) Notice of new or modified routine uses to be published in the
Federal Register. At least 30 days prior to a new use or modification
of a routine use, as published under paragraph (a)(3)(iv) of this
section, each component shall publish in the Federal Register notice of
such new or modified use of the information in the system and provide an
opportunity for interested persons to submit written data, views, or
arguments to the components. (See 5 U.S.C. 552a(e)(11))
(c) Promulgation of rules exempting systems from certain requirements
-- (1) General exemptions. In accordance with existing procedures
applicable to a Treasury component's issuance of regulations, the head
of each such component may adopt rules, in accordance with the
requirements (including general notice) of 5 U.S.C. 553 (b) (1), (2),
and (3), (c) and (e), to exempt any system of records within the
component from any part of 5 U.S.C. 552a and these regulations except
subsections (b) (sec. 1.24, conditions of disclosure), (c)(1) (sec.
1.25, keep accurate accounting of disclosures), (c)(2) (sec. 1.25,
retain accounting for five years or life of record), (e)(4) (A) through
(F) (paragraph (a) of this section, publication of annual notice of
systems of records), (e)(6) (sec. 1.22(d), accuracy of records prior to
dissemination), (e)(7) (sec. 1.22(e), maintenance of records on First
Amendment rights), (e)(9) (sec. 1.28, establish rules of conduct),
(e)(10) (sec. 1.22(d)(3), establish safeguards for records), (e)(11)
(paragraph (c) of this section, publish new intended use), and (i) (sec.
1.28(c), criminal penalties) if the systems of records maintained by the
component which performs as its principal function any activity
pertaining to the enforcement of criminal laws, including police efforts
to prevent, control, or reduce crime or to apprehend criminals, and the
activities of prosecutors, courts, correctional, probation, pardon, or
parole authorities, and which consists of:
(i) 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;
(ii) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; or
(iii) 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. (See 5 U.S.C. 552a(j))
(2) Specific exemptions. In accordance with existing procedures
applicable to a Treasury component's issuance of regulations, the head
of each such component may adopt rules, in accordance with the
requirements (including general notice) of 5 U.S.C. 553 (b) (1), (2),
and (3), (c), and (e), to exempt any system of records within the
component from 5 U.S.C. 552a(c)(3) (sec. 1.25(c)(2), accounting of
certain disclosures available to the individual), (d) (sec. 1.26(a),
access to records), (e)(1) (sec. 1.22(a)(1), maintenance of information
to accomplish purposes authorized by statute or executive order only),
(e)(4)(G) (paragraph (a)(7) of this section, publication of procedures
for notification), (e)(4)(H) (paragraph (a)(8) of this section,
publication of procedures for access and contest), (e)(4)(I) (paragraph
(a)(9) of this section, publication of sources of records), and (f)
(sec. 1.26, promulgate rules for notification, access and contest), if
the system of records is:
(i) Subject to the provisions of 5 U.S.C. 552(b)(1);
(ii) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection (j)(2) of 5 U.S.C.
552a and paragraph (a)(1) of this section. If any individual is denied
any right, privilege, or benefit that such individual would otherwise be
entitled to by Federal law, or for which such individual would otherwise
be eligible, as a result of the maintenance of this material, such
material shall be provided to the individual, except to the extent that
the disclosure of the 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, under an implied promise that the identity of the
source would be held in confidence;
(iii) Maintained in connection with providing protective services to
the President of the United States or other individuals pursuant to 18
U.S.C. 3056;
(iv) Required by statute to be maintained and used solely as
statistical records;
(v) 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, under an implied promise that the identity of the source would be
held in confidence;
(vi) 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
(vii) 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 September 27,
1975, under an implied promise that the identity of the source would be
held in confidence.
(3) At the time that rules under this subsection are adopted, the
head of the component shall include in the statement required under 5
U.S.C. 553(c) the reasons why the system of records is to be exempted
from a provision of 5 U.S.C. 552a and this part. (See 5 U.S.C. 552a (j)
and (k))
(d) Review and report to OMB. The Department shall ensure that the
following reviews are conducted as often as specified below by each of
the components who shall be prepared to report to the Departmental
Disclosure Branch upon request the results of such reviews and any
corrective action taken to resolve problems uncovered. Each component
shall:
(1) Review every two years a random sample of the component's
contracts that provide for the maintenance of a system of records on
behalf of the component to accomplish a function of the component, in
order to ensure that the working of each contract makes the provisions
of the Act apply. (5 U.S.C. 552a(m)(1))
(2) Review annually component's recordkeeping and disposal policies
and practices in order to assure compliance with the Act.
(3) Review routine use disclosures every 3 years, that are associated
with each system of records in order to ensure that the recipient's use
of such records continues to be compatible with the purpose for which
the disclosing agency originally collected the information.
(4) Review every three years each system of records for which the
component has issued exemption rules pursuant to section (j) or (k) of
the Privacy Act in order to determine whether the exemption is needed.
(5) Review annually each ongoing matching program in which the
component has participated during the year, either as a source or as a
matching agency in order to assure that the requirements of the Act, the
OMB Matching Guidelines, and the OMB Model Control System and checklist
have been met.
(6) Review component's training practices annually to ensure that all
component personnel are familiar with the requirements of the Act, these
regulations and Departmental directives.
(7) Review annually the actions of component personnel that have
resulted either in the agency being found civilly liable under section
(g) of the Act, or an employee being found criminally liable under the
provisions of section (i) of the Act, in order to determine the extent
of the problem and to prevent future recurrences.
(8) Review annually each system of records notice to ensure that it
accurately describes the system. Where minor changes are needed,
publish an amended notice in the Federal Register. Minor changes shall
be consolidated in one annual comprehensive publication. The term
''minor change to a system of records'' means a change that does not
significantly change the system. More specifically, a minor change does
not affect the character or purpose of the system and does not affect
the ability of an individual to gain access to a record about the
individual or to any information pertaining to such individual which is
contained in the system; for example, changing the title of the system
manager or the location of the system.
31 CFR 1.24 Disclosure of records to person other than the individual
to whom they pertain.
(a) Conditions of disclosure. No component of Treasury shall
disclose any record which is contained in a system of records maintained
by it 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, or the parent,
if a minor, or legal guardian, if incompetent, of such individual,
unless disclosure of the record would be:
(1) To those offices and employees of the Department of the Treasury
who have a need for the record in the performance of their duties;
(2) Retired under 5 U.S.C. 552 (subpart A of this part);
(3) For a routine use as defined in 5 U.S.C. 552a(a)(7) and 1.21(g)
and as described under 5 U.S.C. 552a(e)(4)(D) and 1.23(a)(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 of the U.S. Code;
(5) To a recipient who has provided the component 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 United States Government, or for evaluation by the
Administrator of General Services or the designee of such official 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.
(i) If the activity is authorized by law; and
(ii) If the head of the agency or instrumentality has made a written
request to the Department of the Treasury specifying the particular
portion desired and the law enforcement activities 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 Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee.
(10) To the Comptroller General, or the authorized representatives of
such official, 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.
(See 5 U.S.C. 552a(b))
31 CFR 1.25 Accounting of disclosures.
(a) Accounting of certain disclosures. Each component, with respect
to each system of records under its control, shall:
(1) Keep an accurate accounting of: (i) The date, nature, and
purpose of each disclosure of a record to any person or to an agency
made under 5 U.S.C. 552a (b) and 1.24; and (ii) the name and address
of the person or agency to whom the disclosure is made;
(2) Retain the accounting made under paragraph (a)(1) 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; and
(3) Inform any person or other agency about any correction or
notation of dispute made by the constitutent unit in accordance with 5
U.S.C. 552a (d) and 1.28 of any record that has been disclosed to the
person or agency if an accounting of the disclosure was made. (See 5
U.S.C. 552(c).)
(b) Accounting systems. To permit the accounting required by
paragraph (a) of this section, system managers, with the approval of the
head of their offices within a component, shall establish or implement,
a system of accounting for all disclosures of records, either orally or
in writing, made outside the Department of the Treasury. Accounting
records shall:
(1) Be established in the least expensive and most convenient form
that will permit the system manager to advise individuals, promptly upon
request, what records concerning them have been disclosed and to whom:
(2) Provide, as a minimum, the identification of the particular
record disclosed, the name and address of the person or agency to whom
or to whom or to which disclosed, and the date, nature and purpose of
the disclosure; and
(3) Be maintained for 5 years or until the record is destroyed or
transferred to the National Archives and Records Service for storage in
records centers, in which event, the accounting pertaining to those
records, unless maintained separately, shall be transferred with the
records themselves.
(c) Exemptions from accounting requirements. No accounting is
required for disclosure of records:
(1) To those officers and employees of the Department of the Treasury
who have a need for the record in the performance of their duties; or
(2) If disclosure would be required under 5 U.S.C. 552 and Subpart A
of this part.
(d) Access to accounting by individual. (1) Subject to paragraphs
(c) and (d)(2) of this section, each component shall establish and set
forth in the appendix to this subpart applicable to the component,
procedures for making the accounting required under paragraph (a) of
this section available to the individual to whom the record pertains and
shall thereafter make such accounting available in accordance therewith
at the request of the individual. The procedures may require the
requester to provide reasonable identification.
(2) Access accountings of disclosure may be withheld from the
individual named in the record only if the disclosures were (i) made
under 5 U.S.C. 552a (b)(7) and 1.24 (a)(7), or (ii) under a system of
records exempted from the requirements of 5 U.S.C. 552a(c)(3) in
accordance with 5 U.S.C. 552 (j) or (k) and 1.23(c). (See 5 U.S.C.
552a(c))
31 CFR 1.26 Procedures for notification and access to records
pertaining to individuals -- format and fees for request for access.
(a) Procedures for notification and access. Each component shall
establish, in accordance with the requirements of 5 U.S.C. 553, and set
forth in the appendix to this subpart applicable to such component
procedures whereby an individual can be notified, in response to a
request, if any system of records named by the individual contains a
record pertaining to that individual. In addition, such procedures
shall set forth the requirements for access to such records. As a
minimum such procedures shall specify the times during, and the places
at which access will be accorded, together with such identification as
may be required of the individual before access. (See 5 U.S.C. 552a(f)
(1), (2) and (3))
(b) Access. Each component in accordance with the procedures
prescribed under paragraph (a) of this section, shall allow an
individual to gain access to records or to any information pertaining to
such individual which is contained in the system of records upon
request. The individual shall be permitted to review the record and
have a copy made of all or any portion of the record in a form that is
comprehensible. The individual will also be permitted to be accompanied
by any person of the individual's choosing to review the record, except
that the agency may require the individual to furnish a written
statement authorizing discussion of that individual's record in the
accompanying person's presence. (See 5 U.S.C. 552a(d)(1))
(c) Exceptions. Neither the procedures prescribed under paragraph
(a) of this section nor the requirements for access under paragraph (b)
of this section shall be applicable to -- (1) systems of records
exempted pursuant to 5 U.S.C. 552a (j) and (k) and 1.23(c); (2)
information compiled in reasonable anticipation of a civil action or
proceeding (See 5 U.S.C. 552(d)(5)); or (3) information pertaining to
an individual which is contained in, and inseparable from, another
individual's record.
(d) Format of request. (1) A record for notification of whether a
record exists shall:
(i) Be made in writing and signed by the person making the request,
who must be the individual about whom the record is maintained, or such
individual's duly authorized representative (See 1.34);
(ii) State that it is made pursuant to the Privacy Act, 5 U.S.C.
552a or these regulations, have marked ''Privacy Act Request'' on the
request and on the envelope;
(iii) Give the name of the system or subsystem or categories of
records to which access is sought, as specified in ''Privacy Act
Issuances'' published by the Office of the Federal Register and
referenced in the appendices to this subpart;
(iv) Describe the nature of the record(s) sought in sufficient detail
to enable Department personnel to locate the system of records
containing the record with a reasonable amount of effort. Whenever
possible, a request for access should describe the nature of the record
sought, the date of the record or the period in which the record was
compiled.
(v) Provide such identification of the requester as may be specified
in the appropriate appendix to this subpart; and
(vi) Be addressed or delivered in person to the office or officer of
the component indicated for the particular system or subsystem or
categories of records the individual wishes access to, as specified in
''Privacy Act Issuances'' published by the Office of the Federal
Register and referenced in the appendices to this subpart. Assistance
in ascertaining the appropriate component or in preparing a request for
notification may be obtained by a written request to this effect
addressed as specified in Appendix A of this part, as the address for
the Departmental Offices for ''Request for notification and access to
records and accountings of disclosures''.
(2) A request for access to records shall, in addition to complying
with paragraph (a)(1)(i) through (vi) of this section:
(i) State whether the requester wishes to inspect the records or
desires to have a copy made and furnished without first inspecting them;
(ii) If the requester desires to have a copy made, state the firm
agreement of the requester to pay the fees for duplication ultimately
determined in accordance with (31 CFR 1.6) Subpart A of this title,
unless such fees are waived pursuant to that section by the system
manager or other appropriate official as indicated in the appropriate
appendix to these regulations; and
(iii) Comply with any other requirement set forth in the applicable
appendix to this subpart or the ''Notice of Records Systems'' applicable
to the system in question. Requesters are hereby advised that any
request for access which does not comply with the foregoing requirements
and those set forth elsewhere in this Subpart C, will not be deemed
subject to the time constraints of this section, unless and until
amended so as to comply. However, components shall advise the requester
in what respect the request is deficient so that it may be processed.
This section applies only to records which are contained in a system of
records and which are in the possession or control of the component.
(See 5 U.S.C. 552a (d) and (f))
(e) Requests for records not in control of component. (1) Treasury
employees shall make reasonable efforts to assist an oral requester to
ascertain to which office or officer a written request should be sent.
When the request is for a record which is not in the possession or
control of any component of the Department of the Treasury, the
requester shall be so advised.
(2) Where the record requested was created by a Department or agency
other than the Department of the Treasury or a component of the
Department and has been classified (e.g. National Defense or
Intelligence Information) or otherwise restrictively endorsed (e.g.
Office of Personnel Management records of FBI reports) by such other
Department or agency, and a copy is in the possession of a component of
the Department of the Treasury, that portion of the request shall be
referred to the originating agency for determination as to all issues in
accordance with the Privacy Act. In the case of a referral to another
agency under this paragraph, the requester shall be notified that such
portion of the request has been so referred and that the requester may
expect to hear from that agency.
(3) When information sought from a system manager or other
appropriate official in the Department of the Treasury includes
information furnished by other Federal agencies not classified or
otherwise restrictively endorsed, the system manager or other
appropriate official receiving the request shall consult with the
appropriate agency prior to making a decision to disclose or not to
disclose the record. The decision as to whether the record shall be
disclosed shall be made, in the first instance by the system manager or
other appropriate official maintaining the record. (See 5 U.S.C. 552a
(d) and (f))
(f) Date of receipt of request. A request for notification or access
to records shall be considered to have been received for purposes of
this subpart on the date on which the requirements of paragraph (d) of
this section have been satisfied. Requests for notification or access
to records and any separate agreement to pay shall be stamped or
endorsed with the date of receipt by the receiving office. The latest
of such stamped dates will be deemed to be the date of receipt of the
request for the purposes of this subpart. (See 5 U.S.C. 552a (d) and
(f))
(g) Notification of determination -- (1) In general. Notification of
determinations as to notification of whether a record exists or as to
whether to grant access to records requested will be made by the
officers designated in the appendices to this subpart. The notification
of the determination shall be mailed within 30 days (excluding
Saturdays, Sundays and legal public holidays) after the date of receipt
of the request, as determined in accordance with paragraph (f) of this
section. If it is not possible to respond within 30 days, the
designated officer shall inform the requester, stating the reason for
the delay (e.g. volume of records requested, scattered location of the
records, need to consult other agencies, or the difficulty of the legal
issues involved) and when a response will be dispatched. (See 5 U.S.C.
552a (d) and (f))
(2) Granting of access. When it has been determined that the request
for access will be granted -- (i) and a copy requested; such copy in a
form comprehensible to the requester shall be furnished promptly,
together with a statement of the applicable fees for duplication; and
(ii) and the right to inspect has been requested, the requester shall be
promptly notified in writing of the determination, and when and where
the requested records may be inspected. An individual seeking to
inspect such records may be accompanied by another person of such
individual's choosing. The individual seeking access shall be required
to sign the required form indicating that the Department of the Treasury
is authorized to discuss the contents of the subject record in the
accompanying person's presence. If, after making the inspection, the
individual making the request desires a copy of all or a portion of the
requested records, such copy in a form comprehensible to the individual
shall be furnished upon payment of the applicable fees for duplication.
Fees to be charged are as prescribed by 31 CFR part 1, Subpart A, 1.6
Fees shall not be charged where they would amount, in the aggregate, to
less than $3.00. (See 5 U.S.C. 552a (d) and (f))
(3) Requirements for access to medical records. When access is
requested to medical records, including psychological records, the
responsible official may determine that such release could have an
adverse effect on the individual and that release will be made only to a
physician authorized in writing to have access to such records by the
individual making the request. Upon receipt of the authorization the
physician will be permitted to review the records or to receive copies
of the records by mail, upon proper verification of identity. (See 5
U.S.C. 552a (f) (3))
(4) Denial of request. When it is determined that the request for
notification of whether a record exists or access to records will be
denied (whether in whole or part or subject to conditions or
exceptions), the person making the request shall be so notified by mail
in accordance with paragraph (g)(1) of this section. The letter of
notification shall specify the city or other location where the
requested records are situated (if known), contain a statement of the
reasons for not granting the request as made, set forth the name and
title or position of the responsible official and advise the individual
making the request of the right to file suit in accordance with 5 U.S.C.
552a (g)(1)(B).
(5) Prohibition against the use of 5 U.S.C. 552 (b) exemptions.
Exemptions from disclosure under 5 U.S.C. 552 (b) (31 CFR part 1,
Subpart A, 1.2 (c)), may not be invoked for the purpose of withholding
from an individual any record which is otherwise accessible to such
individual under the Privacy Act, 5 U.S.C. 552a and this subpart. (See
5 U.S.C. 552a (q))
(6) Records exempt in whole or in part. (i) When an individual
requests notification as to whether a record exists or access to records
concerning the individual which have been exempted from individual
access pursuant to 5 U.S.C. 552a (j) or which have been compiled in
reasonable anticipation of a civil action or proceeding in either a
court or before an administrative tribunal and the assertion of the
exemption is deemed necessary, the Department of the Treasury will
neither confirm nor deny the existence of the record but shall advise
the individual only that no record available to the individual pursuant
to the Privacy Act of 1974 has been identified.
(ii) Requests from individuals for access to records which have been
exempted from access pursuant to 5 U.S.C. 552a (k) shall be processed as
follows:
(A) Requests for information classified pursuant to Executive Order
11652 require the responsible component of the Department to review the
information to determine whether it continues to warrant classification
under the criteria of sections 1 and 5 (B), (C), (D) and (E) of the
Executive order. Information which no longer warrants classification
under these criteria shall be declassified and made available to the
individual. If the information continues to warrant classification, the
individual shall be advised that the information sought is classified,
that it has been reviewed and continues to warrant classification, and
that it has been exempted from access pursuant to 5 U.S.C. 552 (b)(1)
and 5 U.S.C. 552a (k)(1). Information which has been exempted pursuant
to 5 U.S.C. 552a (j) and which is also classified shall be reviewed as
required by this paragraph but the response to the individual shall be
in the form prescribed by paragraph (g)(6)(i) of this section.
(B) Requests for information which has been exempted from disclosure
pursuant to 5 U.S.C. 552a (k)(2) shall be responded to in the manner
provided in paragraph (g)(6)(i) of this section unless the requester
shows that the information has been used or is being used to deny the
individual any right, privilege or benefit for which he is eligible or
to which he would otherwise be entitled under federal law. In that
event, the individual shall be advised of the existence of the
information but such information as would identify a confidential source
shall be extracted or summarized in a manner which protects the source
to the maximum degree possible and the summary extract shall be provided
to the requesting individual.
(C) Information compiled as part of an employee background
investigation which has been exempted pursuant to 5 U.S.C. 552a (k)(5)
shall be made available to an individual upon request except to the
extent that it identifies the confidential source. Material identifying
the confidential sources shall be extracted or summarized in a manner
which protects the source to the maximum degree possible and the summary
or extract shall be provided to the requesting individual.
(D) Testing or examination material which has been exempted pursuant
to 5 U.S.C. 552a (k)(6) shall not be made available to an individual if
disclosure would compromise the objectivity or fairness of the testing
or examination process; but may be made available if no such compromise
possibility exists. (See 5 U.S.C. 552a (d)(5), (j) and (k)).
31 CFR 1.27 Procedures for amendment of records pertaining to
individuals -- format, agency review and appeal from initial adverse
agency determination.
(a) In general. Subject to the application of exemptions promulgated
by the head of each component, in accordance with 1.23(c), and subject
to 1.27(f), each component of the Department of the Treasury, shall in
conformance with 5 U.S.C. 552a(d)(2), permit an individual to request
amendment of a record pertaining to such individual. Any request for
amendment of records or any appeal that does not fully comply with the
requirements of this section and any additional specific requirements
imposed by the component in the applicable appendix to this subpart will
not be deemed subject to the time constraints of paragraph (e) of this
section, unless and until amended so as to comply. However, components
shall advise the requester in what respect the request or appeal is
deficient so that it may be resubmitted or amended. (See 5 U.S.C. 552a
(d) and (f))
(b) Form of request to amend records. In order to be subject to the
provisions of this section, a request to amend records shall:
(1) Be made in writing and signed by the person making the request,
who must be the individual about whom the record is maintained, or the
duly authorized representative of such individual;
(2) State that it is made pursuant to the Privacy Act, 5 U.S.C. 552a
or these regulations, have marked ''Privacy Act Amendment Request'' on
the request and on the envelope;
(3) Be addressed to the office or officer of the component specified
for such purposes in ''Privacy Act Issuances'' published by the Office
of the Federal Register and referenced in the appendices to this subpart
for that purpose; and
(4) Reasonably describe the records which the individual desires to
have amended, including, to the best of the requester's knowledge, dates
of letters requesting access to such records previously and dates of
letters in which notification concerning access was made, if any, and
the individual's documentation justifying the correction. (See U.S.C.
552a (d) and (f))
(c) Date of receipt of request. A request for amendment of records
pertaining to an individual shall be deemed to have been received for
purposes of this subpart when the requirements of paragraph (b) of this
section have been satisfied. The receiving office or officer shall
stamp or otherwise endorse the date of receipt of the request. (See 5
U.S.C. 552a (d) and (f))
(d) Review of requests to amend records. Officials responsible for
review of requests to amend records pertaining to an individual, as
specified in the appropriate appendix to this subpart, shall:
(1) Not later than 10 days (excluding Saturdays, Sundays, and legal
public holidays) after the date of receipt of such request, acknowledge
in writing such receipt; and
(2) Promptly, either -- (i) Make any correction of any portion which
the individual believes and the official agrees is not accurate,
relevant, timely, or complete; or
(ii) Inform the individual of the refusal to amend the record in
accordance with the individual's request, the reason for the refusal,
and the name and business address of the officer designated in the
applicable appendix to this subpart, as the person who is to review such
refusal. (See 5 U.S.C. 552a (d) and (f))
(e) Administrative appeal -- (1) In general. Each component shall
permit individuals to request a review of initial decisions made under
paragraph (d) of this section, when an individual disagrees with a
refusal to amend this record. (See 5 U.S.C. 552a (d), (f), and (g)(1))
(2) Form of request for administrative review of refusal to amend
record. At any time within 35 days after the date of the notification
of the initial decision described in paragraph (d)(2)(ii) of this
section, the requester may submit an administrative appeal from such
refusal to the official specified in the notification of the initial
decision and the appropriate appendix to this subpart. The appeal
shall:
(i) Be made in writing stating any arguments in support thereof and
be signed by the person to whom the record pertains, or the duly
authorized representative of such official;
(ii) Be addressed to and mailed or hand delivered within 35 days of
the date of the initial decision, to the office or officer specified in
the appropriate appendix to this subpart and in the notification. (See
the appendices to this subpart for the address to which appeals made by
mail should be addressed);
(iii) Have clearly marked on the appeal and on the envelope,
''Privacy Act Amendment Appeal'';
(iv) Reasonably describe the records requested to be amended; and
(v) Specify the date of the initial request, to amend records, and
the date of the letter giving notification that the request was denied.
(See 5 U.S.C. 552a (d) and (f))
(3) Date of receipt. Appeals shall be promptly stamped with the date
of their receipt by the office to which addressed and such stamped date
will be deemed to be the date of receipt for all purposes of this
subpart. The receipt of the appeal shall be acknowledged within 10 days
(excluding Saturdays, Sundays, and legal public holidays) from the date
of the receipt (unless the determination on appeal is dispatched in 10
days, in which case, no acknowledgement is required) by the responsible
official and the requester advised of the date of receipt established by
the foregoing and when a response is due in accordance with this
paragraph. (See 5 U.S.C. 552a (d) and (f))
(4) Review of administrative appeals from denial of requests to amend
records. Officials responsible for deciding administrative appeals from
denials of requests to amend records pertaining to an individual, as
specified in the appendices to this subpart shall: Complete the review,
and notify the requester of the final agency decision within 30 days
(exclusive of Saturdays, Sundays and legal public holidays) after the
date of receipt of such appeal, unless the time is extended by the head
of the agency or the delegate of such official, for good cause shown.
If such final agency decision is to refuse to amend the record, in whole
or in part, the requester shall also be advised of the right -- (i) to
file a concise ''Statement of Disagreement'' setting forth the reasons
for his disagreement with the decision which shall be filed within 35
days of the date of the notification of the final agency decision and
(ii) to judicial review of the final agency decision under 5 U.S.C.
552a(g)(1)(A). (See 5 U.S.C. 552a (d), (f) and (g)(1))
(5) Notation on record and distribution of statements of
disagreement. The system manager is responsible, in any disclosure
containing information about which an individual has filed a ''Statement
of Disagreement'', occurring after the filing of the statement under
paragraph (e)(4) of this section, for clearly noting any portion of the
record which is disputed and providing copies of the statement and, if
deemed appropriate, a concise statement of the component's reasons for
not making the amendments requested to persons or other agencies to whom
the disputed record has been disclosed. (See 5 U.S.C. 552a(d)(4))
(f) Records not subject to correction under the Privacy Act. The
following records are not subject to correction or amendment by
individuals:
(1) Transcripts or written statements made under oath; and
(2) Transcripts of Grand Jury proceedings, judicial or quasi-judicial
proceedings which form the official record of those proceedings; and
(3) Pre-sentence reports comprising the property of the courts but
maintained in agency files; and
(4) Records pertaining to the determination, the collection and the
payment of the Federal taxes; and
(5) Records duly exempted from correction by notice published in the
Federal Register; and
(6) Records compiled in reasonable anticipation of a civil action or
proceeding.
31 CFR 1.28 Training, rules of conduct, penalties for non-compliance.
(a) Training. Subject to policy guidance and regulations issued by
the Deputy Secretary, who has Departmentwide responsibility therefor,
each component shall institute a training program to instruct employees
and employees of Government contractors covered by 5 U.S.C. 552a(m), who
are involved in the design, development, operation or maintenance of any
system of records, on a continuing basis with respect to the duties and
responsibilities imposed on them and the rights conferred on individuals
by the Privacy Act, the regulations in this subpart, including the
appendices thereto, and any other related regulations. Such training
shall provide suitable emphasis on the civil and criminal penalties
imposed on the Department and the individual employees by the Privacy
Act for non-compliance with specified requirements of the Act as
implemented by the regulations in this subpart. (See 5 U.S.C.
552a(e)(9))
(b) Rules of conduct. In addition, to the Standards of Conduct
published in part O of this title, particularly 31 CFR 0.735-44, the
following are applicable to employees of the Department of the Treasury
(including, to the extent required by the contract or 5 U.S.C. 552a(m),
Government contractors and employees of such contractors), who are
involved in the design, development, operation or maintenance of any
system of records, or in maintaining any records, for or on behalf of
the Department, including any component thereof.
(1) The head of each office of a component of the Department shall be
responsible for assuring that employees subject to such official's
supervision are advised of the provisions of the Privacy Act, including
the criminal penalties and civil liabilities provided therein, and the
regulations in this subpart, and that such employees are made aware of
their individual and collective responsibilities to protect the security
of personal information, to assure its accuracy, relevance, timeliness
and completeness, to avoid unauthorized disclosure either orally or in
writing, and to insure that no information system concerning
individuals, no matter how small or specialized is maintained without
public notice.
(2) Employees of the Department of the Treasury involved in the
design, development, operation, or maintenance of any system of records,
or in maintaining any record shall:
(i) Collect no information of a personal nature from individuals
unless authorized to collect it to achieve a function or carry out a
responsibility of the Department;
(ii) Collect from individuals only that information which is
necessary to Department functions or responsibilities, unless related to
a system exempted under 5 U.S.C. 552a (j) or (k):
(iii) Collect information, wherever possible, directly from the
individual to whom it relates, unless related to a system exempted under
5 U.S.C. 552a(j);
(iv) Inform individuals from whom information is collected about
themselves of the authority for collection, the purposes thereof, the
use that will be made of the information, and the effects, both legal
and practical, of not furnishing the information. (While this provision
does not explicitly require it, where feasible, third party sources
should be informed of the purposes for which information they are asked
to provide will be used.);
(v) Neither collect, maintain, use nor disseminate information
concerning an individual's religious or political beliefs or activities
or membership in associations or organizations, unless (A) the
individual has volunteered such information for the individual's own
benefits; (B) the information is expressly authorized by statute to be
collected, maintained, used or disseminated; or (C) the activities
involved are pertinent to and within the scope of an authorized
investigation, adjudication or correctional activity;
(vi) Advise their supervisors of the existence or contemplated
development of any record system which is capable of retrieving
information about individuals by individual identifier;
(vii) Disseminate no information concerning individuals outside the
Department except when authorized by 5 U.S.C. 552a or pursuant to a
routine use published in the Federal Register;
(viii) Assure that an accounting is kept in the prescribed form, of
all dissemination of personal information outside the Department,
whether made orally or in writing, unless disclosed under 5 U.S.C. 552
and subpart A of this part;
(ix) Maintain and process information concerning individuals with
care in order to insure that no inadvertent disclosure of the
information is made either within or without the Department; and
(x) Assure that the proper Department authorities are aware of any
information in a system maintained by the Department which is not
authorized to be maintained under the provisions of the Privacy Act of
1974, including information on First Amendment Activities, information
that is inaccurate, irrelevant or so incomplete as to risk unfairness to
the individual concerned.
(3) Heads of components within the Department or their delegates
shall, at least annually, review the record systems subject to their
supervision to insure compliance with the provisions of the Privacy Act
of 1974 and the regulations in this subpart. (See 5 U.S.C. 552a (e)(9),
(i) and (m))
(c) Criminal penalties. (1) The Privacy Act imposes criminal
penalties on the conduct of Government officers or employees as follows:
Any officer or employee of an agency (which term includes the
Department of the Treasury):
(i) Who by virtue of the official's 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 section (5 U.S.C. 552a) or regulations established
thereunder, 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, or
(ii) Who willfully maintains a system of records without meeting the
notice requirements of paragraph (e)(4) of this section (5 U.S.C. 552a)
-- shall be guilty of a misdemeanor and fined not more than $5,000.
(2) The Act also imposes a collateral criminal penalty on the conduct
of any person as follows:
''Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000.''
(3) For the purposes of 5 U.S.C. 552a (i), the provisions of
paragraph (c)(1) of this section are applicable to Government
contractors and employees of such contractors who by contract, operate
by or on behalf of the Department of the Treasury a system of records to
accomplish a Departmental function. Such contractor and employees are
considered employees of the Department of the Treasury for the purposes
of 5 U.S.C. 552a(i). (See 5 U.S.C. 552a (i) and (m).)
31 CFR 1.29 Records transferred to Federal Records Center or National
Archives of the United States.
(a) Records transferred to the Administrator of General Services for
storage in the Federal Records Center. Records pertaining to an
identifiable individual which are transferred to the Federal Records
Center in accordance with 44 U.S.C. 3103 shall, for the purposes of the
Privacy Act, 5 U.S.C. 552a, be considered to be maintained by the
component which deposited the record and shall be subject to the
provisions of the Privacy Act and this subpart. The Administrator of
General Services shall not disclose such records except to the
Department of the Treasury or to others under rules consistent with the
Privacy Act which may be established by the Department of the Treasury
or a component. If such records are retrieved for the purpose of making
a determination about an individual, they must be reviewed for accuracy,
relevance, timeliness, and completeness.
(b) Records transferred to the National Archives of the United
States. (1) Records transferred to National Archives prior to September
27, 1975. Records pertaining to an identifiable individual transferred
to the National Archives prior to September 27, 1975, as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government shall be considered to be
maintained by the National Archives, and
(i) Shall not be subject to 5 U.S.C. 552a,
(ii) Except, that a statement describing such records (modeled after
5 U.S.C. 552a (e)(4) (A) through (G)) shall be published in the Federal
Register.
(2) Records transferred to National Archives on or after September
27, 1975. Records pertaining to an identifiable individual transferred
to the National Archives as a record which has sufficient historical or
other value to warrant its continued preservation by the United States
Government, on or after September 27, 1975, shall be considered to be
maintained by the National Archives, and
(i) Shall not be subject to 5 U.S.C. 552a,
(ii) Except, that a statement describing such records in accordance
with 5 U.S.C. 552a (e)(4) (A) through (G) shall be published in the
Federal Register and rules of conduct and training in accordance with 5
U.S.C. 552 (e) (9) are to be established by the National Archives. (See
5 U.S.C. 552a (e))
31 CFR 1.30 Application to system of records maintained by Government
contractors.
When a component contracts for the operation of a system of records,
to accomplish a Departmental function, the provisions of the Privacy
Act, 5 U.S.C. 552a, and this subpart shall be applicable to such system.
The component shall have responsibility for insuring that the
contractor complies with the contract requirements relating to privacy.
31 CFR 1.31 Sale or rental of mailing lists.
(a) In general. An individual's name and address shall not be sold
or rented by a component unless such action is specifically authorized
by law.
(b) Withholding of names and addresses. This section shall not be
construed to require the withholding of names and addresses otherwise
permitted to be made public. (See 5 U.S.C. 552a (n)).
31 CFR 1.32 Use and disclosure of social security numbers.
(a) In general. An individual shall not be denied any right,
benefit, or privilege provided by law by a component because of such
individual's refusal to disclose his social security number.
(b) Exceptions. The provisions of paragraph (a) of this section
shall not apply with respect to:
(1) Any disclosure which is required by Federal statute, or
(2) The disclosure of a social security number to any Federal, State,
or local agency maintaining a system of records in existence and
operating before January 1, 1975, if such disclosure was required under
statute or regulation adopted prior to such date to verify the identity
of an individual.
(c) Requests for disclosure of social security number. Any component
which requests an individual to disclose his or her social security
account number shall inform that individual whether:
(1) Disclosure is mandatory or voluntary.
(2) By what statutory or other authority such number is solicited,
and
(3) What uses will be made of it. (See section 7 of the Privacy Act
of 1974 set forth at 5 U.S.C. 552a, note.)
31 CFR 1.34 Guardianship.
The parent or guardian of a minor or a person judicially determined
to be incompetent shall, in addition to establishing the identity of the
minor or other person represented, establish parentage or guardianship
by furnishing a copy of a birth certificate showing parentage or a court
order establishing the guardianship and may thereafter, act on behalf of
such individual. (See 5 U.S.C. 552a (h))
31 CFR 1.35 Information forms.
(a) Review of forms. Except for forms developed and used by
constituent units, the Deputy Assistant Secretary for Administration
shall be responsible for reviewing all forms developed and used by the
Department of the Treasury to collect information from and about
individuals. The heads of components shall each be responsible for the
review of forms used by such component to collect information from and
about individuals.
(b) Scope of review. The responsible officers shall review each form
for the purpose of eliminating any requirement for information that is
not relevant and necessary to carry out an agency function and to
accomplish the following objectives;
(1) To insure that no information concerning religion, political
beliefs or activities, association memberships (other than those
required for a professional license), or the exercise of First Amendment
rights is required to be disclosed unless such requirement of disclosure
is expressly authorized by statute or is pertinent to, and within the
scope of, any authorized law enforcement activity;
(2) To insure that the form or a separate form that can be retained
by the individual makes clear to the individual which information he is
required by law to disclose and the authority for that requirement and
which information is voluntary;
(3) To insure that the form or a separate form that can be retained
by the individual states clearly the principal purpose or purposes for
which the information is being collected, and summarizes concisely the
routine uses that will be made of the information;
(4) To insure that the form or a separate form that can be retained
by the individual clearly indicates to the individual the effect in
terms of rights, benefits or privileges of not providing all or part of
the requested information; and
(5) To insure that any form requesting disclosure of a Social
Security Number, or a separate form that can be retained by the
individual, clearly advises the individual of the statute or regulation
requiring disclosure of the number or clearly advises the individual
that disclosure is voluntary and that no consequence will follow from
the refusal to disclose it, and the uses that will be made of the number
whether disclosed mandatorily and voluntarily.
(c) Revision of forms. Any form which does not meet the objectives
specified in the Privacy Act and in this section, shall be revised to
conform thereto. A separate statement may be used in instances when a
form does not conform. This statement will accompany a form and shall
include all the information necessary to accomplish the objectives
specified in the Privacy Act and this section.
31 CFR 1.36 Systems exempt in whole or in part from provisions of 5
U.S.C. 552a and this part.
In accordance with 5 U.S.C. 552a (j) and (k) and 1.23(c),
constituent units of the Department of the Treasury exempt the following
systems of records from certain provisions of the Privacy Act for the
reasons indicated:
(a) In general. The General Counsel of the Treasury exempts the
system of records entitled ''Treasury Interagency Automated Litigation
System (TRIALS)'' from the provisions of subsections (c)(3), (d),
(e)(1), (e)(4)(G), (H) and (I), and (f) of 5 U.S.C. 552a. The manual
part of this system of records contains information or documents
relating to litigation or administrative proceedings involving or
concerning the Department or its officials, and includes pending, active
and closed files. The manual records consist of copies of pleadings,
investigative reports, information compiled in reasonable anticipation
of a civil action or proceeding, legal memoranda, and related
correspondence. Pleadings which have been filed with a court or
administrative tribunal are matters of public record and no exemption is
claimed as to them. The computerized part of the system contains
summary data on Treasury Department non-tax litigation and
administrative proceedings, e.g., plaintiff, defendant, attorney,
witness, judge and/or hearing officer names, type of case, relief
sought, date, docket number, pertinent dates, and issues. The purpose
of the exemptions is to maintain the confidentiality of investigatory
materials compiled for law enforcement purposes; information compiled
in reasonable anticipation of a civil action a proceeding is exempt from
access under section (d)(5) until the file is closed; thereafter
section (k)(2) may apply in part to the information. Legal memorandum
and related correspondence contain no personal information and are not
subject to disclosure under section 552a. Determinations concerning
whether particular information contained in this system is exempt from
disclosure will be made at the time a request is received from an
individual to gain access to information pertaining to him.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552a(k), and
pursuant to the authority vested in the General Counsel by 31 CFR
1.23(c).
(c) Name of system. Treasury Interagency Automated Litigation System
(TRIALS).
(d) Provisions from which exempted. This system contains records
described in 5 U.S.C. 552a(k), the Privacy Act of 1974. Exemption will
be claimed for such records only where appropriate from the following
provisions, subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I),
and (f) of 5 U.S.C. 552a.
(e) Reasons for claimed exemptions. Those sections would otherwise
require the Department to notify an individual of investigatory
materials maintained in a record pertaining to him, permit access to
such record, permit requests for its correction (section 552a(d),
(e)(4)(G), (H), and (f)); make available to him any required accounting
of disclosures made of the record (section 552a(c)(3)), publish the
sources of records in the system (section 552a(e)(4)(I)); and screen
records to insure that there is maintained only such information about
an individual as is relevant to accomplish a required purpose of the
Department (section 552a(e)(1)). The records compiled for the
prosecution or defense of civil litigation on behalf of the Department
or its officials contain investigatory materials compiled for litigation
purposes, together with memoranda concerning the applicable law, and
related correspondence. The use of investigatory material in court
proceedings is governed by due process and statutory procedural
requirements. Informing individuals that they are on record in a
particular system enables such individuals to learn the nature of the
investigatory material and the evidentiary basis for prosecuting or
defending legal proceedings to which they are a party; furthermore, the
disclosure of certain investigatory material compiled for law
enforcement purposes may disclose investigative techniques and
procedures so that future law enforcement efforts would be hindered.
Access to an accounting of disclosures of such records would have a
similar detrimental effort upon the successful prosecution of legal
claims. In addition, screening for relevancy to Department purposes,
and correction or attempted correction of such materials could require
excessive amounts of time and effort on the part of all concerned.
Accordingly, the General Counsel finds that the public interest and
public policy in maintaining an effective legal services program
requires exemption from the stated sections of the Act to the extent
that they are applicable to appropriate materials in this system.
(a) In general. The Office of the Inspector General, Department of
the Treasury exempts the system of records entitled, ''General
Allegations and Investigative Records'' from certain provisions of the
Privacy Act of 1974. The purpose of the exemption is to maintain
confidentiality of data obtained from various sources that may
ultimately accomplish a statutory or executively ordered purpose.
(b) Authority: The authority to issue exemptions is vested in the
Office of the Inspector General, as a constituent unit of the Treasury
Department by 31 CFR 1.20.
(c) Exemptions under 5 U.S.C. 552a(j)(2): (1) Under 5 U.S.C.
552a(j)(2), the head of any agency may exempt any system of records
within the agency from certain provisions of the Privacy Act of 1974, if
the agency or component that maintains the system performs as its
principal function any activities pertaining to the enforcement of
criminal laws. The Office of the Inspector General is authorized under
Treasury Department Order No. 256 to initiate, organize, direct, and
control investigations of any allegations of illegal acts, violations,
and any other misconduct, concerning any official or employee of any
Treasury Office or Bureau.
(2) To the extent that the exemption under 5 U.S.C. 552a(j)(2) does
not apply to the above named system of records, then the exemption under
5 U.S.C. 552a(k)(2) relating to investigatory material compiled for law
enforcement purposes is claimed for this system.
(3) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(j)(2) are as follows:
5 U.S.C. 552a(c)(3) and (4)
5 U.S.C. 552a(d)(1), (2), (3), (4)
5 U.S.C. 552a(e)(1)(2) and (3)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(e)(5) and (8)
5 U.S.C. 552a(f)
5 U.S.C. 552a(g)
(d) Exemptions under 5 U.S.C. 552a(k)(2): (1) Under 5 U.S.C.
552a(k)(2), the head of any agency may exempt any system of records
within the agency from certain provisions of the Privacy Act of 1974 if
the system is investigatory material compiled for law enforcement
purposes.
(2) To the extent that information contained in the above named
system has as its principal purpose the enforcement of criminal laws,
the exemption for such information under 5 U.S.C. 552a(j)(2) is claimed.
(3) Provisions of the Privacy Act of 1974 from which exemptions are
claimed under 5 U.S.C. 552a(k)(2) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d)(1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(f)
(e) Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2): (1)
5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and
purpose of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of an
investigation to the existence of the investigation and that such
persons are subjects of that investigation. Since release of such
information to subjects of an investigation would provide the subjects
with significant information concerning the nature of the investigation,
it could result in the altering or destruction of documentary evidence,
improper influencing of witnesses, and other activities that could
impede or compromise the investigation.
(2) 5 U.S.C. 552a(c)(4), (d)(1), (2), (3), and (4), (e)(4)(G) and
(H), (f) and (g) relate to an individual's right to be notified of the
existence of records pertaining to such individual; requirements for
identifying an individual who requests access to records; the agency
procedures relating to access to records and the contest of information
contained in such records; and the civil remedies available to the
individual in the event of adverse determinations by an agency
concerning access to or amendment of information contained in record
systems. This system is exempt from the foregoing provisions for the
following reasons: To notify an individual at the individual's request
of the existence of records in an investigative file pertaining to such
individual or to grant access to an investigative file could interfere
with investigative and enforcement proceedings; co-defendants of a
right to a fair trial; constitute an unwarranted invasion of the
personal privacy of others, disclose the identity of confidential
sources and reveal confidential information supplied by these sources;
and disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories
of sources of records in each system of records. The application of
this provision could disclose investigative techniques and procedures
and cause sources to refrain from giving such information because of
fear of reprisal, or fear of breach of promises of anonymity and
confidentiality. This would compromise the ability to conduct
investigations, and to identify, detect, and apprehend violators.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive Order. An exemption from the foregoing is needed:
(A) Because it is not possible to detect relevance or necessity of
specific information in the early stages of a criminal or other
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established.
(C) In any investigation the Inspector General may obtain information
concerning the violations of laws other than those within the scope of
his jurisdiction. In the interest of effective law enforcement, the
Inspector General should retain this information as it may aid in
establishing patterns of criminal activity, and provide leads for those
law enforcement agencies charged with enforcing other segments of
criminal or civil law.
(D) In interviewing persons, or obtaining other forms of evidence
during an investigation, information may be supplied to the investigator
which relate to matters incidental to the main purpose of the
investigation but which may relate to matters under the investigative
jurisdiction of another agency. Such information cannot readily be
segregated.
(5) 5 U.S.C. 552a(e)(2) requires an agency to collect 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, and privilege under Federal programs.
The application of the provision would impair investigations of illegal
acts, violations of the rules of conduct, merit system and any other
misconduct for the following reasons:
(A) In certain instances the subject of an investigation cannot be
required to supply information to investigators. In those instances,
information relating to a subject's illegal acts, violations of rules of
conduct, or any other misconduct, etc., must be obtained from other
sources.
(B) Most information collected about an individual under
investigation is obtained from third parties such as witnesses and
informers. It is not feasible to rely upon the subject of the
investigation as a source for information regarding his activities.
(C) The subject of an investigation will be alerted to the existence
of an investigation if an attempt is made to obtain information from the
subject. This would afford the individual the opportunity to conceal
any criminal activities to avoid apprehension.
(D) In any investigation it is necessary to obtain evidence from a
variety of sources other than the subject of the investigation in order
to verify the evidence necessary for successful litigation.
(6) 5 U.S.C. 552a(e)(3) requires that an agency must inform the
subject of an investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether
disclosure of the information is mandatory or voluntary.
(B) The purposes for which the information is intended to be used,
(C) The routine uses which may be made of the information, and
(D) The effects on the subject, if any of not providing the requested
information. The reasons for exempting this system of records from the
foregoing provision are as follows:
(i) The disclosure to the subject of the investigation as stated in
(B) above would provide the subject with substantial information
relating to the nature of the investigation and could impede or
compromise the investigation.
(ii) If the subject were informed of the information required by this
provision, it could seriously interfere with undercover activities by
requiring disclosure of undercover agents identity and impairing their
safety, as well as impairing the successful conclusion of the
investigation.
(iii) Individuals may be contacted during preliminary information
gathering in investigations authorized by Treasury Department Order No.
256 before any individual is identified as the subject of an
investigation. Informing the individual of the matters required by this
provision would hinder or adversely affect any present or subsequent
investigations.
(7) 5 U.S.C. 552a(e)(5) requires that records be maintained with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in making any
determination about an individual. Since the law defines ''maintain''
to include the collection of information, complying with this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment of its collection. In
gathering information during the course of an investigation it is not
possible to determine this prior to collection of the information.
Facts are first gathered and then placed into a logical order which
objectively proves or disproves criminal behavior on the part of the
suspect. Material which may seem unrelated, irrelevant, incomplete,
untimely, etc., may take on added meaning as an investigation
progresses. The restrictions in this provision could interfere with the
preparation of a complete investigative report.
(8) 5 U.S.C. 552a(e)(8) requires an agency to make 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. The notice requirement of
this provision could prematurely reveal an ongoing criminal
investigation to the subject of the investigation.
(f) Exempt information included in another system. Any information
from a system of records for which an exemption is claimed under 5
U.S.C. 552a(j) or (k) which also is included in another system of
records retains the same exempt status as in the system for which an
exemption is claimed.
The Assistant Secretary for Administration exempts under section (k)
of the Privacy Act of 1974, 5 U.S.C. 552a, the Department's Personnel
Security Files and Personnel Security Files and Indices from sections
(c)(3), (d), (e)(1), (e)(4)(G) through (e)(4)(I), and (f) of the Act.
The records maintained in the exempt systems of records are of the type
described in section (k)(5) of the Act:
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 the effective date of this
section, under an implied promise that the identity of the source would
be held in confidence.
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this exemption and are subject to all the
requirements of the Privacy Act.
The sections of the Act from which this system of records are exempt
are in general those providing for individual access to records. When
such access would cause the identity of a confidential source to be
revealed, it would impair the future ability of the Treasury Department
to compile investigatory material for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information.
In addition, the systems are exempt from section (e)(1) which
requires that the agency maintain in its records only such information
about an individual as is relevant and necessary to accomplish a
statutory or executively ordered purpose. The Director finds that to
fulfill the requirements of section (e)(1) would unduly restrict the
agency in its information gathering inasmuch as it is often not until
well after the investigation that it is possible to determine the
relevance and necessity of particular information.
If any investigations within the scope of section (k)(5) become
involved with civil or criminal matters, exemptions from the Act could
also be asserted under sections (k)(2) or (j)(2).
The new regulations promulgated by the Office of Foreign Assets
Control (as amendments to its Foreign Assets Control Regulations;
Transaction Control Regulations; Cuban Assets Control Regulations;
and, Rhodesian Sanction Regulations) read as follows:
Pursuant to subsection (k)(2) of 5 U.S.C. 552a, the Privacy Act of
1974, the Enforcement Records of the Office of Foreign Assets Control
are hereby exempted from the requirements of subsections (c)(3), (d),
(e)(1), (e)(4)(G-I), and (f) of 5 U.S.C. 552a, as materials which are
compiled and maintained for the purpose of conducting and recording
investigations of criminal violations of relevant statutes and
regulations administered by the Office of Foreign Assets Control. These
records contain, among other things, information and evidence which was
furnished in confidence by individuals, corporations, partnerships and
other entities, Federal, State and local agencies, and by foreign
individuals, corporations, partnerships and other entities, and foreign
government sources. If it should appear that the individual concerning
whom a record is maintained has been or will be denied any right,
privilege, or benefit to which he would otherwise be entitled by Federal
law, or for which he would otherwise be eligible, except for the
maintenance of such material, such material shall be disclosed to such
individual, except: (1) To the extent that disclosure 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 (2) to the extent that disclosure would reveal the
identity of a source who furnished information prior to the effective
date of the Privacy Act (September 27, 1975) under an implied promise
that the identity of the source would be held in confidence.
(a) In general. The Assistant Secretary of the Treasury for
Enforcement exempts the system of records entitled ''FinCEN Data Base''
(Treasury/DO .200) from certain provisions of the Privacy Act of 1974,
as amended, 5 U.S.C. 552a.
(b) Authority: 5 U.S.C. 552a (j) and (k); 31 CFR 1.23(c).
(c) General exemptions under 5 U.S.C. 552a(j)(2). Pursuant to 5
U.S.C. 552a(j)(2), the Assistant Secretary for Enforcement hereby
exempts the FinCEN Data Base system of records, maintained by the
Financial Crimes Enforcement Network (''FinCEN''), an office reporting
to the Assistant Secretary for Enforcement, from the following
provisions of the Privacy Act of 1974:
5 U.S.C. 552a(c) (3) and (4);
5 U.S.C. 552a(d) (1), (2), (3) and (4);
5 U.S.C. 552a (e) (1), (2) and (3);
5 U.S.C. 552a(e)(4) (G), (H) and (I);
5 U.S.C. 552a(e) (5) and (8);
5 U.S.C. 552a(f); and
5 U.S.C. 552a(g).
(d) Specific exemptions under 5 U.S.C. 552a(k)(1). To the extent that
the system of records may contain information subject to the provisions
of 5 U.S.C. 552(b)(1), regarding national defense and foreign policy
information classified pursuant to Executive order, the Assistant
Secretary for Enforcement hereby exempts the FinCEN Data Base system of
records from the following provisions of 5 U.S.C. 552a, pursuant to 5
U.S.C. 552a(k)(1):
5 U.S.C. 552a(c)(3);
5 U.S.C. 552a(d) (1), (2), (3), and (4);
5 U.S.C. 552a(e)(1);
5 U.S.C. 552a(e)(4) (G), (H), and (I); and
5 U.S.C. 552a(f).
(e) Specific exemptions under 5 U.S.C. 552a(k)(2). To the extent that
the exemption under 5 U.S.C. 552a(j)(2) does not apply to the FinCEN
Data Base, the Assistant Secretary for Enforcement hereby exempts the
FinCEN Data Base system of records from the following provisions of 5
U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(2):
5 U.S.C. 552a(c)(3);
5 U.S.C. 552a(d) (1), (2), (3), and (4);
5 U.S.C. 552a(e)(1);
5 U.S.C. 552a(e)(4) (G), (H), and (I); and
5 U.S.C. 552a(f).
(f) Reasons for exemptions under 5 U.S.C. 552a (j)(2) and (k)(2).
(1) 5 U.S.C. 552a (e)(4)(G) and (f)(1) enable individuals to inquire
whether a system of records contains records pertaining to them.
Application of these provisions to the FinCEN Data Base would allow
individuals to learn whether they have been identified as suspects or
subjects of investigation. As further described in the following
paragraph, access to such knowledge would impair FinCEN's ability to
carry out its mission, since individuals could (i) take steps to avoid
detection, (ii) inform associates that an investigation is in progress,
(iii) learn the nature of the investigation, (iv) learn whether they are
only suspects or identified as law violators, (v) begin, continue, or
resume illegal conduct upon learning that they are not identified in the
system of records, or (vi) destroy evidence needed to prove the
violation.
(2) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant
individuals access to records pertaining to them. The application of
these provisions to the FinCEN Data Base would compromise FinCEN's
ability to provide useful tactical and strategic information to law
enforcement agencies.
(i) Permitting access to records contained in the FinCEN Data Base
would provide individuals with information concerning the nature of any
current investigations and would enable them to avoid detection or
apprehension by (A) discovering the facts that would form the basis for
their arrest, (B) enabling them to destroy or alter evidence of criminal
conduct that would form the basis for their arrest, and (C) using
knowledge that criminal investigators had reason to believe that a crime
was about to be committed, to delay the commission of the crime or
commit it at a location that might not be under surveillance.
(ii) Permitting access to either on-going or closed investigative
files would also reveal investigative techniques and procedures, the
knowledge of which could enable individuals planning crimes to structure
their operations so as to avoid detection or apprehension.
(iii) Permitting access to investigative files and records could,
moreover, disclose the identity of confidential sources and informers
and the nature of the information supplied and thereby endanger the
physical safety of those sources by exposing them to possible reprisals
for having provided the information. Confidential sources and informers
might refuse to provide criminal investigators with valuable information
unless they believed that their identities would not be revealed through
disclosure of their names or the nature of the information they
supplied. Loss of access to such sources would seriously impair
FinCEN's ability to carry out its mandate.
(iv) Furthermore, providing access to records contained in the FinCEN
Data Base could reveal the identities of undercover law enforcement
officers who compiled information regarding the individual's criminal
activities and thereby endanger the physical safety of those undercover
officers or their families by exposing them to possible reprisals.
(v) By compromising the law enforcement value of the FinCEN Data Base
for the reasons outlined in paragraphs (f)(2) through (iv) of this
paragraph, permitting access in keeping with these provisions would
discourage other law enforcement and regulatory agencies, foreign and
domestic, from freely sharing information with FinCEN and thus would
restrict FinCEN's access to information necessary to accomplish its
mission most effectively.
(vi) Finally, the dissemination of certain information that FinCEN
may maintain in the FinCEN Data Base is restricted by law.
(3) 5 U.S.C. 552a (d) (2), (3) and (4), (e)(4)(H), and (f)(4) permit
an individual to request amendment of a record pertaining to him or her
and require the agency either to amend the record, or to note the
disputed portion of the record and to provide a copy of the individual's
statement of disagreement with the agency's refusal to amend a record to
persons or other agencies to whom the record is thereafter disclosed.
Since these provisions depend on the individual's having access to his
or her records, and since these rules propose to exempt the FinCEN Data
Base from the provisions of 5 U.S.C. 552a relating to access to records,
for the reasons set out in paragraph (f)(2) of this section, these
provisions should not apply to the FinCEN Data Base.
(4) 5 U.S.C. 552(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute that the agency
made in accordance with 5 U.S.C. 552a(d) to any record that the agency
disclosed to the person or agency if an accounting of the disclosure was
made. Since this provision depends on an individual's having access to
and an opportunity to request amendment of records pertaining to him or
her, and since these rules proposed to exempt the FinCEN Data Base from
the provisions of 5 U.S.C. 552a relating to access to and amendment of
records, for the reeasons set out in paragraph (f)(3) of this section,
this provision ought not apply to the FinCEN Data Base.
(5) 5 U.S.C. 552a(3) requires an agency to make accountings of
disclosures of a record available to the individual named in the record
upon his or her request. The accountings must state the date, nature,
and purpose of each disclosure of the record and the name and address of
the recipient.
(i) The application of this provision would impair the ability of law
enforcement agencies outside the Department of the Treasury to make
effective use of information provided by FinCEN. Making accountings of
disclosures available to the subjects of an investigation would alter
them to the fact that another agency is conducting an investigation into
their criminal activities and could reveal the geographic location of
the other agency's investigation, the nature and purpose of that
investigation, and the dates on which that investigation was active.
Violators possessing such knowledge would be able to take measures to
avoid detection or apprehension by altering their operations, by
transferring their criminal activities to other geographical areas, or
by destroying or concealing evidence that would form the basis for
arrest.
(ii) Moreover, providing accountings to the subjects of
investigations would alert them to the fact that FinCEN has information
regarding their criminal activities and could inform them of the general
nature of that information. Access to such information could reveal the
operation of FinCEN's information-gathering and analysis systems and
permit violators to take steps to avoid detection or apprehension.
(6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general
notice listing the categories of sources for information contained in a
system of records. The application of this provision to the FinCEN Data
Base could compromise FinCEN's ability to provide useful information to
law enforcement agencies, since revealing sources for the information
could (i) disclose investigative techniques and procedures, (ii) result
in threats or reprisals against informers by the subjects of
investigations, and (iii) cause informers to refuse to give full
information to criminal investigators for fear of having their
identities as sources disclosed.
(7) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its records
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency required to be accomplished by
statute or executive order. The term ''maintain,'' as defined in 5
U.S.C. 552a(a)(3), includes ''collect'' and ''disseminate.'' The
application of this provision to the FinCEN Data Base could impair
FinCEN's ability to collect and disseminate valuable law enforcement
information.
(i) At the time that FinCEN collects information, it often lacks
sufficient time to determine whether the information is relevant and
necessary to accomplish a FinCEN purpose.
(ii) In many cases, especially in the early stages of investigation,
it may be impossible immediately to determine whether information
collected is relevant and necessary, and information that initially
appears irrelevent and unnecessary often may, upon further evaluation or
upon collation with information developed subsequently, prove
particularly relevant to a law enforcement program.
(iii) Not all violations of law discovered by FinCEN analysts fall
within the investigative jurisdiction of the Department of the Treasury.
To promote effective law enforcement, FinCEN will have to disclose such
violations to other law enforcement agencies, including State, local and
foreign agencies, that have jurisdiction over the offenses to which the
information relates. Otherwise, FinCEN might be placed in the position
of having to ignore information relating to violations of law not within
the jurisdiction of the Department of the Treasury when that information
comes to FinCEN's attention during the collation and analysis of
information in its records.
(8) 5 U.S.C. 552a(e)(2) requires an agency to collect 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, and privileges under Federal programs.
The application of this provision to the FinCEN Data Base would impair
FinCEN's ability to collate, analyze, and disseminate investigative,
intelligence, and enforcement information.
(i) Most information collected about an individual under criminal
investigation is obtained from third parties, such as witnesses and
informants. It is usually not feasible to rely upon the subject of the
investigation as a source for information regarding his criminal
activities.
(ii) An attempt to obtain information from the subject of a criminal
investigation will often alert that individual to the existence of an
investigation, thereby affording the individual an opportunity to
attempt to conceal his criminal activities so as to avoid apprehension.
(iii) In certain instances, the subject of a criminal investigation
is not required to supply information to criminal investigators as a
matter of legal duty.
(iv) During criminal investigations it is often a matter of sound
investigative procedure to obtain information from a variety of sources
to verify information already obtained.
(9) 5 U.S.C. 552a(e)(3) requires an agency to inform each individual
whom it asks to supply information, on the form that it uses to collect
the information or on a separate form that the individual can retain, of
the agency's authority for soliciting the information; whether
disclosure of information is voluntary or mandatory; the principal
purposes for which the agency will use the information; the routine
uses that may be made of the information; and the effects on the
individual of not providing all or part of the information. The FinCEN
Data Base should be exempted from this provision to avoid impairing
FinCEN's ability to collect and collate investigative, intelligence, and
enforcement data.
(i) Confidential sources or undercover law enforcement officers often
obtain information under circumstances in which it is necessary to keep
the true purpose of their actions secret so as not to let the subject of
the investigation or his or her associates know that a criminal
investigation is in progress.
(ii) If it became known that the undercover officer was assisting in
a criminal investigation, that officer's physical safety could be
endangered through reprisal, and that officer may not be able to
continue working on the investigation.
(iii) Individuals often feel inhibited in talking to a person
representing a criminal law enforcement agency but are willing to talk
to a confidential source or undercover officer whom they believe not to
be involved in law enforcement activities.
(iv) Providing a confidential source of information with written
evidence that he or she was a source, as required by this provision,
could increase the likelihood that the source of information would be
subject to retaliation by the subject of the investigation.
(v) Finally, application of this provision could result in an
unwarranted invasion of the personal privacy of the subject of the
criminal investigation, particularly where further investigation reveals
that the subject was not involved in any criminal activity.
(10) 5 U.S.C. 552a(e)(5) requires an agency to maintain all records
it uses in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
(i) Since 5 U.S.C. 552a(a)(3) defines ''maintain'' to include
''collect'' and ''disseminate,'' application of this provision to the
FinCEN Data Base would hinder the initial collection of any information
that could not, at the moment of collection, be determined to be
accurate, relevant, timely, and complete. Similarly, application of
this provision would seriously restrict FinCEN's ability to disseminate
information pertaining to a possible violation of law to law enforcement
and regulatory agencies. In collecting information during a criminal
investigation, it is often impossible or unfeasible to determine
accuracy, relevance, timeliness, or completeness prior to collection of
the information. In disseminating information to law enforcement and
regulatory agencies, it is often impossible to determine accuracy,
relevance, timeliness, or completeness prior to dissemination, because
FinCEN may not have the expertise with which to make such
determinations.
(ii) Information that may initially appear inaccurate, irrelevant,
untimely, or incomplete may, when collated and analyzed with other
available information, become more pertinent as an investigation
progresses. In addition, application of this provision could seriously
impede criminal investigators and intelligence analysts in the exercise
of their judgment in reporting results obtained during criminal
investigations.
(11) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when the agency makes any
record on the individual available to any person under compulsory legal
process, when such process becomes a matter of public record. The
FinCEN Data Base should be exempted from this provision to avoid
revealing investigative techniques and procedures outlined in those
records and to prevent revelation of the existence of an ongoing
investigation where there is need to keep the existence of the
investigation secret.
(12) 5 U.S.C. 552a(g) provides for civil remedies to an individual
when an agency wrongfully refuses to amend a record or to review a
request for amendment, when an agency wrongfully refuses to grant access
to a record, when an agency fails to maintain accurate, relevant,
timely, and complete records which are used to make a determination
adverse to the individual, and when an agency fails to comply with any
other provision of 5 U.S.C. 552a so as to adversely affect the
individual. The FinCEN Data Base should be exempted from this provision
to the extent that the civil remedies may relate to provisions of 5
U.S.C. 552a from which these rules propose to exempt the FinCEN Data
Base, since there should be no civil remedies for failure to comply with
provisions from which FinCEN is exempted. Exemption from this provision
will also protect FinCEN from baseless civil court actions that might
hamper its ability to collate, analyze, and disseminate investigative,
intelligence, and law enforcement data.
(g) Exempt information included in another system. Any information
from a system of records for which an exemption is claimed under 5
U.S.C. 552a (j) or (k) which is also included in another system of
records retains the same exempt status such information has in the
system for which such exemption is claimed.
The Commissioner of Internal Revenue finds that the orderly and
efficient administration of the internal revenue laws necessitates that
certain systems of records maintained by the Internal Revenue Service be
exempted from certain sections of the Privacy Act of 1974 (88 Stat.
1986).
(a) Exemptions under 5 U.S.C. 552a (j) (2). (1) This paragraph
applies to the following systems of records maintained by the Internal
Revenue Service, for which exemptions are claimed under 5 U.S.C.
552a(j) (2).
(2) Under 5 U.S.C. 552a(j)(2), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act of 1974 if the agency or component thereof
that maintains the system performs as its principal function any
activities pertaining to the enforcement of criminal laws. Certain
components of the Internal Revenue Service have as their principal
function activities pertaining to the enforcement of criminal laws.
(3) To the extent the exemption under 5 U.S.C. 552a(j)(2) does not
apply to any of the above-named systems, then exemptions under 5 U.S.C.
552a(k)(2), relating to investigatory material compiled for law
enforcement purposes, are hereby claimed for such systems.
(4) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(j)(2) are as follows:
5 U.S.C. 552a(c) (3) and (4)
5 U.S.C. 552a(d) (1), (2), (3), and (4)
5 U.S.C. 552a(e) (1), (2), and (3)
5 U.S.C. 552a(e) (4) (G), (H), and (I)
5 U.S.C. 552a(e) (5) and (8)
5 U.S.C. 552a(f)
5 U.S.C. 552a(g)
(5) See paragraph (c) for reasons for the exemptions.
(b) Exemptions under 5 U.S.C. 552a (k)(2). (1) This paragraph
applies to the following systems of records maintained by the Internal
Revenue Service, for which exemptions are claimed under 5 U.S.C.
552a(k)(2):
(2) Under 5 U.S.C. 552a (k)(2), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act of 1974 if the system is investigatory
material compiled for law enforcement purposes. To the extent that
information contained in the above-named systems has as its principal
purpose the enforcement of criminal laws, exemption for such information
under 5 U.S.C. 552a (j)(2) is hereby claimed.
(3) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(k)(2) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d) (1), (2), (3), and (4)
5 U.S.C. 552a (e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a(f)
(4) See paragraph (c) for reasons for the exemptions.
(c) Reasons for exemptions. The following are the reasons for
exempting systems of records maintained by the Internal Revenue Service
pursuant to 5 U.S.C. 552a (j)(2) and (k)(2) of the Privacy Act of 1974.
(1) 5 U.S.C. 552a(c)(3). This provision of the Privacy Act provides
for the release of the disclosure accounting required by 5 U.S.C.
552a(c) (1) and (2) to the individual named in the record at his
request. The reasons for exempting systems of records from the
foregoing provision are as follows:
(i) The release of disclosure accounting would put the subject of an
investigation on notice of the existence of an investigation and that
such person is the subject of that investigation;
(ii) Such release would provide the subject of an investigation with
an accurate accounting of the date, nature, and purpose of each
disclosure and the name and address of the person or agency to whom the
disclosure is made. The release of such information to the subject of
an investigation would provide the subject with significant information
concerning the nature of the investigation and could result in the
altering or destruction of documentary evidence, the improper
influencing of witnesses, and other activities that could impede or
compromise the investigation. In the case of a delinquent account, such
release might enable the subject of the investigation to dissipate
assets before levy;
(iii) Release to the individual of the disclosure accounting would
alert the individual as to which agencies were investigating this person
and the scope of the investigation, and could aid the individual in
impeding or compromising investigations by those agencies.
(2) 5 U.S.C. 552a (c)(4), (d)(1), (2), (3), and (4), (e)(4) (G) and
(H), (f), and (g). These provisions of the Privacy Act relate to an
individual's right to notification of the existence of records
pertaining to such individual; requirements for identifying an
individual who requests access to records; the agency procedures
relating to access to records and the contest of the information
contained in such records; and the civil remedies available to the
individual in the event of adverse determinations by an agency
concerning access to or amendment of information contained in record
systems. The reasons for exempting systems of records from the
foregoing provisions are as follows: To notify an individual at the
individual's request of the existence of records in an investigative
file pertaining to such individual or to grant access to an
investigative file could interfere with investigative and enforcement
proceedings; deprive co-defendants of a right to a fair trial or an
impartial adjudication; constitute an unwarranted invasion of the
personal privacy of others; disclose the identity of confidential
sources and reveal confidential information supplied by such sources;
and disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act
requires the publication of the categories of sources of records in each
system of records. In cases where an exemption from this provision has
been claimed, the reasons are as follows:
(i) Revealing categories of sources of information could disclose
investigative techniques and procedures;
(ii) Revealing categories of sources of information could cause
sources who supply information to investigators to refrain from giving
such information because of fear of reprisal, or fear of breach of
promises of anonymity and confidentiality.
(4) 5 U.S.C. 552a(e)(1). This provision of the Privacy Act requires
each agency to maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency required to be accomplished by statute or executive order. The
reasons for exempting systems of records from the foregoing provision
are as follows:
(i) The Internal Revenue Service will limit its inquiries to
information which is necessary for the enforcement and administration of
tax laws. However, an exemption from the foregoing provision is needed
because, particularly in the early stages of a tax audit or other
investigation, it is not possible to determine the relevance or
necessity of specific information.
(ii) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may subsequently be
determined to be irrelevant or unnecessary. It is only after the
information is evaluated that the relevance and necessity of such
information can be established with certainty.
(iii) When information is received by the Internal Revenue Service
relating to violations of law within the jurisdiction of other agencies,
the Service processes this information through Service systems in order
to forward the material to the appropriate agencies.
(5) 5 U.S.C. 552a(e)(2). This provision of the Privacy Act requires
an agency to collect 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, and
privileges under Federal programs. The reasons for exempting systems of
records from the foregoing provisions are as follows:
(i) In certain instances the subject of a criminal investigation
cannot be required to supply information to investigators. In those
instances, information relating to a subject's criminal activities must
be obtained from other sources;
(ii) In a criminal investigation it is necessary to obtain evidence
from a variety of sources other than the subject of the investigation in
order to accumulate and verify the evidence necessary for the successful
prosecution of persons suspected of violating the criminal laws.
(6) 5 U.S.C. 552a(e)(3). This provision of the Privacy Act requires
that an agency must inform the subject of an investigation who is asked
to supply information of (A) the authority under which the information
is sought and whether disclosure of the information is mandatory or
voluntary, (B) the purposes for which the information is intended to be
used, (C) the routine uses which may be made of the information, and (D)
the effects on the subject, if any, of not providing the requested
information. The reasons for exempting systems of records from the
foregoing provision are as follows:
(i) The disclosure to the subject of an investigation of the purposes
for which the requested information is intended to be used would provide
the subject with significant information concerning the nature of the
investigation and could result in impeding or compromising the
investigation.
(ii) Informing the subject of an investigation of the matters
required by this provision could seriously undermine the actions of
undercover officers, requiring them to disclose their identity and
impairing their safety, as well as impairing the successful conclusion
of the investigation.
(iii) Individuals may be contacted during preliminary information
gathering, surveys, or compliance projects concerning the administration
of the internal revenue laws before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would impede or compromise subsequent
investigations.
(7) 5 U.S.C. 552a(e)(5). This provision of the Privacy Act requires
an agency to maintain all records which are used in making any
determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination. The reasons for
exempting systems of records from the foregoing provision are as
follows: Since the law defines ''maintain'' to include the collection
of information, compliance with the foregoing provision would prohibit
the initial collection of any data not shown to be accurate, relevant,
timely, and complete at the moment of its collection. In gathering
information during the course of a criminal investigation, it is not
feasible or possible to determine completeness, accuracy, timeliness, or
relevancy prior to collection of the information. Facts are first
gathered and then placed into a cohesive order which objectively proves
or disproves criminal behavior on the part of a suspect. Seemingly
nonrelevant, untimely, or incomplete information when gathered may
acquire new significance as an investigation progresses. The
restrictions of the foregoing provision could impede investigators in
the preparation of a complete investigative report.
(8) 5 U.S.C. 552a(e)(8). This provision of the Privacy Act requires
an agency to make 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. The reasons for exempting systems of records from the foregoing
provision are as follows: The notice requirement of the foregoing
provision could prematurely reveal the existence of criminal
investigations to individuals who are the subject of such
investigations.
(d) Exemption under 5 U.S.C. 552a (k)(4). (1) This paragraph applies
to the following system of records maintained by the Internal Revenue
Service, for which exemption is claimed under 5 U.S.C. 552a(k)(4):
Statistics of Income -- Individual Tax Returns 70.001.
(2) Under 5 U.S.C. 552a(k)(4), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act of 1974 if the system is required by
statute to be maintained and used solely as statistical records.
(3) The above-named system is maintained under section 6108 of the
Internal Revenue Code, which provides that ''the Secretary or his
delegate shall prepare and publish annually statistics reasonably
available with respect to the operation of the income tax laws,
including classifications of taxpayers and of income, the amounts
allowed as deductions, exemptions, and credits, and any other facts
deemed pertinent and valuable''.
(4) The reason for exempting the above-named system of records is
that disclosure of statistical records (including release of accounting
for disclosures) would in most instances be of no benefit to a
particular individual since the records do not have a direct effect on a
given individual.
(5) The provisions of the Privacy Act of 1974 from which exemption is
claimed under 5 U.S.C. 552a(k)(4) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d) (1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a(f)
(e) Exemptions under 5 U.S.C. 552a (k)(5). (1) This paragraph
applies to the following systems of records maintained by the Internal
Revenue Service, for which exemptions are claimed under 5 U.S.C.
552a(k)(5):
(2) Under 5 U.S.C. 552a(k)(5), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act of 1974 if the system is investigatory
material compiled solely for the purpose of determining suitability,
eligibility, and qualifications for Federal civilian employment 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, under an implied promise that the identity of the
source would be held in confidence. Thus, to the extent that records in
the above-named systems can be disclosed without revealing the identity
of a confidential source, they are not within the scope of this
exemption and are subject to all the requirements of the Privacy Act.
(3) The provisions of the Act from which exemptions are claimed for
the above-named systems of records are in general those providing for
individual access to records. When such access would cause the identity
of a confidential source to be revealed, it would impair the future
ability of the Service to compile investigatory material for the purpose
of determining suitability, eligibility, or qualifications for Federal
civilian employment, Federal contracts, or access to classified
information. In addition, the systems are to be exempt from 5 U.S.C.
552a(e)(1), which requires that the agency maintain in its records only
such information about an individual as is relevant and necessary to
accomplish a statutory or executively ordered purpose. The Service
finds that to fulfill the requirements of 5 U.S.C. 552a(e)(1) would
unduly restrict the agency in its information gathering inasmuch as it
is often not until well after the investigation that it is possible to
determine the relevance and necessity of particular information.
(4) If any investigatory material contained in the above-named
systems becomes involved in criminal or civil matters, exemptions of
such material under 5 U.S.C. 552a (j)(2) or (k)(2) is hereby claimed.
(5) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(k)(5) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a (d) (1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a (f)
(f) Exemption under 5 U.S.C. 552a(k)(6). (1) This paragraph applies
to the following system of records maintained by the Internal Revenue
Service, for which exemption is claimed under 5 U.S.C. 552a(k)(6):
Recruiting, Examining and Placement Records 36.008
(2) Under 5 U.S.C. 552a(k)(6), the head of any agency may promulgate
rules to exempt any system of records that is 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.
(3) The reason for exempting the above-named system is that
disclosure of the material in the system would compromise the
objectivity or fairness of the examination process.
(4) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(k)(6) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d)(1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a (f)
(g) Exempt information included in another system. Any information
from a system of records for which an exemption is claimed under 5
U.S.C. 552a (j) or (k) which also is included in another system of
records retains the same exempt status such information has in the
system for which such exemption is claimed.
In accordance with 5 U.S.C. 552a (j) and (k), general notice is
hereby given of rulemaking pursuant to the Privacy Act of 1974 by the
Commissioner, United States Customs Service, under authority delegated
to him by the Secretary of the Treasury. The Commissioner, United
States Customs Service, exempts the systems of records identified in the
paragraphs below from certain provisions of the Privacy Act of 1974 as
set forth in such paragraphs.
a. General exemptions under 5 U.S.C. 552a(j)(2). Pursuant to the
provisions of 5 U.S.C. 552a(j)(2), the Commissioner, United States
Customs Service, hereby exempts certain systems of records, maintained
by the United States Customs Service, from the provisions of 5 U.S.C.
552a(c) (3) and (4), (d) (1), (2), (3) and (4), (e)(1), (2), (3),
(4)(G), (H) and (I), (5) and (8), (f) and (g).
1. Exempt systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(j)(2), shall be
exempt from the provisions of 5 U.S.C. 552a listed in paragraph a.
above except as otherwise indicated below and in the general notice of
the existence and character of systems of records which appears
elsewhere in the Federal Register:
00.285 -- Automated Index to Central Enforcement Files
00.270 -- Background -- Record File of Non-Customs Employees
00.037 -- Cargo Security Record System
00.053 -- Confidential Source Identification File
00.067 -- Bank Secrecy Act Reports File
00.287 -- Customs Automated Licensing Information System (CALIS)
(Proposed)
00.127 -- Internal Security Records System
00.129 -- Investigations Record System
00.244 -- Treasury Enforcement Communications System (TECS)
2. Reasons for exemptions, (a) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The Customs Service believes that
application of these provisions to the above-listed systems of records
would give individuals an opportunity to learn whether they are of
record either as suspects or as subjects of a criminal investigation;
this would compromise the ability of the Customs Service to complete
investigations and to detect and apprehend violators of the Customs and
related laws in that individuals would thus be able (1) to take steps to
avoid detection, (2) to inform co-conspirators of the fact that an
investigation is being conducted, (3) to learn the nature of the
investigation to which they are being subjected, (4) to learn the type
of surveillance being utilized, (5) to learn whether they are only
suspects or identified law violators, (6) to continue or resume their
illegal conduct without fear of detection upon learning that they are
not in a particular system of records, and (7) to destroy evidence
needed to prove the violation.
(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f) (2), (3) and (5) enable
individuals to gain access to records pertaining to them. The Customs
Service believes that application of these provisions to the
above-listed systems of records would compromise its ability to complete
or continue criminal investigations and to detect and apprehend
violators of the Customs and related criminal laws. Permitting access
to records contained in the above-listed systems of records would
provide individuals with significant information concerning the nature
of the investigation, and this could enable them to avoid detection or
apprehension in the following ways: (1) By discovering the collection
of facts which would form the basis for their arrest, (2) by enabling
them to destroy contraband or other evidence of criminal conduct which
would form the basis for their arrest and, (3) by learning that the
criminal investigators had reason to believe that a crime was about to
be committed, they could delay the commission of the crime or change the
scene of the crime to a location which might not be under surveillance.
Granting access to on-going or closed investigative files would also
reveal investigative techniques and procedures, the knowledge of which
could enable individuals planning criminal activity to structure their
future operations in such a way as to avoid detection or apprehension,
thereby neutralizing law enforcement officer's established investigative
tools and procedures. Further, granting access to investigative files
and records could disclose the identity of confidential sources and
other informers and the nature of the information which they supplied,
thereby endangering the life or physical safety of those sources of
information by exposing them to possible reprisals for having provided
information relating to the criminal activities of those individuals who
are the subjects of the investigative files and records; confidential
sources and other informers might refuse to provide criminal
investigators with valuable information if they could not be secure in
the knowledge that their identities would not be revealed through
disclosure of either their names or the nature of the information they
supplied, and this would seriously impair the ability of the Customs
Service to carry out its mandate to enforce the Customs criminal and
related laws. Additionally, providing access to records contained in
the above-listed systems of records could reveal the identities of
undercover law enforcement officers who compiled information regarding
individual's criminal activities, thereby endangering the life or
physical safety of those undercover officers or their families by
exposing them to possible reprisals.
(c) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which
are dependent upon access having been granted to records pursuant to the
provisions cited in paragraph (b) above, enable individuals to contest
(seek amendment to) the content of records contained in a system of
records and require an agency to note an amended record and to provide a
copy of an individual's statement (of disagreement with the agency's
refusal to amend a record) to persons or other agencies to whom the
record has been disclosed. The Customs Service believes that the
reasons set forth in paragraph (b) above are equally applicable to this
subparagraph and, accordingly, those reasons are hereby incorporated
herein by reference.
(d) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature and purpose
of each disclosure of a record and the name and address of the
recipient. The Customs Service believes that application of this
provision to the above-listed systems of records would impair the
ability of other law enforcement agencies to make effective use of
information provided by the Customs Service in connection with the
investigation, detection and apprehension of violators of the criminal
laws enforced by those other law enforcement agencies. Making
accountings of disclosure available to violators would alert those
individuals to the fact that another agency is conducting an
investigation into their criminal activities, and this could reveal the
geographic location of the other agency's investigation, the nature and
purpose of that investigation, and the dates on which that investigation
was active. Violators possessing such knowledge would thereby be able
to take appropriate measures to avoid detection or apprehension by
altering their operations, by transferring their criminal activities to
other geographical areas or by destroying or concealing evidence which
would form the basis for their arrest. In addition, providing violators
with accountings of disclosure would alert those individuals to the fact
that the Customs Service has information regarding their criminal
activities and could inform those individuals of the general nature of
that information; this, in turn, would afford those individuals a
better opportunity to take appropriate steps to avoid detection or
apprehension for violations of the Customs and related criminal laws.
(e) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with 5 U.S.C. 552a(d) of any record that has been
disclosed to the person or agency if an accounting of the disclosure was
made. Since this provision is dependent on an individual's having been
provided an opportunity to contest (seek amendment to) records
pertaining to him, and since the above-listed systems of records are
proposed to be exempted from those provisions of 5 U.S.C. 552a relating
to amendments of records as indicated in paragraph (c) above, the
Customs Service believes that this provision should not be applicable to
the above-listed systems of records.
(f) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public
notice listing the categories of sources for information contained in a
system of records. The Customs Service believes that application of
this provision to the above-listed systems of records could compromise
its ability to conduct investigations and to identify, detect and
apprehend violators of the Customs and related criminal laws for the
reasons that revealing sources for information could 1) disclose
investigative techniques and procedures, 2) result in threatened or
actual reprisal directed to informers by the subject under
investigation, and 3) result in the refusal of informers to give
information or to be candid with criminal investigators because of the
knowledge that their identities as sources might be disclosed.
(g) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ''maintain'' as
defined in 5 U.S.C. 552a(a)(3) includes ''collect'' and ''disseminate.''
At the time that information is collected by the Customs Service, there
is often insufficient time to determine whether the information is
relevant and necessary to accomplish a purpose of the Customs Service;
in many cases information collected may not be immediately susceptible
to a determination of whether the information is relevant and necessary,
particularly in the early stages of investigation, and in many cases
information which initially appears to be irrelevant and unnecessary
may, upon further evaluation or upon continuation of the investigation,
prove to have particular relevance to an enforcement program of the
Customs Service. Further, not all violations of law discovered during a
Customs Service criminal investigation fall within the investigative
jurisdiction of the Customs Service; in order to promote effective law
enforcement, it often becomes necessary and desirable to disseminate
information pertaining to such violations to other law enforcement
agencies which have jurisdiction over the offense to which the
information relates. The Customs Service should not be placed in a
position of having to ignore information relating to violations of law
not within its jurisdiction where that information comes to the
attention of the Customs Service through the conduct of a lawful Customs
Service investigation. The Customs Service therefore believes that it
is appropriate to exempt the above-listed systems of records from the
provisions of 5 U.S.C. 552a(e)(1).
(h) 5 U.S.C. 552a(e)(2) requires that an agency collect 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, and privileges under Federal programs.
The Customs Service believes that application of this provision to the
above-listed systems of records would impair the ability of the Customs
Service to conduct investigations and to identify, detect and apprehend
violators of the Customs and related criminal laws for the following
reasons: (1) most information collected about an individual under
criminal investigation is obtained from third parties such as witnesses
and informers, and it is usually not feasible to rely upon the subject
of the investigation as a source for information regarding his criminal
activities, (2) an attempt to obtain information from the subject of a
criminal investigation will often alert that individual to the existence
of an investigation, thereby affording the individual an opportunity to
attempt to conceal his criminal activities so as to avoid apprehension,
(3) in certain instances the subject of a criminal investigation is not
required to supply information to criminal investigators as a matter of
legal duty, and (4) during criminal investigations it is often a matter
of sound investigative procedure to obtain information from a variety of
sources in order to verify information already obtained.
(i) 5 U.S.C. 552a(e)(3) requires that an agency inform 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: the authority which authorizes the solicitation of the
information and whether disclosure of such information is mandatory or
voluntary; the principal purposes for which the information is intended
to be used; the routine uses which may be made of the information; and
the effects on the individual of not providing all or part of the
requested information. The Customs Service believes that the
above-listed systems of records should be exempted from this provision
in order to avoid adverse effects on its ability to identify, detect and
apprehend violators of the Customs and related criminal laws. In many
cases information is obtained by confidential sources or other informers
or by undercover law enforcement officers under circumstances where it
is necessary that the true purpose of their actions be kept secret so as
to not let it be known by the subject of the investigation or his
associates that a criminal investigation is in progress. Further, if it
became known that the undercover officer was assisting in a criminal
investigation, that officer's life or physical safety could be
endangered through reprisal, and, further, under such circumstances it
may not be possible to continue to utilize that officer in the
investigation. In many cases individuals for personal reasons would
feel inhibited in talking to a person representing a criminal law
enforcement agency but would be willing to talk to a confidential source
or undercover officer who they believed was not involved in law
enforcement activities. In addition, providing a source of information
with written evidence that he was a source, as required by this
provision, could increase the likelihood that the source of information
would be the subject of retaliatory action by the subject of the
investigation. Further, application of this provision could result in
an unwarranted invasion of the personal privacy of the subject of the
criminal investigation, particularly where further investigation would
result in a finding that the subject was not involved in any criminal
activity.
(j) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records
used by the agency in making any determination about any individual with
such accuracy, relevance, timeliness and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
Since 5 U.S.C. 552a(a)(3) defines ''maintain'' to include ''collect''
and ''disseminate,'' application of this provision to the above-listed
systems of records would hinder the initial collection of any
information which could not, at the moment of collection, be determined
to be accurate, relevant, timely and complete. Similarly, application
of this provision would seriously restrict the necessary flow of
information from the Customs Service to other law enforcement agencies
where a Customs Service investigation revealed information pertaining to
a violation of law which was under the investigative jurisdiction of
another agency. In collecting information during the course of a
criminal investigation, it is not possible or feasible to determine
accuracy, relevance, timeliness or completeness prior to collection of
the information; in disseminating information to other law enforcement
agencies it is often not possible to determine accuracy, relevance,
timeliness or completeness prior to dissemination because the
disseminating agency may not have the expertise with which to make such
determinations. Further, information which may initially appear to be
inaccurate, irrelevant, untimely or incomplete may, when gathered,
grouped, and evaluated with other available information, become more
pertinent as an investigation progresses. In addition, application of
this provision could seriously impede criminal investigators and
intelligence analysts in the exercise of their judgment in reporting on
results obtained during criminal investigations. The Customs Service
therefore believes that it is appropriate to exempt the above-listed
systems of records from the provisions of 5 U.S.C. 552a(e)(5).
(k) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable
efforts to serve notice on an individual when any record on the
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. The
Customs Service believes that the above-listed systems of records should
be exempt from this provision in order to avoid revealing investigative
techniques and procedures outlined in those records and in order to
prevent revelation of the existence of an on-going investigation where
there is a need to keep the existence of the investigation secret.
(l) 5 U.S.C. 552a(g) provides civil remedies to an individual for an
agency refusal to amend a record or to make a review of a request for
amendment, for an agency refusal to grant access to a record, for an
agency failure to maintain accurate, relevant, timely and complete
records which are used to make a determination which is adverse to the
individual, and for an agency failure to comply with any other provision
of 5 U.S.C. 552a in such a way as to have an adverse effect on an
individual. The Customs Service believes that the above-listed systems
of records should be exempted from this provision to the extent that the
civil remedies provided therein may relate to provisions of 5 U.S.C.
552a from which the above-listed systems of records are proposed to be
exempt. Since the provisions of 5 U.S.C. 552a enumerated in paragraphs
(a) through (k) above are proposed to be inapplicable to the
above-listed systems of records for the reasons stated therein, there
should be no corresponding civil remedies for failure to comply with the
requirements of those provisions to which the exemption is proposed to
apply. Further, the Customs Service believes that application of this
provision to the above-listed systems of records would adversely affect
its ability to conduct criminal investigations by exposing to civil
court action every stage of the criminal investigative process in which
information is compiled or used in order to identify, detect, apprehend
and otherwise investigate persons suspected or known to be engaged in
criminal conduct in violation of the Customs and related laws.
b. Specific exemptions under 5 U.S.C. 552a(k) (2). Pursuant to the
provisions of 5 U.S.C. 552a(k)(2), the Commissioner, United States
Customs Service, hereby exempts certain systems of records, maintained
by the United States Customs Service, from the provisions of 5 U.S.C.
552a(c)(3), (d) (1), (2), (3) and (4), (e) (1) and (4) (G), (H) and (I)
and (f).
1. Exempt systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(k)(2), shall be
exempt from the provisions of 5 U.S.C. 552a listed in paragraph b.
above except as otherwise indicated below and in the general notice of
the existence and character of systems of records which appears
elsewhere in the Federal Register:
00.014 -- Advice Requests (Legal) (Pacific Region)
00.021 -- Arrest/Seizure/Search Report and Notice of Penalty File
00.022 -- Attorney Case File
00.285 -- Automated Index to Central Enforcement Files
00.270 -- Background -- Record File of Non-Customs Employees
00.037 -- Cargo Security File
00.271 -- Cargo Security Record System
00.041 -- Cartmen or Lightermen
00.043 -- Case Files (Regional Counsel -- South Central Region)
00.046 -- Claims Case File
00.053 -- Confidential Source Identification File
00.057 -- Container Station Operator Files
00.058 -- Cooperating Individual Files
00.061 -- Court Case File
00.067 -- Bank Secrecy Act Reports File
00.069 -- Customhouse Brokers File (Chief Counsel)
00.287 -- Customs Automated Licensing Information System (CALIS)
00.077 -- Disciplinary Action and Resulting Grievances or Appeal Case
Files
00.078 -- Disclosure of Information File
00.098 -- Fines, Penalties, and Forfeitures Records
00.099 -- Fines, Penalties, and Forfeiture Files (Supplemental
Petitions)
00.100 -- Fines, Penalties, and Forfeiture Records (Headquarters)
00.122 -- Information Received File
00.125 -- Intelligence Log
00.127 -- Internal Security Records System
00.129 -- Investigations Record System
00.133 -- Justice Department Case File
00.138 -- Litigation Issue Files
00.140 -- Lookout Notice
00.155 -- Narcotics Suspect File
00.159 -- Notification of Personnel Management Division when an
employee is placed under investigation by the Office of Internal
Affairs.
00.182 -- Penalty Case File
00.186 -- Personal Search
00.190 -- Personal Case File
00.197 -- Private Aircraft/Vessel Inspection Reporting System
00.206 -- Regulatory Audits of Customhouse Brokers
00.212 -- Search/Arrest/Seizure Report
00.214 -- Seizure File
00.224 -- Suspect Persons Index
00.232 -- Tort Claims Act File
00.244 -- Treasury Enforcement Communications System (TECS)
00.258 -- Violator's Case Files
00.260 -- Warehouse Proprietor Files
2. Reasons for exemptions. (a) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The Customs Service believes that
application of these provisions (to those of the above-listed systems of
records for which no notification procedures have been provided in the
general notice of the existence and character of systems of records
which appears elsewhere in the Federal Register) would impair the
ability of the Customs Service to successfully complete investigations
and inquires of suspected violators of civil and criminal laws and
regulations under its jurisdiction. In many cases investigations and
inquiries into violations of civil and criminal laws and regulations
involve complex and continuing patterns of behavior. Individuals, if
informed that they have been identified as suspected violators of civil
or criminal laws and regulations, would have an opportunity to take
measures to prevent detection of illegal action so as to avoid
prosecution or the imposition of civil sanctions. They would also be
able to learn the nature and location of the investigation or inquiry
and the type of surveillance being utilized, and they would be able to
transmit this knowledge to co-conspirators. Finally, violators might be
given the opportunity to destroy evidence needed to prove the violation
under investigation or inquiry.
(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f) (2), (3) and (5) enable
individuals to gain access to records pertaining to them. The Customs
Service believes that application of these provisions to the
above-listed systems of records would impair its ability to complete or
continue civil or criminal investigations and inquiries and to detect
and apprehend violators of the Customs and related laws. Permitting
access to records contained in the above-listed systems of records would
provide violators with significant information concerning the nature of
the civil or criminal investigation or inquiry. Knowledge of the facts
developed during an investigation or inquiry would enable violators of
criminal and civil laws and regulations to learn the extent to which the
investigation or inquiry has progressed, and this could provide them
with an opportunity to destroy evidence that would form the basis for
prosecution or the imposition of civil sanctions. In addition,
knowledge gained through access to investigatory material could alert a
violator to the need to temporarily postpone commission of the violation
or to change the intended point where the violation is to be committed
so as to avoid detection or apprehension. Further, access to
investigatory material would disclose investigative techniques and
procedures which, if known, could enable violators to structure their
future operations in such a way as to avoid detection or apprehension,
thereby neutralizing investigators' established and effective
investigative tools and procedures. In addition, investigatory material
may contain the identity of a confidential source of information or
other informer who would not want his identity to be disclosed for
reasons of personal privacy or for fear of reprisal at the hands of the
individual about whom he supplied information. In some cases mere
disclosure of the information provided by an informer would reveal the
identity of the informer either through the process of elimination or by
virtue of the nature of the information supplied. If informers cannot
be assured that their identities (as sources for information) will
remain confidential, they would be very reluctant in the future to
provide information pertaining to violations of criminal and civil laws
and regulations, and this would seriously compromise the ability of the
Customs Service to carry out its mission. Further, application of 5
U.S.C. 552a (d)(1), (e)(4)(H) and (f) (2), (3) and (5) to the
above-listed systems of records would make available attorney's work
product and other documents which contain evaluations, recommendations,
and discussions of ongoing civil and criminal legal proceedings; the
availability of such documents could have a chilling effect on the free
flow of information and ideas within the Customs Service which is vital
to the agency's predecisional deliberative process, could seriously
prejudice the agency's or the Government's position in a civil or
criminal litigation, and could result in the disclosure of investigatory
material which should not be disclosed for the reasons stated above. It
is the belief of the Customs Service that, in both civil actions and
criminal prosecutions, due process will assure that individuals have a
reasonable opportunity to learn of the existence of, and to challenge,
investigatory records and related materials which are to be used in
legal proceedings.
(c) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which
are dependent upon access having been granted to records pursuant to the
provisions cited in subparagraph (b) above, enable individuals to
contest (seek amendment to) the content of records contained in a system
of records and require an agency to note an amended record and to
provide a copy of an individual's statement (of disagreement with the
agency's refusal to amend a record) to persons or other agencies to whom
the record has been disclosed. The Customs Service believes that the
reasons set forth in subparagraph (b) above are equally applicable to
this subparagraph, and, accordingly, those reasons are hereby
incorporated herein by reference.
(d) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature and purpose
of each disclosure of a record and the name and address of the
recipient. The Customs Service believes that application of this
provision to the above-listed systems of records would impair the
ability of the Customs Service and other law enforcement agencies to
conduct investigations and inquiries into civil and criminal violations
under their respective jurisdictions. Making accountings available to
violators would alert those individuals to the fact that the Customs
Service or another law enforcement authority is conducting an
investigation or inquiry into their activities, and such accountings
could reveal the geographic location of the investigation or inquiry,
the nature and purpose of the investigation or inquiry and the nature of
the information disclosed, and the dates on which that investigation or
inquiry was active. Violators possessing such knowledge would thereby
be able to take appropriate measures to avoid detection or apprehension
by altering their operations, transferring their activities to other
locations or destroying or concealing evidence which would form the
basis for prosecution or the imposition of civil sanctions.
(e) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ''maintain'' as
defined in 5 U.S.C. 552a(a)(3) includes ''collect'' and ''disseminate.''
At the time that information is collected by the Customs Service there
is often insufficient time to determine whether the information is
relevant and necessary to accomplish a purpose of the Customs Service;
in many cases information collected may not be immediately susceptible
to a determination of whether the information is relevant and necessary,
particularly in the early stages of investigation or inquiry, and in
many cases information which initially appears to be irrelevant and
unnecessary may, upon further evaluation or upon continuation of the
investigation or inquiry, prove to have particular relevance to an
enforcement program of the Customs Service. Further, not all violations
of law uncovered during a Customs Service investigation or inquiry fall
within the civil or criminal jurisdiction of the Customs Service; in
order to promote effective law enforcement it often becomes necessary
and desirable to disseminate information pertaining to such violations
to other law enforcement agencies which have jurisdiction over the
offense to which the information relates. The Customs Service should
not be placed in a position of having to ignore information relating to
violations of law not within its jurisdiction where that information
comes to the attention of the Customs Service through the conduct of a
lawful Customs Service civil or criminal investigation or inquiry. The
Customs Service therefore believes that it is appropriate to exempt the
above-listed systems of records from the provisions of 5 U.S.C.
552a(e)(1).
c. Specific exemptions under 5 U.S.C. 552a(k)(5). Pursuant to the
provisions of 5 U.S.C. 552a(k)(5), the Commissioner, United States
Customs Service, hereby exempts the Internal Security Records System
from the provisions of 5 U.S.C. 552a (c)(3), (d) (1), (2), (3) and (4),
(e) (1) and (4) (G), (H) and (I) and (f). The records maintained in the
exempt system of records are of the type described in 5 U.S.C.
552a(k)(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 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.''
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this exemption and are subject to all the
requirements of 5 U.S.C. 552a, except where those records contain other
information which is exempt under the provisions of 5 U.S.C. 552a(k)(2)
for the reasons stated under paragraph b. above.
The sections of 5 U.S.C. 552a from which this system of records is
exempt include in general those providing for individuals' access to or
amendment of records. When such access or amendment would cause the
identity of a confidential source to be revealed, it would impair the
future ability of the Customs Service to compile investigatory material
for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, Federal contracts, or
access to classified information.
In addition, the systems shall be exempt from 5 U.S.C. 552a(e)(1)
which requires that an agency maintain in its records only such
information about an individual as is relevant and necessary to
accomplish a purpose of the agency required to be accomplished by
statute or executive order. The Customs Service believes that to
fulfill the requirements of 5 U.S.C. 552a(e)(1) would unduly restrict
the agency in its information gathering inasmuch as it is often not
until well after the investigation that it is possible to determine the
relevance and necessity of particular information.
If any investigations within the scope of 5 U.S.C. 552a(k)(5) become
involved with civil or criminal matters, exemptions from 5 U.S.C. 552a
could also be asserted under 5 U.S.C. 552a (k)(2) or (j)(2).
31 CFR 1.36 United States Secret Service
Notice of rules exempting certain systems from requirements of the
Privacy Act
(a) In general. The Director of the U.S. Secret Service hereby
issues rules exempting the Criminal Investigation Information System of
records, the Non-Criminal Investigation Information System of records,
and the Protection Information System of records from the provisions of
certain subsections of 5 U.S.C. 552a, the Privacy Act of 1974. The
purpose of the exemptions is to maintain the confidentiality of
information compiled for the purpose of criminal, non-criminal, and
protective investigations.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552a (j) and (k) and
pursuant to the authority vested in the Director, U.S. Secret Service
by paragraph 123(c) of subpart C of part 1 of subtitle A of title 31 of
the Code of Federal Regulations.
(c) Exempted Systems.
The Criminal Investigation Information System is further described in
''Notices of Records Systems'' published by the General Services
Administration.
(1) Provisions from which exempted. The Criminal Investigation
Information System maintained by the Secret Service contains records
described in 5 U.S.C. 552a(j) and (k), the Privacy Act of 1974.
Exemptions are claimed for such described records only where appropriate
from the following provisions of the Privacy Act of 1974 subsections (c)
(3) and (4); (d) (1), (2), (3) and (4); (e) (1), (2), and (3); (e)
(4) (G), (H) and (I); (e) (5) and (8); (f) and (g) of 5 U.S.C. 552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the Privacy Act provides for the release of the disclosure
accounting required by 5 U.S.C. 552a(c) (1) and (2) to the individual
named in the record at his request. The reasons why the Criminal
Investigation Information System is exempted from the foregoing
provision are as follows:
(i) The release of accounting disclosures would put the subject of a
criminal investigation on notice of the existence of an investigation
and that he is the subject of that investigation;
(ii) It would provide the subject of a criminal investigation with an
accurate accounting of the date, nature, and purpose of each disclosure
and the name and address of the person or agency to whom the disclosure
is made. Obviously, the release of such information to the subject of a
criminal investigation would provide him with significant information
concerning the nature of the investigation and could result in impeding
or compromising the efforts of law enforcement personnel to detect and
arrest persons suspected of criminal activity;
(iii) Disclosure to the individual of the disclosure accounting after
the investigation is closed would alert the individual as to which
agencies were investigating him and would put him on notice concerning
the scope of his suspected criminal activities and could aid him in
avoiding detection and apprehension.
b. 5 U.S.C. 552a (c)(4); (d); (e)(4) (G) and (H); (f) and (g):
The foregoing provisions of the Privacy Act relate to an individual's
right to notification of the existence of records pertaining to him and
access to such records; the agency procedures relating to notification,
access and contest of the information contained in such records; and
the civil remedies available to the individual in the event of adverse
determinations by an agency concerning access to or amendment of
information contained in record systems. The reasons why the Criminal
Investigation Information System of records is exempted from the
foregoing provisions are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Criminal Investigation Information
System would inform the individual of the existence of an investigation
and that he is the subject of that investigation. This would enable the
individual to avoid detection and would further enable him to inform
co-conspirators of the fact that an investigation is being conducted;
(ii) To permit access to the records contained in the Criminal
Investigation Information System would not only inform an individual
that he is or was the subject of a criminal investigation, but would
also provide him with significant information concerning the nature of
the investigation which might enable him to avoid detection or
apprehension;
(iii) To grant access to an on-going or closed criminal investigative
file could interfere with Secret Service investigative and enforcement
proceedings, deprive co-defendants of a right to a fair trial or an
impartial adjudication, constitute an unwarranted invasion of the
personal privacy of others, disclose the identity of confidential
sources and reveal confidential information supplied by such sources,
and disclose investigative techniques and procedures, or endanger the
life or physical safety of law enforcement personnel, informants,
witnesses, and other persons supplying information to investigators.
c. 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act requires
the publication of the categories of sources of records, in each system
of records. The reasons why the Criminal Investigation Information
System of records is exempted from the foregoing provision are as
follows:
(i) Revealing sources of information could disclose investigative
techniques and procedures;
(ii) Revealing sources of information could result in retaliation and
threat of reprisal by the subject under investigation against such
sources;
(iii) Revealing sources of information could cause witnesses,
informants and others who supply information to criminal investigators
to refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality;
(iv) Revealing sources of information could result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
d. 5 U.S.C. 552a(e)(1): This provision of the Privacy Act requires
each agency to maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency. The reasons why the Criminal Investigation Information System
of records is exempted from the foregoing provisions are as follows:
(i) In a criminal investigation it is difficult to accurately
determine the relevancy and necessity of information during the process
of information gathering. Only after the information is evaluated can
the relevancy and necessity of such information be ascertained;
(ii) In a criminal investigation, the Secret Service often obtains
information concerning the violations of laws other than those within
the scope of its criminal investigative jurisdiction. In the interest
of effective law enforcement, the Secret Service should retain this
information as it may aid in establishing patterns of criminal activity,
and provide valuable leads for those law enforcement agencies charged
with enforcing other segments of the criminal law;
(iii) In interviewing persons, or obtaining other forms of evidence
during a criminal investigation, information will be supplied to the
investigator which relates to matters which are ancillary to the main
purpose of the investigation but which may relate to matters under the
investigative jurisdiction of another agency. Such information is not
readily susceptible to segregation.
e. 5 U.S.C. 552a(e)(2): This provision of the Privacy Act requires
an agency to collect information to the greatest extent practicable
directly from the subject individual when the information may result in
adverse determinations about an individual's right, benefits and
privileges under Federal programs. The reasons why the Criminal
Investigation Information System is exempted from the foregoing
provision are as follows:
(i) In certain instances, the subject of a criminal investigation is
not required to supply information to investigators as a matter of legal
right. In those instances, information relating to a subject's criminal
activities must be obtained from other sources;
(ii) A requirement that information be collected from an individual
who is the subject of a criminal investigation would put the individual
on notice of the existence of the investigation and could enable him to
avoid detection or apprehension;
(iii) In a criminal investigation it is necessary to obtain evidence
from a variety of sources other than the subject of the investigation in
order to accumulate and verify the evidence necessary for the successful
prosecution of persons suspected of violating the criminal laws.
f. 5 U.S.C. 552a(e)(3): This provision of the Privacy Act requires
an agency to inform each individual whom it asks to supply information
of the authority which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
the principal purposes for which the information is intended to be used;
the routine uses which may be made of the information; and the effect
on the individual of not providing the requested information. The
reasons why the Criminal Investigation Information System is exempted
from the foregoing provision are as follows:
(i) Informing each individual who is asked to supply information in a
criminal investigation of the information required under the foregoing
provision could inform the individual of the existence of a confidential
investigation; reveal the identity of confidential sources of
information; and endanger the life or physical safety of confidential
informants;
(ii) Informing each individual who is asked to supply information in
a criminal investigation of the information required under the foregoing
provision could result in an unwarranted invasion of the privacy of
individuals who may be the subject of a criminal investigation or who
are suspected of engaging in criminal activity;
(iii) Informing each individual who is asked to supply information in
a criminal investigation of the information required under the foregoing
provision would inhibit such individuals from supplying the requested
information and thereby present a serious impediment to the successful
investigation and prosecution of violations of the criminal law.
g. 5 U.S.C. 552a(e)(5): This provision of the Privacy Act requires
an agency to maintain all records which are used in making any
determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination. The reasons why the
Criminal Investigation Information System is exempted from the foregoing
provisions are as follows:
(i) In gathering information during the course of a criminal
investigation it is usually not possible to determine in advance what
information is accurate, relevant, timely, and complete. Seemingly
nonrelevant or untimely information may acquire new significance as an
investigation progresses;
(ii) The restrictions on the maintenance of the records contained in
the foregoing provision could impede investigators and intelligence
analysts in the exercise of their judgment and discretion in reporting
on criminal investigations;
(iii) Compliance with the records maintenance criteria listed in the
foregoing provision could require the periodic up-dating of Secret
Service criminal investigations to insure that the records maintained in
the system remain timely and complete.
h. 5 U.S.C. 552a(e)(8): This provision of the Privacy Act requires
an agency to make reasonable efforts to serve notice to an individual
when any record on such individual is made available to any person under
compulsory legal process becomes a matter of public record. The reasons
why the Criminal Investigation Information System is exempted from the
foregoing provision are as follows:
(i) The notice requirement of the foregoing provision could impede
law enforcement by revealing investigative techniques and procedures;
(ii) The notice requirement of the foregoing provision could reveal
the existence of confidential investigations to individuals who are the
subjects of such investigations.
i. The foregoing exemptions are claimed for materials maintained in
the Criminal Investigation Information System to the extent that such
materials contain information and reports described in 5 U.S.C. 552a(j)
(2). Further, records maintained in the Criminal Investigation
Information System described in 5 U.S.C. 552a(k) are exempted from
subsections (c)(3), (d) (1), (2), (3) and (4), (e)(1), (e)(4) (G), (H)
and (I) and (f) of 5 U.S.C. 552a for the reasons previously stated.
The Non-Criminal Investigation Information System is further
described in ''Notices of Records Systems'' published by the General
Services Administration.
(1) Provisions from which exempted: The Non-Criminal Investigation
Information System maintained by the Secret Service contains records
similar to those described in 5 U.S.C. 552a(k), the Privacy Act of 1974.
Exemptions are claimed for such described records where appropriate
from the following provisions of the Privacy Act of 1974: subsections
(c)(3), (d) (1), (2), (3) and (4), (e)(1), (e)(4) (G), (H) and (I) and
(f) of 5 U.S.C. 552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the Privacy Act provides for the release of the disclosure
accounting required by 5 U.S.C. 552a(c) (1) and (2) to the individual
named in the record at his request. The reasons why the Non-Criminal
Investigation Information System is exempted from the foregoing
provision are as follows;
(i) The release of accounting disclosures would put the subject of an
investigation on notice of the existence of an investigation and that he
is the subject of that investigation;
(ii) It would provide the subject of an investigation with an
accurate accounting of the date, nature, and purpose of each disclosure
and the name and address of the person or agency to whom the disclosure
is made. Obviously, the release of such information to the subject of
an investigation would provide him with significant information
concerning the nature of the investigation and could result in impeding
or compromising the efforts of law enforcement personnel to obtain
information essential to the successful conclusion of the investigation;
(iii) Disclosure to the individual of the disclosure accounting after
the investigation is closed would alert the individual as to which
agencies were investigating him; put him on notice concerning the scope
of his suspected activities and reveal investigatory techniques and the
identity of confidential informants. It could result in an invasion of
privacy of private citizens who provide information in connection with a
particular investigation.
(3) 5 U.S.C. 552a; (d), (e)(4) (G), (H) and (f): The foregoing
provisions of the Privacy Act relate to an individual's right to
notification of the existence of records pertaining to him and access to
such records and the agency procedures relating to notification, access
and contest of the information contained in such records. The reasons
why the Non-Criminal Investigation Information System of records is
exempted from the foregoing provisions are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Non-Criminal Investigation Information
System would inform the individual of the existence of an investigation
and that he is the subject of that investigation. This could enable the
individual to secrete or destroy evidence essential to the successful
completion of the investigation;
(ii) To permit access to the records contained in the Non-Criminal
Investigation System would not only inform an individual that he is or
was the subject of an investigation, but would also provide him with
significant information concerning the nature of the investigation which
might enable him to avoid detection or apprehension;
(iii) To grant access to an on-going or closed non-criminal
investigative file would interfere with Secret Service investigative and
enforcement proceedings; deprive other parties involved in the
investigations of a right to a fair trial or an impartial adjudication;
constitute an unwarranted invasion of the personal privacy of others;
disclose the identity of confidential sources and reveal confidential
information supplied by such sources; and disclose investigative
techniques and procedures.
(3) 5 U.S.C. 552a 3 (e)(4)(I). This provision of the Privacy Act
requires the publication of the categories of sources of records in each
system of records. The reasons why the Non-Criminal Investigation
Information System of records is exempted from the foregoing provision
are as follows:
(i) Revealing sources of information would disclose investigative
techniques and procedures;
(ii) Revealing sources of information would result in retaliation and
threat of reprisal by the subject under investigation against such
sources;
(iii) Revealing sources of information could cause witnesses,
informants and others who supply information to investigators to refrain
from giving such information because of fear of reprisal, or fear of
breach of promises of anonymity and confidentiality;
(iv) Revealing sources of information could result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
(4) 5 U.S.C. 552a(e)(1): This provision of the Privacy Act requires
each agency to maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency. The reasons why the Criminal Investigation Information System
of records is exempted from the foregoing provision are as follows:
(i) In a non-criminal investigation it is difficult to determine
accurately the relevancy and necessity of information during the process
of information gathering. It is only after the information is evaluated
that the relevancy and necessity of such information can be ascertained;
(ii) In a non-criminal investigative case, the Secret Service often
obtains information concerning the violation of laws other than those
within the scope of its jurisdiction. In the interest of effective law
enforcement, it is desirable that the Secret Service retain this
information since it can aid in establishing patterns of unlawful
activity and provide valuable leads for those law enforcement agencies
that are charged with enforcing other segments of the criminal,
regulatory and civil laws;
(iii) In interviewing persons, or obtaining other forms of evidence
during an investigation, information will be supplied to the
investigator which relates to matters which are ancillary to the main
purpose of the investigation but which may relate to matters under the
investigative jurisdiction of another agency. Such information is not
readily susceptible to segregation.
(5) The foregoing exemptions are claimed for records maintained in
the Non-Criminal Investigation Information System only to the extent
that such records contain materials described in subsection (k) of 5
U.S.C. 552a, the Privacy Act of 1974.
The Protection Information System is further described in ''Notices
of Records Systems'' published by the General Services Administration.
(1) Provisions from which exempted. The Protection Information
System maintained by the Secret Service contains records similar to
those described in 5 U.S.C. 552a (j) and (k), the Privacy Act of 1974.
The Protection Information System contains material relating to criminal
investigations concerned with the enforcement of criminal statutes
involving the security of persons and property. Further, this system
contains records described in 5 U.S.C. 552a(k) including, but not
limited to, classified materials and investigatory material compiled for
law enforcement purposes. There are maintained in the Protection
Information System, in addition to the categories of records described
above, records which are considered necessary to assuring the safety of
individuals protected by the Secret Service Pursuant to the provisions
of 18 U.S.C. 3056 and Pub. L. 90-331 (5 U.S.C. 522a(k)(3)). Exemptions
are claimed for the above described records only where appropriate from
the following provisions of the Privacy Act of 1974: subsections (c)(3)
and (d) (1), (2), (3) and (4); (e) (1), (2) and (3); (e)(4) (G), (H)
and (I); (e) (5) and (8); (f) and (g) of 5 U.S.C. 552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the Privacy Act provides for the release of the disclosure
accounting required by 5 U.S.C. 552a(c) (1) and (2) to the individual
named in the record at his request. The reasons why the Protection
Information System is exempted from the foregoing provision are as
follows:
(i) The release of accounting disclosures would put the subject of a
protective intelligence file on notice of the existence of an
investigation and that he is the subject of that investigation;
(ii) It would provide the subject of a protective intelligence file
with an accurate accounting of the date, nature, and purpose of each
disclosure and the name and address of the person or agency to whom the
disclosure is made. Obviously, the release of such information to the
subject of a protective intelligence file would provide him with
significant information concerning the nature of the investigation, and
could result in impeding or compromising the efforts of Secret Service
personnel to detect persons suspected of criminal activities or to
collect information necessary for the proper evaluation of persons
considered to be of protective interest;
(iii) Disclosures of the disclosure accounting after the protective
intelligence file is closed would alert the individual as to which
agencies were investigating him and would put him on notice concerning
the scope of the protective intelligence investigation and could aid him
in avoiding detection.
b. 5 U.S.C. 552a (c)(4); (d); (e)(4) (G) and (H); (f) and (g):
The foregoing provisions of the Privacy Act relate to an individual's
right to notification of the existence of records pertaining to him and
access to such records; the agency procedures relating to notification;
access and contest of the information contained in such records; and
the civil remedies available to the individual in the event of adverse
determinations by an agency concerning access to or amendment of
information contained in record systems. The reasons why the Protection
Information System of records is exempted from the foregoing provisions
are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Protection Information System would be
injurious to the protective intelligence activities of the Secret
Service if the existence of files on the subject were even acknowledged.
Granting access to the criminal and the unstable person would
necessarily lead to knowledge of the sources of Secret Service
information and could endanger other enforcement and intelligence
operations and confidential sources including co-workers, friends and
relatives of the subjects of such records;
(ii) Limitation on access to the materials contained in the
Protection Information System is considered necessary to the
preservation of the utility of intelligence files and in safeguarding
those persons the Secret Service is authorized to protect. Without such
denial of access the Protection Information System could adversely
effect in the poor quality of information available; in compromised
confidential sources; in the inability to keep track of persons of
protective interest; and from interference with Secret Service
protective intelligence activities by individuals gaining access to
protective intelligence files. Many of the persons on whom records are
maintained in the Protection Information System suffer from mental
aberrations. Knowledge of their condition and progress comes from
authorities, family members and witnesses. Many times this information
comes to the Secret Service as a result of two party conversations where
it would be impossible to hide the identity of informants. Sources of
information must be developed, questions asked and answers recorded.
Trust must be extended and guarantees of confidentiality and anonymity
must be maintained. Allowing access of information of this kind to
individuals who are the subjects of protective interest may well lead to
violence directed against an informant by a mentally disturbed
individual;
(iii) Permitting access to protective intelligence files would reveal
techniques and procedures, not only of Secret Service protective
investigations but could reveal the criteria by which protective
intelligence subjects are evaluated;
(iv) To notify an individual at his request of the existence of
records pertaining to him in the Protection Information System would
inform the individual of the existence of an investigation and that he
is the subject of protective interest. This would enable the individual
to avoid detection and would further enable him to inform
co-conspirators of the fact that an investigation is being conducted;
(v) To permit access to the records contained in the Protection
Information System would not only inform an individual that he is or was
the subject of protective interest, but would also provide him with
significant information concerning the nature of any investigation
concerning his activities;
(vi) To grant access to current or closed protective intelligence
files would interfere with Secret Service investigative and enforcement
proceedings; deprive co-defendants of a right to a fair trial or an
impartial adjudication; constitute an unwarranted invasion of the
personal privacy of others; disclose the identity of confidential
sources; reveal confidential information supplied by such sources; and
disclose investigative techniques and procedures, and endanger the life
or physical safety of law enforcement personnel, informants, witnesses,
and other persons suppling information to investigators.
c. 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act requires
the publication of the categories of sources of records in each system
of records. The reasons why the Protection Information System of
records is exempted from the foregoing provision are as follows:
(i) Revealing sources of information would disclose investigative
techniques and procedures;
(ii) Revealing sources of information would result in retaliation and
threat of reprisal by the subject of a protective intelligence file;
(iii) Revealing sources of information would cause witnesses,
informants and others who supply information to Secret Service
investigators to refrain from giving such information because of fear of
reprisal, or fear of breach of promises of anonymity and
confidentiality;
(iv) Revealing sources of information would result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
d. 5 U.S.C. 552a(e)(1): This provision of the Privacy Act requires
each agency to maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency. The reasons why the Protection Information System of records is
exempted from the foregoing provisions are as follows:
(i) In gathering protective intelligence information it is difficult
to determine accurately the relevancy and necessity of information
during the process of information gathering. It is only after the
information is evaluated that the relevancy and necessity of such
information can be ascertained;
(ii) In carrying out protective intelligence responsibilities the
Secret Service often obtains information concerning the violation of
laws other than those within the scope of its protective intelligence
jurisdiction. In the interest of effective law enforcement, it is
desirable that the Secret Service retain this information since it can
aid in establishing patterns of criminal activity and provide valuable
leads for those law enforcement agencies that are charged with enforcing
other segments of the criminal law;
(iii) During protective intelligence investigations, information will
be supplied to the investigator which relates to matters which are
ancillary to the main purpose of the investigation but which may relate
to matters under the investigative jurisdiction of another agency. Such
information is not readily susceptible to segregation.
e. 5 U.S.C. 552a(c)(2): This provision of the Privacy Act requires
an agency to collect 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 and
privileges under Federal programs. The reasons why the Protection
Information System is exempted from the foregoing provision are as
follows:
(i) In certain instances, where the protective intelligence subject
is suspected of criminal activity, he is not required to supply
information to investigators as a matter of legal right. In those
instances, information relating to a subject's criminal activities must
be obtained from other sources;
(ii) A requirement that information be collected from an individual
who is of protective interest would put the individual on notice of the
existence of the intelligence investigation and such knowledge would
enable him to avoid detection in the event that the individual attempted
to physically harm persons protected by the Secret Service;
(iii) In a protective intelligence investigation where the subject of
the investigation is suspected of engaging in criminal activities it is
necessary to obtain evidence from a variety of sources other than the
subject of the investigation in order to accumulate and verify the
evidence necessary for the successful prosecution of persons suspected
of violating the criminal laws.
f. 5 U.S.C. 552a(e)(3): This provision of the Privacy Act requires
an agency to inform each individual whom it asks to supply information
of the authority which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
the principle purposes for which the information is intended to be used;
the routine uses which may be made of the information; and the effect
on the individual of not providing the requested information. The
reasons why the Protection Information System is exempted from the
foregoing provision are as follows:
(i) Informing each individual who is asked to supply information in a
protective intelligence investigation of the information required under
the foregoing provision would inform the individual of the existence of
a confidential investigation; reveal the identity of confidential
sources of information; and endanger the life or physical safety of
confidential informants;
(ii) Informing each individual who is asked to supply information in
a protective intelligence investigation of the information required
under the foregoing provision would result in an unwarranted invasion of
the privacy of individuals who may be the subject of a criminal
investigation or who are suspected of engaging in criminal activity;
(iii) Informing each individual who is asked to supply information in
a protective intelligence investigation of the information required
under the foregoing provision would inhibit such individuals from
supplying the requested information and thereby present a serious
impediment to the success of the Secret Service in carrying out its
protective intelligence activities.
g. 5 U.S.C. 552a(e)(5): This provision of the Privacy Act requires
an agency to maintain all records which are used in making any
determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination. The reasons why the
Protection Information System is exempted from the foregoing provisions
are as follows:
(i) In gathering information during the course of a protective
intelligence investigation it is usually not possible to determine in
advance what information is accurate, relevant, timely, and complete.
Seemingly nonrelevant or untimely information may acquire new
significance as an investigation progresses;
(ii) The restrictions on the maintenance of the records contained in
the foregoing provision would impede investigators and intelligence
analysts in the exercise of their judgment and discretion in reporting
on protective intelligence subjects;
(iii) Compliance with the records maintenance criteria listed in the
foregoing provision would require the periodic up-dating of Secret
Service protective intelligence files to insure that the records
maintained in the system remain timely and complete.
h. 5 U.S.C. 552a(e)(8): This provision of the Privacy Act requires
an agency to make reasonable efforts to serve notice to an individual
when any record on such individual is made available to any person under
compulsory legal process becomes a matter of public record. The reasons
why the Protection Information System is exempted from the foregoing
provision are as follows:
(i) The notice requirement of the foregoing provision could impede
Secret Service protective efforts by revealing techniques and
procedures;
(ii) The notice requirements of the foregoing provision could reveal
the existence of confidential investigations to individuals who are the
subjects of such investigations.
i. The foregoing exemptions are claimed for materials maintained in
the Protection Information System to the extent that such materials
contain information and reports described in 5 U.S.C. 552a(j)(2).
Further, records maintained in the Protection Information System
described in 5 U.S.C. 552a(k) are to be exempted from subsections
(c)(3), (d) (1), (2), (3) and (4); (e)(1), (e)(4) (G), (H) and (I) and
(f) of 5 U.S.C. 552a for the reasons previously stated.
31 CFR 1.36 Bureau of Alcohol, Tobacco and Firearms
31 CFR 1.36 notice of systems exempt from certain provisions of the
privacy act of 1974
In accordance with 5 U.S.C. 552a (j) and (k), general notice is
hereby given of rulemaking under the Privacy Act of 1974 by the
Director, Bureau of Alcohol, Tobacco and Firearms. The Director, Bureau
of Alcohol, Tobacco and Firearms, exempts the systems of records
identified in paragraphs (a), (b) and (c) of this section from certain
provisions of the Privacy Act of 1974 as set forth in such paragraphs.
31 CFR 1.36 exemptions
(a) General exemptions. Under the provisions of 5 U.S.C. 552a(j),
the Director, Bureau of Alcohol, Tobacco and Firearms, hereby determines
that certain provisions of the Privacy Act of 1974 shall not apply to
the Treasury -- ATF Criminal Investigation Report System.
(1) The Privacy Act of 1974 creates several methods by which
individuals who are of record in this system of records may discover
information collected about their criminal activities. These methods
are as follows: subsections (e)(4)(G) and (f)(1) allow individuals to
ascertain whether their criminal activities have been recorded;
subsections (d)(1), (e)(4)(H), and (f) (2), (3) and (5) establish the
ability of individuals to gain access into the investigatory files
maintained on their criminal activities; subsections (d) (2), (3) and
(4), (e)(4)(H), and (f)(4) presuppose access and further enable
individuals to contest the contents of their criminal files; subsection
(c)(3) allows individuals to discover if other law enforcement agencies
are investigating their criminal activities and subsection (e)(4)(I)
discloses the categories of sources of records in the system. Since
these subsections are variations upon the criminal subjects' ability to
ascertain whether a Federal law enforcement agency has uncovered their
criminal misdeeds, these subsections have been grouped together for
purposes of this notice.
(A) With respect to subsections (e)(4)(G) and (f)(1), the Bureau of
Alcohol, Tobacco and Firearms believes that imposition of these
requirements would identify to individuals the fact that they are of
record, and in so doing, compromise the ability of ATF to successfully
complete an investigation into violations of law. Where individuals
have the ability to discover the location and specific character of
their investigative records in this system, they will be able to
determine the nature of the investigation, the type of surveillance
utilized and the precise stage of the investigation into their criminal
activities. When individuals can determine that the investigation into
their criminal activities has been closed, they are placed on notice
that they may safely resume their illegal conduct. For these reasons,
ATF seeks exemption of this system from subsections (e)(4)(G) and
(f)(1).
(B) With respect to subsections (d)(1), (e)(4)(H) and (f) (2), (3)
and (5), the Bureau of Alcohol, Tobacco and Firearms believes that
access into criminal investigative files poses present and future
dangers on the ability of this agency to effectively enforce the
criminal laws committed to its administration. Where individuals may
break into an ongoing criminal investigative file they discover the
collection of facts which will form the basis of their arrests.
Knowledge of these facts enables them to destroy valuable contraband or
other evidence of their activities prior to lawful seizure and thereby
prevent enforcement proceedings. The ongoing investigative file may
reveal that reasonable cause exists to believe that a crime is about to
be committed. Disclosure of these facts enable individuals with
criminal intent to either postpone the commission of their criminal acts
or relocate the scene of the crime to an alternatively acceptable
location where Federal agents will not be anticipated. After a criminal
investigation has been closed, information in the file nevertheless
reveals to the investigated subjects the techniques and procedures
utilized by a law enforcement agency. Knowledge of these investigative
techniques and procedures by individuals and groups devoted to crime
enables them to structure their future operations in such a way as to
place these activities beyond discovery until after the crime has been
committed. Thus, the ability of Federal agents to prevent crime by
apprehension of the criminals at the precise moment of commission of the
criminal act is seriously jeopardized.
Disclosure of investigative techniques and procedures could further
render the commission of the criminal act itself not susceptible to
reconstruction and tracing to its originator. Armed with a knowledge of
forensic science and the applied technology of criminal investigation
contained in their own files, individuals and groups of individuals
devoted to crime have the necessary information to develop
counter-techniques which may effectively neutralize established
investigative tools and procedures. Additionally, a closed criminal
file reveals the identities of informers and undercover agents who have
possibly risked their lives and the lives of their families by
contributing information concerning the criminal activities of
individuals and groups. Oftentimes, friends, family, neighbors and
business associates of the subject under investigation, secure in the
assured anonymity of a Federal criminal investigation, are not afraid to
furnish valuable information relating to the criminal activities of the
subjects of investigation. Where criminal subjects have access to the
confidential information in their criminal files (with or without the
identities of the sources) they can determine from the nature of the
information and by process of elimination the identity of those
individuals against whom to retaliate. This legitimate fear of reprisal
exists in the minds of neighbors, relatives, and co-workers, especially
with regard to individuals who are violence-prone or emotionally
unstable. As a direct result of this fear of discovery through access
to the investigative file, sources close to the criminal subject would
decline to be interviewed or otherwise refrain from contact with the
Bureau. This absence of information would render the Bureau unable to
comply effectively with the mandates of the statutes committed to its
administration. For these reasons, ATF seeks exemption of this system
from subsections (d)(1), (e)(4)(H) and (f) (2), (3) and (5).
(C) With respect to subsections (d) (2), (3) and (4), (e)(4)(H), and
(f)(4), which presuppose access and provide for contest of the content
of records contained in this system, the Bureau of Alcohol, Tobacco and
Firearms believes that the reasons set forth in subparagraph (B) of
paragraph (1) of this subsection are equally applicable to this
subparagraph, and are hereby incorporated by reference. For these
reasons, ATF seeks exemption of this system from subsections (d) (2),
(3) and (4), (e)(4)(H) and (f)(4).
(D) With respect to subsection (c)(3) which provides for making the
accounting of disclosures available to the requester, the Bureau of
Alcohol, Tobacco and Firearms believes that access to this accounting by
a subject under investigation would impair the ability of other law
enforcement agencies to utilize information developed by ATF for their
investigations into violations of criminal laws not enforced by ATF.
Where the interstate criminal activities of individuals or groups span
the jurisdictions of several law enforcement agencies, information will
be shared by these agencies in their attempts to bring these violators
to justice. Disclosure of the accounting will alert such individuals to
which agencies are conducting investigations, the geographic locations
of such investigations, the nature and purpose of the investigations,
and the date during which the investigation received information
maintained by ATF. Supplied with this information, individuals or
groups may ascertain which of their criminal activities have been
discovered and the law enforcement agencies which are in current
pursuit. For these reasons, ATF seeks exemption of this system from
subsection (c)(3).
(E) With respect to subsection (e)(4)(I), which requires publication
of the categories of sources for a record system, the Bureau of Alcohol,
Tobacco and Firearms believes that imposition of subsection (e)(4)(I)
upon this system would reveal investigative techniques and procedures.
For this reason, ATF seeks exemption of this system from subsection
(e)(4)(I).
(2) The Privacy Act of 1974 provides, at subsection (e)(1), that an
agency may maintain only such information about an individual as is
relevant and necessary to accomplish a purpose of the agency required to
be accomplished by a statute or executive order of the President. The
term ''maintain'' is defined in the Privacy Act to include the initial
collection of information. The Bureau of Alcohol, Tobacco and Firearms
believes that exemption of this system from subsection (e)(1) is
appropriate because not all violations uncovered in an investigation are
capable of enforcement by ATF. Where individuals or groups are engaged
in a multiplicity of criminal violations, this evidence should be
recorded by ATF and transferred to the appropriate law enforcement
agencies. This Bureau should not and cannot legally ignore violations
of law uncovered in a lawful ATF investigation merely because ATF has no
authority to bring the criminal to justice for these non-ATF violations.
Where other agencies uncover evidence of ATF violations, this
information must be susceptible to collection and preservation by that
agency for subsequent use by ATF. Where an investigation by ATF
uncovers only ATF violations, information may initially appear
irrelevant and unnecessary when collected. However, a later stage of
the investigation may uncover additional facts which when placed
together with the initially collected irrelevant information, form the
basis for reasonable cause to believe that additional suspects are
involved or additional crimes have been or are being committed. Until
all facts have been gathered and evaluated at the conclusion of the
investigation it may not be possible to determine relevancy and
necessity. For these reasons, ATF seeks exemption of this system from
subsection (e)(1).
(3) The Privacy Act of 1974 provides at subsection (e)(2) that an
agency must collect information to the greatest extent practicable
directly from the subject individual. The Bureau of Alcohol, Tobacco
and Firearms believes that this system should be exempted from
subsection (e)(2) because most information gathered upon a subject under
investigation is obtained from third parties and witnesses. There is a
minimal degree of practicability in contacting a criminal subject for
purposes of seeking information as to his criminal activities. Such
contact alerts the individual that he is under investigation and affords
him opportunity to conceal his criminal activities or otherwise avoid
detection or apprehension. In certain instances, the subject of a
criminal investigation is not required to supply information to
investigators as a matter of legal right. Law violators seldom give
self-incriminatory information about their involvement in criminal
activities. In those instances, information relating to the subject's
criminal activities must be obtained from other sources. For these
reasons, ATF seeks exemption of this system from subsection (e)(2).
(4) The Privacy Act of 1974 provides at subsection (e)(3) that each
individual must be informed of the authority, principle purposes, and
routine uses and effects on the individual when requested to provide
information. The Bureau of Alcohol, Tobacco and Firearms believes that
this system should be exempted from subsection (e)(3). When information
is obtained by undercover officers, conformity to (e)(3) discloses their
identity as agents of a law enforcement authority and thereby impairs
their physical safety as well as the successful conclusion of the
investigation. When presented with a written statement complying with
(e)(3) by special agents acting in undercover capacity, the individual
may not thereafter be completely open with such agents. For these
reasons, ATF seeks exemption of this system from subsection (e)(3).
(5) The Privacy Act of 1974 provides at subsection (e)(5) that an
agency maintain all records which are used in making any determination
about an individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination. Since the law defines ''maintain'' to
include collection of information, the Bureau of Alcohol, Tobacco and
Firearms believes that this system should be exempt from subsection
(e)(5) because it would prohibit the initial collection of any data not
shown to be accurate, relevant, timely or complete at the moment of its
collection. In gathering information during the course of a criminal
investigation it is not feasible or possible to determine completeness,
accuracy, timeliness or relevancy prior to collection of the
information. Facts are first gathered then placed into a cohesive order
which objectively proves or disproves criminal behavior on the part of a
suspect. Seemingly irrelevant, untimely and incomplete information when
gathered may acquire new significance as an investigation progresses.
The restrictions of (e)(5) could impede special agents in the
preparation of a complete investigative report. For these reasons, ATF
seeks exemption of this system from subsection (e)(5).
(6) The Privacy Act of 1974 provides, at subsection (e)(8), that an
agency must make reasonable efforts to serve notice on an individual
when his records are made available pursuant to compulsory legal
process, when such process becomes a matter of public record. Such a
requirement would impose unnecessary and unusual administrative demands
on the Bureau of Alcohol, Tobacco and Firearms by requiring a record
system to follow up on legal process emanating from court proceedings to
which ATF is not a party. The Bureau of Alcohol, Tobacco and Firearms
believes the duty of serving notice in such a case properly rests with
the moving party who seeks disclosure by utilization of the court's
compulsory legal process. Further, in most cases where an individual's
criminal records have been disclosed pursuant to compulsory legal
process, the individual who is the subject of the records will be a
party to the proceedings and will have actual notice of the disclosure.
For these reasons, ATF seeks exemption of this system from subsection
(e)(8).
(7) The Privacy Act of 1974 provides, at subsection (g), civil
remedies for agency failure to grant access, agency failure to amend
records, agency failure to maintain accurate, relevant, timely and
complete records and agency failure to comply with provisions of the
Privacy Act which have an adverse effect on an individual. The Bureau
of Alcohol, Tobacco and Firearms believes that this system should be
exempted from subsection (g) because the civil remedies provided in this
subsection apply to provisions in the Privacy Act which have been
exempted from application to this system by virtue of this notice.
Since these provisions are not intended to apply to this system, there
should be no corresponding civil penalty for failure to comply with the
requirements of these sections due to exercise of the exemption
authority. ATF believes that application of this subsection to this
system of records would impair ATF's ability to conduct investigations
into the criminal behavior of suspects because every step in the
investigation process in which information is compiled for prosecution
purposes would be susceptible to civil action under this subsection.
For these reasons, ATF seeks exemption of this system from subsection
(g).
(b) Specific exemptions under section 552a(k)(2). Under the
provisions of 5 U.S.C. 552a(k)(2), the Director, Bureau of Alcohol,
Tobacco and Firearms, hereby determines that certain provisions of the
Privacy Act of 1974 shall not apply to the Treasury -- ATF -- Regulatory
Enforcement Record System, the Treasury -- ATF -- Technical and
Scientific Services Record System, and that portion of the Treasury --
ATF -- Internal Security Record System relating to ''conduct of
employees'' and ''integrity of employees'' records.
(1) The Privacy Act of 1974 creates several methods by which
individuals may discover records containing information on such
individuals and consisting of investigatory material compiled for law
enforcement purposes. These methods are as follows: subsection (c)(3)
allows individuals to discover if other agencies are investigating such
individuals; subsections (d)(1), (e)(4)(H), and (f) (2), (3) and (5)
establish the ability of individuals to gain access to investigatory
material compiled on such individuals; subsections (d) (2), (3) and
(4), (e)(4)(H) and (f)(4) presuppose access and enable individuals to
contest the contents of investigatory material compiled on these
individuals; and subsections (e)(4)(G) and (f)(1) allow individuals to
determine whether or not they are under investigation. Since these
subsections are variations upon the individuals' ability to ascertain
whether their civil or criminal misdeeds have been discovered, these
subsections have been grouped together for purposes of this notice.
(A) The Bureau of Alcohol, Tobacco and Firearms believes that
imposition of the requirements of subsection (c) (3), requiring
accounting of disclosures be made available to individuals, would impair
the ability of ATF and other investigative entities to conduct
investigations of alleged or suspected violations of civil or criminal
laws. Making the accounting of disclosures available identifies to
individuals which investigative entities are investigating the
individuals, the nature of the violations of which they are suspected,
and the purpose for the exchange of information. Supplied with this
information, the individuals concerned would be able to alter their
ongoing and future illegal activities, conceal or destroy evidentiary
materials and documents, and otherwise seriously impair the successful
completion of investigations. Further, where individuals learn the
geographic location and identity of the investigative entities which are
interested in them, such individuals are able to move the site of their
illegal activities or become secure in the knowledge that their illegal
activities have not been detected in particular geographic locations.
For these reasons, ATF seeks an exemption from the requirements of
subsection (c)(3).
(B) With respect to subsections (d) (1), (e)(4)(H), and (f) (2), (3)
and (5), the Bureau of Alcohol, Tobacco and Firearms believes that
access into investigatory material would prevent the successful
completion of ongoing investigations. Individuals who gain access to
investigatory material compiled on them discover the nature and extent
of the violations of civil or criminal laws which they are suspected or
alleged to have committed. By gaining access, such individuals also
learn the facts developed during an investigation. Knowledge of the
facts and the nature and extent of the suspected or alleged violations
enables these individuals to destroy materials or documents which would
have been used as evidence against them. In addition, knowledge of the
facts and the suspected violations gives individuals, who are committing
ongoing violations or who are about to commit violations of civil or
criminal laws, the opportunity to temporarily postpone the commission of
the violations or to effectively disguise the commission of these
violations. Access to material compiled on investigated individuals
reveals investigative techniques and the procedures followed in
conducting investigations. Disclosure of these techniques and
procedures enables individuals who intend to violate civil or criminal
laws to structure their future illegal activities in such a way that
they escape detection. Investigative material may contain the identity
of confidential sources of information. Individuals who gain access to
investigatory material compiled on them learn the identity of these
confidential sources. Even where the name of the source is not
revealed, investigated individuals may learn the identity of
confidential sources by the process of elimination or by the very nature
of the information contained in the files. Where the identity of
confidential sources has been revealed, they may be subject to various
forms of reprisal. If confidential sources of information are subjected
to reprisals or the fear of reprisals, they would become reluctant to
provide information necessary to identify or prove the guilt of
individuals who violate civil or criminal laws. Without the information
that is often supplied by confidential sources, the ability of
investigative entities would be seriously impaired. For the reasons
stated in this paragraph, ATF seeks exemption from the requirements of
subsections (d)(1), (e)(4)(H), and (f) (2), (3) and (5).
(C) With respect to subsections (d) (2), (3) and (4), (e) (4) (H),
and (f) (4), the Bureau of Alcohol, Tobacco and Firearms believes that
the imposition of these requirements, which presuppose access and
provide for amending records, would impair ATF's ability to conduct
investigations for the same reasons stated in the preceding paragraph
(b)(1)(B), and are incorporated by reference herein. Therefore, ATF
seeks exemption from the requirements of subsections (d) (2), (3) and
(4), (e)(4)(H), and (f)(4).
(D) With respect to subsections (e) (4)(G) and (f)(1), the Bureau of
Alcohol, Tobacco and Firearms believes that informing individuals that
they are of record would impair the ability of ATF to successfully
complete the investigations of suspected or alleged violators of civil
or criminal laws. Individuals, who are informed that they have been
identified as suspected violators of civil or criminal laws, are given
the opportunity to destroy evidence or other material needed to prove
the alleged violations. Such individuals would also be able to impair
investigations by temporarily suspending ongoing illegal activities or
by restructuring intended illegal activities. Informing individuals
that they are of record in a particular system of records enables such
individuals to learn the nature of the investigation, the character of
the investigatory material and the specific civil or criminal laws they
are suspected of violating. For these reasons, ATF seeks exemption from
the requirements of subsections (e)(4)(G) and (f)(1).
(2) Subsection (e)(1) of the Privacy Act of 1974 requires that ATF
maintain in its records only information that is relevant and necessary
to accomplish a purpose of ATF required to be accomplished by statute or
by executive order of the President. The Bureau of Alcohol, Tobacco and
Firearms believes that imposition of such requirement would seriously
impair the ability of ATF and other investigative entities to
effectively investigate suspected or alleged violations of civil or
criminal laws. Where individuals are engaged in a broad variety of
violations, if ATF were only to collect information necessary and
relevant to laws under ATF's jurisdiction, ATF would be unable to
perform one of its functions, i.e., working with other governmental
agencies which have similar jurisdictional concerns. Additionally, it
is often impossible to determine whether or not information is relevant
and necessary until the investigation is completed. When initially
collected, information may appear irrelevant or immaterial. However,
when this information is placed together with additional data gathered
at a later stage of the investigation, the initially collected
irrelevant information may form the basis for reasonable cause to
believe additional violations of law are present or additional suspects
are involved. Until all facts have been gathered and evaluated it may
not be possible to determine relevancy and materiality. For these
reasons, ATF seeks an exemption from the requirement of subsection
(e)(1).
(c) Specific exemptions under section 552a (k)(5). The Director,
Bureau of Alcohol, Tobacco and Firearms exempts under section (k) of the
Privacy Act of 1974, 5 U.S.C. 552a, that portion of the Treasury -- ATF
-- Internal Security Record System relating to ''security clearances for
employees'' records, and the Treasury -- ATF -- Personnel Record System
from sections (c)(3), (d) (1) through (4), (e)(1), (e)(4)(G) through
(e)(4)(I), and (f) of the Act. The records maintained in the exempt
systems of records are of the type described in section (k)(5) of the
Act: 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 the effective
date of this section, under an implied promise that the identity of the
source would be held in confidence.
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this proposed exemption and are subject to all the
requirements of the Privacy Act.
The sections of the Act from which this system of records are exempt
are in general those providing for individual access to records. When
such access would cause the identity of a confidential source to be
revealed, it would impair the future ability of the Treasury Department
to compile investigatory material for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information.
In addition, the systems are exempt from section (e)(1) which
requires that the agency maintain in its records only such information
about an individual as is relevant and necessary to accomplish a
statutory or executively ordered purpose. The Director finds that to
fulfill the requirements of section (e) (1) would unduly restrict the
agency in its information gathering inasmuch as it is often not until
well after the investigation that it is possible to determine the
relevance and necessity of particular information.
If any investigations within the scope of section (k)(5) become
involved with civil or criminal matters, exemptions from the Act could
also be asserted under sections (k)(2) or (j)(2).
(d) Application of exemptions to records exempt in whole or in part.
(1) When an individual requests records about himself which have been
exempted from individual access pursuant to 5 U.S.C. 552a(j) or which
have been compiled in reasonable anticipation of a civil action or
proceeding in either a court or before an administrative tribunal, the
Bureau of Alcohol, Tobacco and Firearms will neither confirm nor deny
the existence of the record but shall advise the individual only that no
record available to him pursuant to the Privacy Act of 1974 has been
identified.
(2) When there is a request for information which has been classified
by ATF pursuant to Executive Order 11652 and Treasury Order 160, ATF
will review the information to determine whether it continues to warrant
classification under the criteria of sections 1 and 5 (B), (C), (D), and
(E) of the Executive Order. Information which no longer warrants
classification under these criteria shall be declassified. After
declassification, the information shall be made available to the
individual, unless an exemption is claimed. If the information
continues to warrant classification, the provisions of EO 11652 shall
apply.
(3) Requests for information which have been exempted from disclosure
pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the manner
provided in paragraph (d)(1) of this section unless a review of the
information indicates that the information has been used to deny the
individual any right, privilege, or benefit for which he is eligible or
to which he would otherwise be entitled under federal law. In that
event, the individual shall be advised of the existence of the
information and shall be provided the information except to the extent
it 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, under an
implied promise that the identity of the source would be held in
confidence.
(4) Information compiled as part of an employee background
investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5)
shall be made available to an individual upon request except to the
extent it 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, under an implied promise that the identity of the source would be
held in confidence.
(5) Even though the exemptions described in paragraphs (a), (b) and
(c) of this section may be fully applicable, the Bureau may, if not
precluded by law, elect under the circumstances of a particular case not
to apply the exemption; or to exempt only a part. The fact that the
exemption is not applied by the Bureau in a particular case has no
precedential significance as to the application of the exemption to such
matter in other cases. It is merely an indication that in the
particular case involved, the Bureau finds no compelling necessity for
applying the exemption to such matter. Where the Bureau has elected not
to apply an exemption, in whole or in part, Appendix E of 31 CFR part 1,
subpart C, relating to ATF's notice, access and amendment procedures
shall apply to the records requested only to the extent that the
exemption was not asserted.
31 CFR 1.36 Bureau of Engraving and Printing, Department of the
Treasury
(a) In general. The Director of the Bureau of Engraving and Printing
exempts the Office of Security Investigative Files from the provisions
of certain subsections of 5 U.S.C. 552a, the Privacy Act of 1974. The
purpose of the exemptions is to maintain the confidentiality of
information compiled for the purpose of criminal, non-criminal, employee
suitability and security investigations.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552a(k) and pursuant
to the authority vested in the Director, Bureau of Engraving and
Printing.
(c) Exempted system. Bureau of Engraving and Printing, Office of
Security, Investigative Files.
(1) Provisions from which exempted. The Investigative Files
maintained by the Office of Security contain records described in 5
U.S.C. 552a(k)(2), the Privacy Act of 1974. Exemptions will be claimed
for such described records only where appropriate from the following
provisions of the Privacy Act of 1974: Subsections (c)(3); (d) (1),
(2), (3), (4); (e)(1); (e)(4) (G), (H), and (I); and (f) of 5 U.S.C.
552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the Privacy Act provides for the release of the disclosure
accounting required by 5 U.S.C. 552a(c) (1) and (2) to the individual
named in the Investigative Files. The reasons why these files are
exempted from the foregoing provision are as follows:
(i) The release of accounting disclosures would put the subject of a
security investigation on notice of the existence of an investigation
and that he is the subject of that investigation;
(ii) It would provide the subject of an investigation with an
accurate accounting of the date, nature, and purpose of each disclosure
and the name and address of the person or agency to whom the disclosure
is made. Obviously, the release of such information to the subject of a
security investigation would provide him with significant information
concerning the nature of the investigation and could result in impeding
or compromising the efforts of Bureau Security personnel to detect and
report persons suspected of illegal, unlawful, or unauthorized activity;
(iii) Disclosure to the individual of the disclosure accounting after
the investigation is closed would alert the individual as to which
agencies were investigating him and would put him on notice concerning
the scope of his suspected improper activities and could aid him in
avoiding detection and apprehension.
b. 5 U.S.C. 552a(d) (1), (2), (3), (4); (e)(4) (G) and (H); and
(f): The foregoing provisions of the Privacy Act relate to an
individual's right to notification of the existence of records
pertaining to him and access to such records; the agency procedures
relating to notification, access and contest of the information
continued in such records. The reasons why the Investigative Files are
exempted from the foregoing provisions are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Investigative Files would inform the
individual of the existence of an investigation and that he is the
subject of that investigation. This would enable the individual to
avoid detection and would further enable him to inform co-conspirators
of the fact that an investigation is being conducted;
(ii) To permit access to the records contained in the Investigative
Files would not only inform an individual that he is or was the subject
of a security investigation, but would also provide him with significant
information concerning the nature of the investigation which might
enable him to avoid detection or apprehension;
(iii) To grant access to an on-going or closed investigative file
could interfere with Office of Security investigative proceedings,
disclose the identity of confidential sources and reveal confidential
information supplied by such sources, and disclose investigative
techniques and procedures, or endanger the life or physical safety of
Office of Security personnel, informants, witnesses, and other persons
supplying information to investigators.
c. 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act requires
the publication of the categories of sources of records in each system
of records. The reasons why the Investigative Files are exempted from
the foregoing provision are as follows:
(i) Revealing sources of information could disclose investigative
techniques and procedures;
(ii) Revealing sources of information could result in retaliation and
threat of reprisal by the subject under investigation against such
sources;
(iii) Revealing sources of information could cause witnesses,
informants and others who supply information to Office of Security
investigators to refrain from giving such information because of fear of
reprisal, or fear of breach of promises of anonymity and
confidentiality;
(iv) Revealing sources of information could result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
d. 5 U.S.C. 552a(e)(1): This provision of the Privacy Act requires
each agency to maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency. The reasons why the Investigative Files are exempted from the
foregoing provision are as follows:
(i) In a security investigation it is difficult to determine
accurately the relevancy and necessity of information during the process
of information gathering. It is only after the information is evaluated
that the relevancy and necessity of such information can be ascertained;
(ii) In a security investigation, the Office of Security often
obtains information concerning the violation of laws other than those
within the scope of its responsibilities. In the interest of effective
law enforcement, it is desirable that the Office of Security retain this
information since it can aid in establishing patterns of criminal
activity and provide valuable leads for those law enforcement agencies
that are charged with enforcing other segments of the criminal law;
(iii) In interviewing persons, or obtaining other forms of evidence
during a criminal investigation, information will be supplied to the
investigator which relates to matters which are ancillary to the main
purpose of the investigation but which may relate to matters under the
investigative jurisdiction of another agency. Such information is not
readily susceptible to segregation.
e. The foregoing exemptions are claimed for materials maintained in
the Investigative Files to the extent that such materials contain
information and reports described in 5 U.S.C. 552a(k)(2).
The Bureau of Engraving and Printing exempts under section (k) of the
Privacy Act of 1974, 5 U.S.C. 552a, the Bureau's Personnel Security
Files and Personnel Security Files and Indices from sections (c)(3),
(d), (e)(1), (e)(4)(G) through (e)(4)(I), and (f) of the Act. The
records maintained in the exempt systems of records are of the type
described in section (k)(5) of the Act:
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 the 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.
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this exemption and are subject to all the
requirements of the Privacy Act.
The sections of the Act from which this system of records are exempt
are in general those providing for individual access to records. When
such access would cause the identity of a confidential source to be
revealed, it would impair the future ability of the Treasury Department
to compile investigatory material for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information.
In addition, the systems are exempt from section (e)(1) which
requires that the agency maintain in its records only such information
about an individual as is relevant and necessary to accomplish a
statutory or executively ordered purpose. The Director finds that to
fulfill the requirements of section (e)(1) would unduly restrict the
agency in its information gathering inasmuch as it is often not until
well after the investigation that it is possible to determine the
relevance and necessity of particular information.
If any investigations within the scope of section (k)(5) become
involved with civil and criminal matters, exemptions from the Act should
also be asserted under sections (k) (2) or (j) (2).
31 CFR 1.36 Bureau of the Mint
(a) In general. The Director of the Mint exempts investigatory files
on theft of Mint property and examination reports of coins forwarded to
the Mint by the U.S. Secret Service from certain subsections of 5 U.S.C.
552a, the Privacy Act of 1974. The purpose of the exemption is to
maintain the confidentiality of investigatory material compiled for law
enforcement purposes.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552(a)(k)(2), and
pursuant to the authority vested in the Director of the Mint by
paragraph 1.23(c) of subpart C of part 1 of subtitle A of title 31 of
the Code of Federal Regulations.
(c) Name of systems. Examination Reports of Coins Forwarded to Mint
from U.S. Secret Service and Investigatory Files on Theft of Mint
Property.
(d) Provisions from which exempted. These two systems consist in
large part of records generated by the U.S. Secret Service in connection
with its responsibilities to enforce various criminal laws. Those
records are described in 5 U.S.C. 552a(j) and are exempted from various
provisions of the Privacy Act of 1974 by the Director of the U.S. Secret
Service. To a lesser extent, these two systems also contain records
generated and compiled by the Bureau of the Mint in assisting the U.S.
Secret Service in its law enforcement efforts. Those records are
described in 5 U.S.C. 552a(k)(2), the Privacy Act of 1974. Exemptions
will be claimed for such records only where appropriate from the
following provisions, subsections (c)(3), (d), (e)(1), (e)(4) (G), (H),
and (I) and (f) of 5 U.S.C. 552a.
(e) Reasons for claimed exemptions. Those provisions of the Privacy
Act would otherwise require the Bureau of the Mint to notify an
individual of investigatory material maintained in a record pertaining
to him, permit access to such record, permit request for its correction
(section 552a(d), (e)(4) (G), (H) and (f)); make available to him any
required accounting of disclosures made of the record (section
552a(c)(3)), publish the sources of records in the system (section
552a(e)(4) (I)); and screen records to insure that there is maintained
only such information about an individual as is relevant to accomplish a
required purpose of the Bureau (section 52a(e)(1)). Disclosure to an
individual of investigatory material pertaining to him would hamper law
enforcement by prematurely disclosing the knowledge of illegal
activities and the evidentiary bases for possible enforcement actions.
Furthermore, the disclosure of certain investigatory material compiled
for law enforcement purposes may disclose investigative techniques and
procedures, so that future law enforcement efforts would be hindered.
Access to an accounting of disclosures of such records would have a
similar detrimental effect on law enforcement. Accordingly, the
Director of the Mint finds that the public interest and public policy in
protecting the coinage and property of the United States require
exemption from the stated sections of the Act to the extent that they
are applicable to appropriate materials in these two systems.
(a) In general. The Office of the Comptroller of the Currency
exempts the following systems of records from certain provisions of the
Privacy Act:
(1) Enforcement and Compliance Information;
(2) Federal Bureau of Investigation Report Card index;
(3) Chief Counsel's Management Information System.
The purpose of the exemption is to maintain confidentiality of data
obtained from various sources that may ultimately accomplish a statutory
or executively-ordered purpose.
(b) Authority. The authority to issue exemptions is vested in the
Office of the Comptroller of the Currency, as a constituent unit of the
Treasury Department, by 31 CFR 1.20 and 1.23(c).
(c) Exemptions under 5 U.S.C. 552a(j)(2). (1) Under 5 U.S.C.
552a(j)(2), the head of any agency may issue rules to exempt any system
of records within the agency from certain provisions of the Privacy Act
of 1974, if the agency or component that maintains the system performs
as its principal function any activities pertaining to the enforcement
of criminal laws. Components of the Office of the Comptroller of the
Currency are involved in the investigation of fraudulent or other
illegal activities as well as other sensitive matters, in order to carry
out their bank supervisory function. Exemptions will be claimed for
such records only where appropriate.
(2) To the extent that the exemption under 5 U.S.C. 552a(j)(2) does
not apply to the above named systems of records, then the exemption
under 5 U.S.C. 552a(k)(2) relating to investigatory material compiled
for law enforcement purposes is claimed for certain records in the
systems. Exemptions will be claimed for such records only where
appropriate.
(3) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(j)(2) are as follows:
5 U.S.C. 552a(c)(3) and (4)
5 U.S.C. 552a(d)(1), (2), (3), (4)
5 U.S.C. 552a(e)(1), (2), and (3)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(e)(5) and (8)
5 U.S.C. 552a(f)
5 U.S.C. 552a(g)
(d) Exemptions under 5 U.S.C. 552a(k)(2). (1) Under 5 U.S.C.
552a(k)(2), the head of any agency may issue rules to exempt any system
of records within the agency from certain provisions of the Privacy Act
of 1974 if the system is investigatory material compiled or law
enforcement purposes.
(2) To the extent that information contained in the above-named
systems has as its principal purpose the enforcement of criminal laws,
the exemption for such information under 5 U.S.C. 552a(j)(2) is claimed.
(3) Provisions of the Privacy Act of 1974 from which exemptions are
claimed under 5 U.S.C. 552a(k)(2) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d)(1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(f)
(e) Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2). (1)
5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and
purpose of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of an
investigation to the existence of the investigation and that such
persons are the subjects of that investigation. Since release of such
information to subjects of an investigation would provide the subjects
with significant information concerning the nature of the investigation,
it could result in the altering or destruction of documentary evidence,
improper influencing of witnesses, and other activities that could
impede or compromise the investigation.
(2) 5 U.S.C. 552a(c)(4), (d)(1), (2), (3), and (4), (e)(4)(G) and
(H), (f), and (g) relate to an individual's right to be notified of the
existence of records pertaining to such individual; requirements for
identifying an individual who requests access to records; the agency
procedures relating to access to records and the content of information
contained in such records; and the civil remedies available to the
individual in the event of adverse determinations by an agency
concerning access to or amendment of information contained in record
systems. These systems are exempt from the foregoing provisions for the
following reasons: To notify an individual at the individual's request
of the existence of records in an investigative file pertaining to such
individual or to grant access to an investigative file could: interfere
with investigative and enforcement proceedings; interfere with
co-defendants' rights to a fair trial; constitute an unwarranted
invasion of the personal privacy of others; disclose the identity of
confidential sources and reveal confidential information supplied by
these sources; or disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories
of sources of records in each system of records. The application of
this provision could disclose investigative techniques and procedures
and cause sources to refrain from giving such information because of
fear of reprisal, or fear of breach of promises of anonymity and
confidentiality. This would compromise the ability to conduct
investigations, and to identify, detect, and apprehend violators.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. An exemption from the foregoing is needed:
(i) Because it is not possible to detect relevance or necessity of
specific information in the early stages of a criminal or other
investigation.
(ii) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance can be established.
(iii) In any investigation the Comptroller of the Currency may obtain
information concerning violations of laws other than those within the
scope of its jurisdiction. In the interest of effective law
enforcement, the Comptroller of the Currency should retain this
information as it may aid in establishing patterns of criminal activity,
and provide leads for those law enforcement agencies charged with
enforcing other segments of criminal or civil law.
(iv) In interviewing persons, or obtaining other forms of evidence
during an investigation, information may be supplied to the investigator
which relates to matters incidental to the main purpose of the
investigation but which may relate to matters under the investigative
jurisdiction of another agency. Such information cannot readily be
segregated.
(5) 5 U.S.C. 552a(e)(2) requires an agency to collect 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, and privileges under Federal programs.
The application of the provision would impair investigations for the
following reasons:
(i) In certain instances the subject of an investigation cannot be
required to supply information to investigators. In those instances,
information relating to a subject's illegal acts, violations of rules of
conduct, or any other misconduct, etc., must be obtained from other
sources.
(ii) Most information collected about an individual under
investigation is obtained from third parties such as witnesses and
informers. It is not feasible to rely upon the subject of the
investigation as a source for information regarding his activities.
(iii) The subject of an investigation will be alerted to the
existence of an investigation if an attempt is made to obtain
information from the subject. This would afford the individual the
opportunity to conceal any criminal activities in order to avoid
apprehension.
(iv) In any investigation it is necessary to obtain evidence from a
variety of sources other than the subject of the investigation in order
to verify the evidence necessary for successful litigation.
(6)(i) 5 U.S.C. 552a(e)(3) requires that an agency must inform the
subject of an investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether
disclosure of the information is mandatory or voluntary,
(B) The purposes for which the information is intended to be used,
(C) The routine uses which may be made of the information, and
(D) The effects on the subject, if any, of not providing the
requested information.
(ii) The reasons for exempting these systems of records from the
foregoing provision are as follows:
(A) The disclosure to the subject of the investigation as stated in
paragraph (e)(6)(i)(B) would provide the subject with substantial
information relating to the nature of the investigation and could impede
or compromise the investigation.
(B) If the subject were informed as required by this provision, it
could seriously interfere with information-gathering activities by
requiring disclosure of sources of information and, therefore, impairing
the successful conclusion of the investigation.
(C) Individuals may be contacted during preliminary
information-gathering in investigations before any individual is
identified as the subject of an investigation. Informing the individual
of the matters required by this provision would hinder or adversely
affect any present or subsequent investigations.
(7) 5 U.S.C. 552a(e)(5) requires that records be maintained with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in making any
determination about an individual. Since the law defines ''maintain''
to include the collection of information, complying with this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment of its collection. In
gathering information during the course of an investigation it is not
possible to determine this prior to collection of the information.
Facts are first gathered and then placed in a logical order which
objectively proves or disproves suspected behavior on the part of the
suspect. Material which may seem unrelated, irrelevant, incomplete,
untimely, etc., may take on added meaning as an investigation
progresses. The restrictions in this provision could interfere with the
preparation of a complete investigative report.
(8) 5 U.S.C. 552a(e)(8) requires an agency to make 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. The notice requirement of
this provision could prematurely reveal an ongoing investigation to the
subject of the investigation.
(f) Documents exempted. Exemption will be claimed for certain
records only where appropriate under the above provisions.
(40 FR 45692, Oct 2, 1975, as amended at 44 FR 7141, Feb. 6, 1979;
44 FR 42189, July 19, 1979; 45 FR 13455, Feb. 29, 1980; 48 FR 21945,
May 16, 1983; 48 FR 48460, Oct. 19, 1983; 52 FR 11990, Apr. 14, 1987;
56 FR 12447, Mar. 26, 1991)
31 CFR 1.36 Appendix A -- Departmental Offices
31 CFR 1.36 Pt. 1, Subpt. C, App. A
1. In general. This appendix applies to the Departmental Offices as
defined in 31 CFR part 1, subpart C, 1.20. It sets forth specific
notification and access procedures with respect to particular systems of
records, identifies the officers designated to make the initial
determinations with respect to notification and access to records, the
officers designated to make the initial and appellate determinations
with respect to requests for amendment of records, the officers
designated to grant extensions of time on appeal, the officers with whom
''Statement of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e)(4) and (11) and published
annually by the Office of the Federal Register in ''Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Departmental Offices, will be made by the head of
the organizational unit having immediate custody of the records
requested, or the delegate of such official. This information is
contained in the appropriate system notice in the ''Privacy Act
Issuances'', published annually by the Office of the Federal Register.
Requests for information and specific guidance on where to send requests
for records should be addressed to:
Privacy Act Request, DO, Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220.
Requests may be delivered personally to the Main Treasury Building,
Room 5030, 1500 Pennsylvania Avenue NW., Washington, D.C.
3. Requests for amendments of records. Initial determinations under
31 CFR 1.27(a) through (d) with respect to requests to amend records for
records maintained by the Departmental Offices will be made by the head
of the organization or unit having immediate custody of the records or
the delegate of such official. Requests for amendment of records should
be addressed as indicated in the appropriate system notice in ''Privacy
Act Issuances'' published by the Office of the Federal Register.
Requests for information and specific guidance on where to send these
requests should be addressed to: Privacy Act Amendment Request, DO,
Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington,
DC 20220.
4. Administrative appeal of initial determination refusing to amend
record. Appellate determinations under 31 CFR 1.27(e) with respect to
records of the Departmental Offices, including extensions of time on
appeal, will be made by the Secretary, Deputy Secretary, Under
Secretary, General Counsel, or Assistant Secretary having jurisdiction
over the organizational unit which has immediate custody of the records,
or the delegate of such official, as limited by 5 U.S.C. 552a(d) (2) and
(3). Appeals made by mail should be addressed as indicated in the
letter of initial decision or to:
Privacy Act Amendment Request, DO Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220. Appeals may be
delivered personally to the Library, Room 5030, Main Treasury Building,
1500 Pennsylvania Avenue, NW., Washington, DC.
5. Statements of disagreement. ''Statements of Disagreement'' as
described in 31 CFR 1.27(e)(4) shall be filed with the official signing
the notification of refusal to amend at the address indicated in the
letter of notification within 35 days of the date of notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
such official and shall be delivered to the following location:
General Counsel, Department of the Treasury, Room 3000, Main Treasury
Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of systems
of records required to be published by the Office of the Federal
Register in the publication entitled ''Privacy Act Issuances'', as
specified in 5 U.S.C. 552a (f). Any specific requirements for access,
including identification requirements, in addition to the requirements
set forth in 31 CFR 1.26 and 1.27 and 8 of this appendix, and locations
for access are indicated in the notice for the pertinent system.
8. Verification of identity. An individual seeking notification or
access to records, or seeking to amend a record, must satisfy one of the
following identification requirements before action will be taken by the
Departmental Offices on any such request:
(i) An individual seeking notification or access to records in
person, or seeking to amend a record in person, may establish identity
by the presentation of a single official document bearing a photograph
(such as a passport or identification badge) or by the presentation of
two items of identification which do not bear a photograph but do bear
both a name and signature (such as a driver's license or credit card).
(ii) An individual seeking notification or access to records by mail,
or seeking to amend a record by mail, may establish identity by a
signature, address, and one other identifier such as a photocopy of a
driver's license or other official document bearing the individual's
signature.
(iii) Notwithstanding subdivisions (i) and (ii) of this subparagraph,
an individual seeking notification or access to records by mail or in
person, or seeking to amend a record by mail or in person, who so
desires, may establish identity by providing a notarized statement,
swearing or affirming to such individual's identity and to the fact that
the individual understands the penalties provided in 5 U.S.C. 552a(i)(3)
for requesting or obtaining access to records under false pretenses.
Notwithstanding subdivision (i), (ii), or (iii) of this subparagraph,
a designated official may require additional proof of an individual's
identity before action will be taken on any request, if such official
determines that it is necessary to protect against unauthorized
disclosure of information in a particular case. In addition, a parent
of any minor or a legal guardian of any individual will be required to
provide adequate proof of legal relationship before such person may act
on behalf of such minor or such individual.
31 CFR 1.36 Appendix B -- Internal Revenue Service
31 CFR 1.36 Pt. 1, Subpt. C, App. B
1. Purpose. The purpose of this section is to set forth the
procedures that have been established by the Internal Revenue Service
for individuals to exercise their rights under the Privacy Act of 1974
(88 Stat. 1896) with respect to systems of records maintained by the
Internal Revenue Service, including the Office of the Chief Counsel.
The procedures contained in this section are to be promulgated under the
authority of 5 U.S.C. 552a(f). The procedures contained in this section
relate to the following:
(a) The procedures whereby an individual can be notified in response
to a request if a system of records named by the individual contains a
record pertaining to such individual (5 U.S.C. 552a(f)(1)).
(b) The procedures governing reasonable times, places, and
requirements for identifying an individual who requests a record of
information pertaining to such individual before the Internal Revenue
Service will make the record or information available to the individual
(5 U.S.C. 552a (f)(2)).
(c) The procedures for the disclosure to an individual upon a request
of a record of information pertaining to such individual, including
special procedures for the disclosure to an individual of medical
records, including psychological records. (5 U.S.C. 552a (f)(3)).
(d) The procedures for reviewing a request from an individual
concerning the amendment of any record or information pertaining to the
individual, for making a determination on the request, for an appeal
within the Internal Revenue Service of an initial adverse agency
determination, and for whatever additional means may be necessary for
individuals to be able to exercise fully their right under 5 U.S.C. 552a
(5 U.S.C. 552a (f)(4)).
Any individual seeking to determine whether a system of records
maintained by any office of the Internal Revenue Service contains a
record or information pertaining to such individual, or seeking access
to, or amendment of, such a record, must comply fully with the
applicable procedure contained in paragraph (3) or (4) of this section
before the Internal Revenue Service will act on the request. Neither
the notification and access (or accounting of disclosures) procedures
under paragraph (3) of this section nor the amendment procedures under
paragraph (4) of this section are applicable to (i) systems of records
exempted pursuant to 5 U.S.C. 552a (j) and (k), (ii) information
compiled in reasonable anticipation of a civil action or proceeding (see
5 U.S.C. 552a (d)(5)), or (iii) information pertaining to an individual
which is contained in, and inseparable from, another individual's
record.
2. Access to and amendment of tax records. The provisions of the
Privacy Act of 1974 may not be used by an individual to amend or correct
any tax record. The determination of liability for taxes imposed by the
Internal Revenue Service Code, the collection of such taxes, and the
payment (including credits or refunds of overpayments) of such taxes are
governed by the provisions of the Internal Revenue Service Code and by
the procedural rules of the Internal Revenue Service. These provisions
set forth the established procedures governing the determination of
liability for tax, the collection of such taxes, and the payment
(including credits or refunds of overpayments) of such taxes. In
addition, these provisions set forth the procedures (including
procedures for judicial review) for resolving disputes between taxpayers
and the Internal Revenue Service involving the amount of tax owed, or
the payment or collection of such tax. These procedures are the
exclusive means available to an individual to contest the amount of any
liability for tax or the payment or collection thereof. See, for
example, 26 CFR 601.103 for summary of general tax procedures.
Individuals are advised that Internal Revenue Service procedures permit
the examination of tax records during the course of an investigation,
audit, or collection activity. Accordingly, individuals should contact
the Internal Revenue Service employee conducting an audit or effecting
the collection of tax liabilities to gain access to such records, rather
than seeking access under the provisions of the Privacy Act. Where, on
the other hand, an individual desires information or records not in
connection with an investigation, audit, or collection activity, the
individual may follow these procedures.
3. Procedures for access to records -- (a) In general. This
paragraph sets forth the procedure whereby an individual can be notified
in response to a request if a system of records named by the individual
which is maintained by the Internal Revenue Service contains a record
pertaining to such individual. In addition, this paragraph sets forth
the procedure for the disclosure to an individual upon a request of a
record or information pertaining to such individual, including the
procedures for verifying the identity of the individual before the
Internal Revenue Service will make a record available, and the procedure
for requesting an accounting of disclosures of such records. An
individual seeking to determine whether a particular system of records
contains a record or records pertaining to such individual and seeking
access to such records (or seeking an accounting of disclosures of such
records) shall make a request for notification and access (or a request
for an accounting of disclosures) in accordance with the rules provided
in paragraph 3(b) of this section.
(b) Form of request for notification and access or request for an
accounting of disclosures. (i) A request for notification and access
(or request for an accounting of disclosures) shall be made in writing
and shall be signed by the person making the request.
(ii) Such request shall be clearly marked, ''Request for notification
and access,'' or ''Request for accounting of disclosures.''
(iii) Such a request shall contain a statement that it is being made
under the provisions of the Privacy Act of 1974.
(iv) Such request shall contain the name and address of the
individual making the request. In addition, if a particular system
employs an individual's social security number as an essential means of
accessing the system, the request must include the individual's social
security number. In the case of a record maintained in the name of two
or more individuals (e.g., husband and wife), the request shall contain
the names, addresses, and social security numbers (if necessary) of both
individuals.
(v) Such request shall specify the name and location of the
particular system of records (as set forth in the Notice of Systems) for
which the individual is seeking notification and access (or an
accounting of disclosures), and the title and business address of the
official designated in the access section for the particular system (as
set forth in the Notice of Systems). In the case of two or more systems
of records which are under the control of the same designated official
at the same systems location, a single request may be made for such
systems. In the case of two or more systems of records which are not in
the control of the same designated official at the same systems
location, a separate request must be made for each such system.
(vi) If an individual wishes to limit a request for notification and
access to a particular record or records, the request should identify
the particular record. In the absence of a statement to the contrary, a
request for notification and access for a particular system of records
shall be considered to be limited to records which are currently
maintained by the designated official at the systems location specified
in the request.
(vii) If such request is seeking notification and access to material
maintained in a system of records which is exempt from disclosure and
access under 5 U.S.C. 552a (k)(2), the individual making the request
must establish that such individual has been denied a right, privilege,
or benefit that such individual would otherwise be entitled to under
Federal law as a result of the maintenance of such material.
(viii) Such request shall state whether the individual wishes to
inspect the record in person, or desires to have a copy made and
furnished without first inspecting it. If the individual desires to
have a copy made, the request must include an agreement to pay the fee
for duplication ultimately determined to be due. If the individual does
not wish to inspect a record, but merely wishes to be notified whether a
particular system or records contains a record pertaining to such
individual, the request should so state.
(c) Time and place for making a request. A request for notification
and access to records under the Privacy Act (or a request for accounting
of disclosures) shall be addressed to or delivered in person to the
office of the official designated in the access section for the
particular system of records for which the individual is seeking
notification and access (or an accounting of disclosures). The title
and office address of such official is set forth for each system of
records in the Notice of Systems of Records. A request delivered to an
office in person must be delivered during the regular office hours of
that office.
(d) Sample request for notification and access to records. The
following are sample requests for notification and access to records
which will satisfy the requirements of this paragraph:
I, John Doe, of 100 Main Street, Boston, MA 02108 (soc. sec. num.
000-00-0000) request under the Privacy Act of 1974 that the following
system of records be examined and that I be furnished with a copy of any
record (or a specified record) contained therein pertaining to me. I
agree that I will pay the fees ultimately determined to be due for
duplication of such record. I have enclosed the necessary information.
System Name:
System Location:
Designated Official:
John Doe
I, John Doe, of 100 Main Street, Boston, MA 02108 (soc. sec. num.
000-00-0000) request under the provisions of the Privacy Act of 1974,
that the following system of records be examined and that I be granted
access in person to inspect any record (or a specified record) contained
therein pertaining to me. I have enclosed the necessary identification.
System Name:
System Location:
Designated Official:
John Doe
(e) Processing a request for notification and access to records or a
request for an accounting of disclosures. (i) If a request for
notification and access (or request for an accounting of disclosures)
omits any information which is essential to processing the request, the
request will not be acted upon and the individual making the request
will be promptly advised of the additional information which must be
submitted before the request can be processed.
(ii) Within 30 days (not including Saturdays, Sundays, and legal
public holidays) after the receipt of a request for notification and
access (or a request for an accounting of disclosures), to a particular
system of records by the designated official for such system, a
determination will be made as to whether the particular system of
records is exempt from the notification and access provisions of the
Privacy Act, and if such system is not exempt, whether it does or does
not contain a record pertaining to the individual making the request.
If a determination cannot be made within 30 days, the individual will be
notified of the delay, the reasons therefor, and the approximate time
required to make a determination. If it is determined by the designated
official that the particular system of records is exempt from the
notification and access provisions of the Privacy Act, the individual
making the request will be notified of the provisions of the Privacy Act
under which the exemption is claimed. On the other hand, if it is
determined by the designated official that the particular system of
records is not exempted from the notification and access provisions of
the Privacy Act and that such system contains a record pertaining to the
individual making the request, the individual will be notified of the
time and place where inspection may be made. If an individual has not
requested that access be granted to inspect the record in person, but
merely requests that a copy of the record be furnished, or if it is
determined by the designated official that the granting of access to
inspect a record in person is not feasible in a particular case, then
the designated official will furnish a copy of the record with the
notification, or if a copy cannot be furnished at such time, a statement
indicating the approximate time such copy will be furnished. If the
request is for an accounting of disclosures from a system of records
which is not exempt from the accounting of disclosure provisions of the
Privacy Act, the individual will be furnished with an accounting of such
disclosures.
(f) Granting of access. Normally, an individual will be granted
access to inspect a record in person within 30 days (excluding
Saturdays, Sundays, and legal public holidays) after the receipt for a
request for notification and access by the designated official. If
access cannot be granted within 30 days, the notification will state the
reasons for the delay and the approximate time such access will be
granted. An individual wishing to inspect a record may be accompanied
by another person of his choosing. Both the individual seeking access
and the individual accompanying him may be required to sign a form
supplied by the IRS indicating that the Service is authorized to
disclose or discuss the contents of the record in the presence of both
individuals. See 26 CFR 601.502 for requirements to be met by
taxpayer's representatives in order to discuss the contents of any tax
records.
(g) Medical records. When access is requested to medical records
(including psychological records), the designated official may determine
that release of such records will be made only to a physician designated
by the individual to have access to such records.
(h) Verification of identity. An individual seeking notification or
access to records, or seeking to amend a record, must satisfy one of the
following identification requirements before action will be taken by the
IRS on any such request:
(i) An individual seeking notification or access to records in
person, or seeking to amend a record in person, may establish identity
by the presentation of a single document bearing a photograph (such as a
passport or identification badge) or by the presentation of two items of
identification which do not bear a photograph but do bear both a name
and signature (such as a driver's license or credit card).
(ii) An individual seeking notification or access to records by mail,
or seeking to amend a record by mail, may establish identity by a
signature, address, and one other identifier such as a photocopy of a
driver's license or other document bearing the individual's signature.
(iii) Notwithstanding subdivisions (i) and (ii) of this subparagraph,
an individual seeking notification or access to records by mail or in
person, or seeking to amend a record by mail or in person, who so
desires, may establish identity by providing a notarized statement,
swearing or affirming to such individual's identity and to the fact that
the individual understands the penalties provided in 5 U.S.C. 552a(i)(3)
for requesting or obtaining access to records under false pretenses.
(iv) Notwithstanding subdivisions (i), (ii), or (iii) of this
subparagraph, a designated official may require additional proof of an
individual's identity before action will be taken on any request if such
official determines that it is necessary to protect unauthorized
disclosure of information in a particular case. In addition, a parent
of any minor or a legal guardian of any individual will be required to
provide adequate proof of legal relationship before such person may act
on behalf of such minor or such individual.
(i) Fees. The fee for costs required of the IRS in copying records
pursuant to this paragraph is $0.15 per page. However, no fee will be
charged if the aggregate costs required of the IRS in copying records is
less than $3.00. If an individual who has requested access to inspect a
record in person is denied such access by the designated official
because it would not be feasible in a particular case, copies of such
record will be furnished to the individual without payment of the fees
otherwise required under this subparagraph. If the IRS estimates that
the total fees for costs incurred in complying with a request for copies
of records will amount to $50 or more, the individual making the request
may be required to enter into a contract for the payment of the actual
fees with respect to the request before the Service will furnish the
copies requested. Payment of fees for copies of records should be made
by check or money order payable to the Internal Revenue Service.
4. Procedures for amendment of records. (a) In general. This
paragraph sets forth the procedures for reviewing a request from an
individual concerning the amendment of any record or information
pertaining to such individual, for making a determination on the
request, for making an appeal within the IRS of an initial adverse
determination, and for judicial review of a final determination.
(b) Amendment of record. Under 5 U.S.C. 552a(d)(2), an individual
who has been granted access to a record pertaining to such individual
may, after inspecting the record, request that the record be amended to
make any correction of any portion thereof which the individual believes
is not accurate, relevant, timely, or complete. An individual may seek
to amend a record in accordance with the rules provided in paragraph
(d)(3) of this section. See paragraph (b) of this section for
prohibition against amendment of tax records.
(c) Form of request for amendment of record. (i) A request for
amendment of a record shall be in writing and shall be signed by the
individual making the request.
(ii) Such request shall be clearly marked ''Request for amendment of
record.''
(iii) Such request shall contain a statement that it is being made
under the provisions of the Privacy Act of 1974.
(iv) Such request shall contain the name and address of the
individual making the request. In addition, if a particular system
employs an individual's social security number as an essential means of
accessing the system, the request must include the individual's social
security number. In the case of a record maintained in the name of two
or more individuals (e.g., husband and wife), the request shall contain
the names, addresses, and social security numbers (if necessary) of both
individuals.
(v) Such request shall specify the name and location of the system of
records (as set forth in the Notice of Systems) in which such record is
maintained, and the title and business address of the official
designated in the access section for such system (as set forth in the
Notice of Systems).
(vi) Such request shall specify the particular record in the system
which the individual is seeking to amend.
(vii) Such request shall clearly state the specific changes which the
individual wishes to make in the record and a concise explanation of the
reasons 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.
(d) Time and place for making request. A request to amend a record
under the Privacy Act shall be addressed to or delivered in person to
the office of the official designated in the access section for the
particular system of records. The title and office address of such
official is set forth for each system of records in the Notice of
Systems of Records. A request delivered to an office in person must be
delivered during the regular office hours of that office.
(e) Processing a request for amendment of a record. (i) Within 10
days (not including Saturdays, Sundays, and legal public holidays) after
the receipt of a request to amend a record by the designated official,
the individual will be sent a written acknowledgement that will state
that the request has been received, that action is being taken thereon,
and that the individual will be notified within 30 days (not including
Saturdays, Sundays, and legal public holidays) after the receipt of the
request whether the requested amendments will or will not be made. If a
request for amendment of a record omits any information which is
essential to processing the request, the request will not be acted upon
and the individual making the request will be promptly advised on the
additional information which must be submitted before the request can be
processed.
(ii) Within 30 days (not including Saturdays, Sundays, and legal
public holidays) after the receipt of a request to amend a record by the
designated official, a determination will be made as to whether to grant
the request in whole or part. The individual will then be notified in
writing of the determination. If a determination cannot be made within
30 days, the individual will be notified in writing within such time of
the reasons for the delay and the approximate time required to make a
determination. If it is determined by the designated official that the
request will be granted, the requested changes will be made in the
record and the individual will be notified of the changes. In addition,
to the extent an accounting was maintained, all prior recipients of such
record will be notified of the changes. Upon request, an individual
will be furnished with a copy of the record, as amended, subject to the
payment of the appropriate fees. On the other hand, if it is determined
by the designated official that the request, or any portion thereof,
will not be granted, the individual will be notified in writing of the
adverse determination. The notification of an adverse determination
will set forth the reasons for refusal to amend the record. In
addition, the notification will contain a statement informing the
individual of such individual's right to request an independent review
of the adverse determination by a reviewing officer in the national
office of the IRS and the procedures for requesting such a review.
(f) Administrative review of adverse determination. Under 5 U.S.C.
552a (d)(3), an individual who disagrees with the refusal of the agency
to amend a record may, within 35 days of being notified of the adverse
determination, request an independent review of such refusal by a
reviewing officer in the national office of the IRS. The reviewing
officer for the IRS is the Commission of Internal Revenue, the Deputy
Commissioner, or an Assistant Commissioner. In the case of an adverse
determination relating to a system of records maintained by the Office
of General Counsel for the IRS, the reviewing officer is the Chief
Counsel or his delegate. An individual seeking a review of an adverse
determination shall make a request for review in accordance with the
rules provided in paragraph (d)(7) of this section.
(g) Form of request for review. (i) A request for review of an
adverse determination shall be in writing and shall be signed by the
individual making the request.
(ii) Such request shall be clearly marked ''Request for review of
adverse determination''.
(iii) Such request shall contain a statement that it is being made
under the provisions of the Privacy Act of 1974.
(iv) Such request shall contain the name and address of the
individual making the request. In addition, if a particular system
employs an individual's social security number as an essential means of
accessing the system, the request must include the individual's social
security number. In the case of a record maintained in the name of two
or more individuals (e.g. husband and wife), the request shall contain
the names, addresses, and social security numbers (if necessary) of both
individuals.
(v) Such request shall specify the particular record which the
individual is seeking to amend, the name and location of the system of
records (as set forth in the Notice of Systems) in which such record is
maintained, and the title and business address of the designated
official for such system (as set forth in the Notice of Systems).
(vi) Such request shall include the date of the initial request for
amendment of the record, and the date of the letter notifying the
individual of the initial adverse determination with respect to such
request.
(vii) such request shall clearly state the specific changes which the
individual wishes to make in the record and a concise explanation of the
reasons 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.
(h) Time and place for making the request. A request for review of
an adverse determination under the Privacy Act shall be addressed to or
delivered in person to the Director, Office of Disclosure, Attention:
OP:EX:D Internal Revenue Service, 1111 Constitution Avenue, NW,
Washington, DC 20224. A request for review of an adverse determination
will be promptly referred by the Director, Office of Disclosure to the
appropriate reviewing officer for his review and final determination.
(i) Processing a request for review of adverse determination. Within
30 days (not including Saturdays, Sundays, and legal public holidays)
after the receipt of a request for review of an adverse determination by
the appropriate reviewing officer, the reviewing officer will review the
initial adverse determination, make a final determination whether to
grant the request to amend the record in whole or in part, and notify
the individual in writing of the final determination. If a final
determination cannot be made within 30 days, the Commissioner of
Internal Revenue may extend such 30-day period. The individual will be
notified in writing within the 30 day period of the cause for the delay
and the approximate time required to make a final determination. If it
is determined by the reviewing officer that the request to amend the
record will be granted, the reviewing officer will cause the requested
changes to be made and the individual will be so notified. Upon
request, an individual will be furnished with a copy of the record as
amended subject to the payment of appropriate fees. On the other hand,
if it is determined by the reviewing officer that the request to amend
the record, or any portion thereof, will not be granted, the individual
will be notified in writing of the final adverse determination. The
notification of a final adverse determination will set forth the reasons
for the refusal of the reviewing officer to amend the record. The
notification shall include a statement informing the individual of the
right to submit a concise statement for insertion in the record setting
forth the reasons for the disagreement with the refusal of the reviewing
officer to amend the record. In addition, the notification will contain
a statement informing the individual of the right to seek judicial
review by a United States district court of a final adverse
determination.
(j) Statement of disagreement. Under 5 U.S.C. 552a (d)(3), an
individual who disagrees with a final adverse determination not to amend
a record subject to amendment under the Privacy Act may submit a concise
statement for insertion in the record setting forth the reasons for
disagreement with the refusal of the reviewing officer to amend the
record. A statement of disagreement should be addressed to or delivered
in person to the Director, Office of Disclosure, Attention: OP:EX:D,
Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC
20224. The Director, Office of Disclosure will foward the statement of
disagreement to the appropriate designated official who will cause the
statement to be inserted in the individual's record. Any such statement
will be available to anyone to whom the record is subsequently disclosed
and the prior recipients of the record will be provided with a copy of
the statement of disagreement, to the extent an accounting of
disclosures was maintained.
(k) Judicial review. If, after a review and final determination on a
request to amend a record by the appropriate reviewing officer, the
individual is notified that the request will not be granted, or if,
after the expiration of 30 days (not including Sundays, Saturdays, and
legal public holidays) from the receipt of such request by the Director,
Disclosure Operations Division, action is not taken thereon in
accordance with the requirements of paragraph (d)(9) of this section, an
individual may commence an action within the time prescribed by law in a
U.S. District Court pursuant to 5 U.S.C. 552a (g)(1). The statute
authorizes an action only against the agency. With respect to records
maintained by the IRS, the agency is the Internal Revenue Service, not
an officer or employee thereof. Service of process in such an action
shall be in accordance with the Federal Rules of Civil Procedure (28
U.S.C. App.) applicable to actions against an agency of the United
States. Where provided in such Rules, delivery of process upon the IRS
must be directed to the Commissioner of Internal Revenue, Attention:
CC:GLS, 1111 Constitution Avenue, NW, Washington, DC 20224. The
district court will determine the matter de novo.
5. Records transferred to Federal Records Centers. Records
transferred to the Administrator of General Services for storage in a
Federal Records Center are not used by the Internal Revenue Service in
making any determination about any individual while stored at such
location and therefore are not subject to the provisions of 5 U.S.C.
552a (e)(5) during such time.
31 CFR 1.36 Appendix C -- United States Customs Service
31 CFR 1.36 Pt. 1, Subpt. C, App. C
1. In general. This appendix applies to the United States Customs
Service. It sets forth specific notification and access procedures with
respect to particular systems of records, identifies the officer
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers
designated to grant extensions of time on appeal, the officers with whom
''Statements of Disagreement may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register in ''Privacy Act
Issuances''.
2. Requests for notification and access to records and accounting of
disclosures. (a) For records which are maintained at the United States
Customs Service Headquarters, initial requests for notification and
access to records and accountings of disclosures under 31 CFR 1.26,
should be mailed or personally delivered to the Director, Office of
Regulations & Rulings, U.S. Customs Service, 1301 Constitution Avenue
NW., Washington, DC 20229. The official who has authority over the
maintenance of the file will have the authority to grant or deny the
request.
(b) For records maintained at Regional Offices, initial requests for
notification and access to records and accountings of disclosures under
31 CFR 1.26, should be mailed or personally delivered to the Regional
Commissioner of Customs in whose region the records are located. This
official shall have the authority to grant the request or deny the
request. The appropriate location of the regional offices is specified
in Customs Appendix A in ''Privacy Act Issuances'' published annually by
the Office of the Federal Register.
(c) Each request shall comply with the identification and other
requirements set forth in 31 CFR 1.26, and in the appropriate system
notice in the ''Privacy Act Issuances'' published annually by the Office
of the Federal Register. Each request should be conspicuously labeled
on the face of the envelope ''Privacy Act Request''.
3. Request for amendment of records. (a) For records which are
maintained at Customs Service Headquarters, initial requests for
amendment of records under 31 CFR 1.27 (a) through (d) should be mailed
or personally delivered to the Director, Office of Regulations &
Rulings, U.S. Customs Service, 1301 Constitution Avenue NW., Washington,
DC 20229. The official who has authority over the maintenance of the
file will have the authority to grant or deny the request.
(b) For records not maintained at Customs Service Headquarters,
initial requests for amendment of records under 31 CFR 1.27 (a) through
(d) should be mailed or personally delivered to the Regional
Commissioner of Customs in whose region the records are located. This
official shall have the authority to grant or deny the request. A
request directed to a Regional Commissioner should be mailed to or
personally delivered at the appropriate location specified in Customs
Appendix A in ''Privacy Act Issuances'' published annually by the Office
of the Federal Register.
(c) Each request shall comply with the identification and other
requirements set forth in 31 CFR 1.27, and in the appropriate system
notice in ''Privacy Act Issuance published by the Office of the Federal
Register. Each request should be conspicuously labeled on the face of
the envelope ''Privacy Act Amendment Request''.
4. Administrative appeal of initial determination refusing to amend
records. Appellate determinations (including extensions of time on
appeal under 31 CFR 1.27 (e) with respect to all Customs Service records
will be made by the Director, Office of Regulations & Rulings or the
delegate of such official. All such appeals should be mailed or
personally delivered to the United States Customs Service, Office of
Regulations & Rulings, 1301 Constitution Avenue NW., Washington, DC
20229. Each appeal should be conspicuously labeled on the face of the
envelope ''Privacy Act Amendment Appeal''.
5. Statements of disagreement. ''Statements of Disagreement''
pursuant to 31 CFR 1.27 (e)(4)(i) shall be filed with the official
signing the notification of refusal to amend at the address indicated in
the letter of notification within 35 days of the date of such
notification and should be limited to one page.
6. Service of process. Service of process will be received by the
Chief Counsel, United States Customs Service, 1301 Constitution Avenue
NW., Washington, DC 20229.
7. Annual notice of systems of records. The annual notice of the
United States Customs Service systems of records required to be
published by the Office of the Federal Register, as specified in 5
U.S.C. 552a(f), is included in the publication entitled ''Privacy Act
Issuances''.
8. Verification of identity. Each request shall comply with the
identification and other requirements set forth in 31 CFR 1.26 and in
the appropriate system notice published by the Office of the Federal
Register. Each request should be conspicuously labeled on the face of
the envelope ''Privacy Act Request''.
31 CFR 1.36 Appendix D -- United States Secret Service
31 CFR 1.36 Pt. 1, Subpt. C, App. D
1. In general. This appendix applies to the United States Secret
Service. It sets forth specific notification and access procedures with
respect to particular systems of records including identification
requirements, and time and places where records may be reviewed;
identifies the officers designated to make the initial determinations
with respect to notification and access to records and accountings of
disclosures of records. This appendix also sets forth the specific
procedures for requesting amendment of records and identifies the
officers designated to make the initial and appellate determinations
with respect to requests for amendment of records. It identifies the
officers designated to grant extensions of time on appeal, the officers
with whom ''Statements of Disagreement may be filed, the officer
designated to receive service of process and the addresses for delivery
of requests, appeals, and service of process. In addition, it
references the notice of systems of records and notices of the routine
uses of the information in the system required by 5 U.S.C. 552a(e) (4)
and (11) and published annually by the Office of the Federal Register in
''Privacy Act Issuances''.
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the United States Secret Service, will be made by the
Freedom of Information and Privacy Act Officer, United States Secret
Service. Requests for notification should be made by mail or delivered
personally between the hours of 9:00 a.m. and 5:30 of any day excluding
Saturdays, Sundays, and legal holidays to: Privacy Act Request, Freedom
of Information and Privacy Act Officer, United States Secret Service,
Room 720, 1800 G Street NW., Washington, DC 20223.
a. Identification requirements. In addition to the requirements
specified in 31 CFR 1.26, each request for notification, access or
amendment of records made by mail shall contain the requesting
individual's date and place of birth and a duly notarized statement
signed by the requester asserting his or her identity and stipulating
that the requesting individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretences is punishable by a fine of up to $5,000.
b. Individuals making requests in person. Individuals making
requests in person will be required to exhibit acceptable identifying
documents such as employee identification numbers, drivers licenses,
medical cards or other documents sufficient to verify the identity of
the requester.
c. Physical inspection of records. Upon determining that a request
for the physical inspection of records is to be granted, the requester
shall be notified in writing of the determination, and when and where
the requested records may be inspected. The inspection of records will
be conducted at the Secret Service field office or other facility
located nearest to the residence of the individual making the request.
Such inspection shall be conducted during the regular business hours of
the Secret Service Field Office or other facility where the disclosure
is made. A person of his or her own choosing may accompany the
individual making the request provided the individual furnishes a
written statement authorizing the disclosure of that individual's record
in the accompanying person's presence. Any disclosure of a record will
be made in the presence of a representative of the United States Secret
Service.
3. Requests for amendment of records. Initial determination under 31
CFR part 1, whether to grant requests to amend records will be made by
the Freedom of Information and Privacy Act Officer. Requests should be
mailed or delivered personally between the hours of 9:00 a.m. and 5:30
p.m. to: Privacy Act Amendment Request, Freedom of Information and
Privacy Acts Officer, United States Secret Service, Room 720, 1800 G
Street NW., Washington, DC 20223.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27 including extensions of time on appeal, with respect
to records of the United States Secret Service will be made by the
Assistant Secretary of the Treasury for Enforcement. Appeals made by
mail should be addressed to, or delivered personally to: Privacy Act
Amendment Appeal, Assistant Secretary of the Treasury for Enforcement,
Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC
20220.
5. Statements of disagreement. ''Statements of Disagreements'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing of the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
United States Secret Service General Counsel and shall be delivered to
the following location: General Counsel, United States Secret Service,
Room 843, 1800 G Street NW., Washington, DC 20223.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 Appendix E -- Bureau of Alcohol, Tobacco and Firearms
31 CFR 1.36 Pt. 1, Subpt. C, App. E
1. In general. This appendix applies to the Bureau of Alcohol,
Tobacco and Firearms. It sets forth specific notification and access
procedures with respect to particular systems of records, identifies the
officers designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers
designated to grant extensions of time on appeal, the officers with whom
''Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a (3) (4) and (11) and published
annually by the Office of the Federal Register in ''Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings of
disclosures. Initial determination under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Bureau of Alcohol, Tobacco, and Firearms, will be
made by the Chief, Disclosure Branch, Office of the Assistant to the
Director or the delegate of such officer. Requests may be mailed or
delivered in person to: Privacy Act Request, Chief, Disclosure Branch,
Room 4406, Bureau of Alcohol, Tobacco and Firearms, 1200 Pennsylvania
Avenue, NW., Washington, DC 20226.
3. Requests for amendment of record. Initial determinations under 31
CFR 1.27 (a) through (d) with respect to requests to amend records
maintained by the Bureau of Alcohol, Tobacco and Firearms will be made
by the Chief, Disclosure Branch, Office of the Assistant to the
Director. Requests for amendment of records may be mailed or delivered
in person to: Privacy Act Request, Chief, Disclosure Branch, Room 4406,
Bureau of Alcohol, Tobacco and Firearms, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20226.
4. Verification of identity. (a) In addition to the requirements
specified in 31 CFR 1.26(d) of this appendix, each request for
notification, access or amendment of records made by mail shall contain
the requesting individual's date and place of birth and a statement
signed by the requester asserting his or her identity and stipulating
that the requester understands that knowingly or willfully seeking or
obtaining access to records about another person under false pretenses
is a misdemeanor and punishable by a fine of up to $5,000 provided, that
the Bureau of Alcohol, Tobacco and Firearms may require a signed
notarized statement verifying the identity of the requester.
(b) Individuals making requests in person will be required to exhibit
at least two acceptable identifying documents such as employee
identification cards, driver's license, medical cards, or other
documents sufficient to verify the identity of the requester.
(c) The parent or guardian of a minor or a person judicially
determined to be incompetent, shall in addition to establishing the
identity of the minor or other person he represents as required in (a)
and (b), establish his own parentage or guardianship by furnishing a
copy of a birth certificate showing parentage (or other satisfactory
documentation) or a court order establishing the guardianship.
5. Request for physical inspection of records. Upon determining that
a request for the physical inspection of records is to be granted, the
requester shall be notified in writing of the determination, and when
and where the records may be inspected. The inspection of records will
be made at the Bureau of Alcohol, Tobacco and Firearms Field Office or
other facility located nearest to the residence of the individual making
the request. Such inspection shall be conducted during the regular
business hours of the field office or other facility where the
disclosure is made. A person of the requester's own choosing may
accompany the requester provided the requester furnishes a written
statement authorizing the disclosure of the requester's record in the
accompanying person's presence. The record inspection will be made in
the presence of a representative of the Bureau. Following the
inspection of the record, the individual will acknowledge in writing the
fact that he or she had an opportunity to inspect the requested record.
6. Requests for copies of records without prior physical inspection.
Upon determining that an individual's request for copies of his or her
records without prior physical inspection is to be granted, the
requester shall be notified in writing of the determination, and the
location and time for his or her receipt of the requested copies. The
copies will be made available at the Bureau of Alcohol, Tobacco and
Firearms field office or other facility located nearest to the residence
of the individual making the request. Copies shall be received by the
requester during the regular business hours of the field office or other
facility where the disclosure is made. Transfer of the copies to the
individual shall be conditioned upon payment of copying costs and his
presentation of at least two acceptable identifying documents such as
employee identification cards, driver's license, medical cards, or other
documents sufficient to verify the identity of the requester. Following
the receipt of the copies, the individual will acknowledge receipt in
writing.
7. Administrative appeal of initial determination refusing to amend
record. Appellate determinations under 31 CFR 1.27(e) with respect to
records of the Bureau of Alcohol, Tobacco and Firearms, including
extensions of time on appeal, will be made by the Director or the
delegate of such officer. Appeals should be addressed to, or delivered
in person to: Privacy Act Amendment Appeal, Director, Bureau of
Alcohol, Tobacco and Firearms, Room 4406, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20226.
8. Statements of disagreement. ''Statements of Disagreement'' as
described in 31 CFR 1.27(e) (4) shall be filed with the official signing
the notification within 35 days of the date of such notification and
should be limited to one page.
9. Service of process. Service of process will be received by the
Director of the Bureau of Alcohol, Tobacco and Firearms or the delegate
of such official and shall be delivered to the following location:
Director, Bureau of Alcohol, Tobacco and Firearms, 1200 Pennsylvania
Avenue, NW., Washington, DC 20226, Attention: Chief Counsel.
10. Annual notice of systems of records. The annual notice of
systems of records is published by the Office of the Federal Register,
as specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy
Act Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for each pertinent
system.
31 CFR 1.36 Appendix F -- Bureau of Engraving and Printing
31 CFR 1.36 Pt. 1, Subpt. C, App. F
1. In general. This appendix applies to the Bureau of Engraving and
Printing. It sets forth specific notification and access procedures
with respect to particular systems of records including identification
requirements, identifies the officers designated to make the initial
determinations with respect to notification and access to records and
accountings of disclosures of records. This appendix also sets forth
the specific procedures for requesting amendment of records and
identifies the officers designated to make the initial and appellate
determinations with respect to requests for amendment of records. It
identifies the officers designated to grant extensions of time on
appeal, the officers with whom ''Statements of Disagreement may be
filed, the officer designated to receive service of process and the
addresses for delivery of requests, appeals, and service of process. In
addition, it references the notice of systems of records and notices of
the routine uses of the information in the system required by 5 U.S.C.
552a (e) (4) and (11) and published annually by the Office of the
Federal Register in ''Privacy Act Issuances.''
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Bureau of Engraving and Printing, will be made by
the head of the organizational unit having immediate custody of the
records requested, or the delegate of such official. Requests for
access to records contained within a particular system of records should
be submitted to the address indicated for that system in the access
section of the notices published by the Office of the Federal Register
in ''Privacy Act Issuances.'' Requests for information and specific
guidance should be addressed to: Privacy Act Request, Disclosure
Officer (Executive Assistant to the Director), Room 104 -- 18M, Bureau
of Engraving and Printing, Washington, DC 20228.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant request to amend records will
be made by the head of the organizational unit having immediate custody
of the records or the delegate of such official. Requests for amendment
should be addressed as indicated in the appropriate system notice in
''Privacy Act Issuances'' published by the Office of the Federal
Register. Requests for information and specific guidance on where to
send requests for amendment should be addressed to: Privacy Act
Amendment Request, Disclosure Officer (Executive Assistant to the
Director), Bureau of Engraving and Printing, Room 104-18M, Washington,
DC 20228.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27(e) including extensions of time on appeal, with
respect to records of the Bureau of Engraving and Printing will be made
by the Director of the Bureau or the delegate of such officer. Appeals
made by mail should be addressed to, or delivered personally to:
Privacy Act Amendment Appeal, Disclosure Officer (Executive Assistant to
the Director), Room 104-18M, Bureau of Engraving and Printing,
Washington, DC 20228.
5. Statements of disagreement. ''Statements of Disagreement'' under
31 CFR 1.27(e)(4)(8) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Chief Counsel of the Bureau of Engraving and Printing and shall be
delivered to the following location: Chief Counsel, Bureau of Engraving
and Printing, Room 109-M, 14th and C Streets, SW., Washington, DC 20228.
7. Verification of identity. An individual seeking notification or
access to records, or seeking to amend a record, or seeking an
accounting of disclosures, must satisfy one of the following
identification requirements before action will be taken by the Bureau of
Engraving and Printing on any such request:
(i) An individual appearing in person may establish identity by the
presentation of a single document bearing a photograph (such as a
passport or identification badge) or by the presentation of two items of
identification which do not bear a photograph, but do bear both a name
and signature (such as a credit card).
(ii) An individual may establish identity through the mail by a
signature, address, and one other identifier such as a photocopy of a
driver's license or other document bearing the individual's signature.
(iii) Notwithstanding subdivisions (i) and (ii) of this subparagraph,
an individual who so desires, may establish identity by providing a
notarized statement, swearing or affirming to such individual's identity
and to the fact that the individual understands the penalties provided
in 5 U.S.C. 552a(1)(3) for requesting or obtaining access to records
under false pretenses.
Notwithstanding subdivision (i), (ii), or (iii) of this subparagraph,
the Executive Assistant or other designated official may require
additional proof of an individual's identity before action will be taken
on any request if such official determines that it is necessary to
protect against unauthorized disclosure of information in a particular
case. In addition, a parent of any minor or a legal guardian of any
individual will be required to provide adequate proof of legal
relationship before such person may act on behalf of such minor or such
individual.
8. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 522a(f). The publication is entitled ''Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 Appendix G -- Financial Management Service
31 CFR 1.36 Pt. 1, Subpt. C, App. G
1. In general. This appendix applies to the Financial Management
Service. It sets forth specific notification and access procedures with
respect to particular systems of records, identifies the officers
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers
designated to grant extensions of time on appeal, the officers with whom
''Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register in ''Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Financial Management Service, will be made by the
head of the organizational unit having immediate custody of the records
requested or an official designated by this official. This is indicated
in the appropriate system notice in ''Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests for
information and specific guidance on where to send requests for records
may be mailed or delivered personally to: Privacy Act Request,
Disclosure Officer, Financial Management Service, Room 108, Treasury
Department Annex No. 1, Pennsylvania Avenue and Madison Place, NW.,
Washington, DC 20226.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27(a) through (d), whether to grant requests to amend records will
be made by the head of the organzational unit having immediate custody
of the records or the delegate of such official. Requests for amendment
should be addressed as indicated in the appropriate system notice in
''Privacy Act Issuances'' published by the Office of the Federal
Register. Requests for information and specific guidance on where to
send requests for amendment should be addressed to: Privacy Act
Amendment Request, Disclosure Officer, Financial Management Service,
Department of the Treasury, Treasury Annex No. 1, Washington, DC 20226.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27(e) incuding extensions of time on appeal, with respect
to records of the Financial Management Service will be made by the
Commissioner or the delegate of such official. Appeals made by mail
should be addressed to, or delivered personally to: Privacy Act
Amendment Appeal Commissioner, Financial Management Service (Privacy),
Department of the Treasury, Room 618, Treasury Annex No. 1,
Pennsylvania Avenue and Madison Place, NW., Washington, DC 20226.
5. Statements of disagreement. ''Statements of Disagreement'' under
31 CFR 1.27(e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Commissioner, Financial Management Service or the delegate of such
official and shall be delivered to the following location:
Commissioner, Financial Management Service (Privacy), Department of the
Treasury, Room 618, Treasury Annex No. 1, Pennsylvania Avenue and
Madison Place, NW, Washington, DC 20226.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 Appendix H -- United States Mint
31 CFR 1.36 Pt. 1, Subpt. C, App. H
1. In general. This appendix applies to the United States Mint. It
sets forth specific notification and access procedures with respect to
particluar systems of records, identifies the officers designated to
make the initial determinations with respect to notification and access
to records and accountings of disclosures of records. This appendix
also sets forth the specific procedures for requesting amendment of
records and identifies the officers designated to make the initial and
appellate determinations with respect to requests for amendment of
records. It identifies the officers designated to grant extensions of
time on appeal, the officers with whom ''Statements of Disagreement''
may be filed, the officer designated to receive service of process and
the addresses for delivery of requests, appeals, and service of process.
In addition, it references the notice of systems of records and notices
of the routine uses of the information in the system required by 5
U.S.C. 552a(e) (4) and (11) and published annually by the Office of the
Federal Register in ''Privacy Act Issuances''.
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the United States Mint will be made by the head of the
organizational unit having immediate custody of the records requested or
an official designated by this official. This is indicated in the
appropriate system notice in ''Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests should be
directed to the Superintendent or Officer in charge of the facility in
which the records are located or to the Chief, Administrative Programs
Division. Requests for information and specific guidance on where to
send requests for records may be mailed or delivered personally to:
Privacy Act Request, Chief, Administrative Programs Division, United
States Mint, Judiciary Square Building, 633 3rd Street, N.W, Washington,
DC 20220.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the Mint installation having immediate
custody of the records or the delegated official. Requests should be
mailed or delivered personally to: Privacy Act Amendment Request,
Freedom of Information and Privacy Acts Officer, United States Mint,
Judiciary Square Building, 633 3rd Street, Washington, DC 20220.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27 including extensions of time on appeal, with respect
to records of the United States Mint will be made by the Director of the
Mint or the delegate of the Director. Appeals made by mail should be
addressed to, or delivered personally to: Privacy Act Amendment Appeal,
United States Mint, Judiciary Square Building, 633 3rd Street, NW,
Washington, DC 20220.
5. Statements of disagreement. ''Statements of Disagreement'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Director of the Mint and shall be delivered to the following location:
Director of the Mint, Judiciary Square Building, 633 3rd street, NW.,
Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 Appendix I -- Bureau of the Public Debt
31 CFR 1.36 Pt. 1, Subpt. C, App. I
1. In general. This appendix applies to the Bureau of the Public
Debt. It sets forth specific notification and access procedures with
respect to particular systems of records, identifies the officers
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officer designated
to grant extension of time on appeal, the officers with whom
''Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register in ''Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Bureau of Public Debt, will be made by the head of
the organizational unit having immediate custody of the records
requested or an official designated by this official. This is indicated
in the appropriate system notice in ''Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests for
information and specific guidance on where to send requests for records
may be mailed or delivered personnaly to: Privacy Act Request,
Information Officer, Bureau of the Public Debt, Department of the
Treasury, 999 E Street NW. Room 553, Washington, DC 20239.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the organizational unit having immediate
custody of the records or the delegate of such official. Requests for
amendment should be addressed as indicated in the appropriate system
notice in ''Privacy Act Issuances'' published by the Office of the
Federal Register. Requests for information and specific guidance on
where to send requests for amendment should be addressed to: Privacy
Act Amendment Request, Information Officer, Bureau of the Public Debt,
Department of the Treasury, 999 E Street NW., Room 553, Washington, DC
20239.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27(e) including extensions of time on appeal, with
respect to records of the Bureau of the Public Debt will be made by the
Commissioner of the Public Debt or the delegate of such officer.
Appeals made by mail should be addressed to, or delivered personally to:
Privacy Act Amendment Appeal, Chief Counsel, Bureau of the Public Debt,
Department of the Treasury, 999 E Street NW., Room 503, Washington, DC
20239.
5. Statements of disagreement. ''Statements of Disagreement'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Chief Counsel of the Bureau of the Public Debt and shall be delivered to
the following location: Chief Counsel, Bureau of the Public Debt,
Department of the Treasury, 999 E Street, NW., Room 503, Washington, DC
20239.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 Appendix J -- Office of the Comptroller of the Currency
31 CFR 1.36 Pt. 1, Subpt. C, App. J
1. In general. This appendix applies to the Office of the
Comptroller of the Currency. It sets forth specific notification and
access procedures with respect to particular systems of records,
identifies the officers designated to make the initial determinations
with respect to notification and access to records and accountings of
disclosures of records. This appendix also sets forth the specific
procedures for requesting amendment of records and identifies the
officers designated to make the intial and appellate determinations with
respect to requests for amendment of records. It identifies the
officers designated to grant extensions of time on appeal, the officers
with whom ''Statements of Disagreement'' may be filed, the officer
designated to receive service of process and the addresses for delivery
of requests, appeals, and service of process. In addition, it
references the notice of systems of records and notices of the routine
uses of the information in the system required by 5 U.S.C. 552a(e) (4)
and (11) and published annually by the Office of the Federal Register in
''Privacy Act Issuances''.
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Office of the Comptroller of the Currency, will be
made by the head of the organizational unit having immediate custody of
the records requested or an official designated by this official. This
is indicated in the appropriate system notice in ''Privacy Act
Issuances'' published annually by the Office of the Federal Register.
Requests for information and specific guidance on where to send requests
for records may be mailed or delivered personally to: Privacy Act
Request, Communications Division, Comptroller of the Currency, 5th
Floor, 490 L'Enfant Plaza East, SW., Washington, DC 20219.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the organizational unit having immediate
custory of the records or the delegate of such official. Requests for
amendment should be addressed to: Privacy Act Amendment Request,
Communications Division, 5th Floor, Comptroller of the Currency, 490
L'Enfant Plaza East, SW., Washington, DC 20219.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27(e) including extensions of time on appeal, with
respect to records of the Office of the Comptroller of the Currency will
be made by the Comptroller of the Currency or Chief Counsel or the
delegate of such officer. Appeals made by mail should be addressed to,
or delivered personally to: Privacy Act Amendment Appeal,
Communications Division, 5th Floor, Comptroller of the Currency, 490
L'Enfant Plaza East, SW., Washington, DC 20219.
5. Statements of disagreement. ''Statements of Disagreement'' under
31 CFR 1.27(e)(4)(i) shall be filed with the Director, Communications
Division at the address indicated in the letter of notification within
35 days of the date of such notification and should be limited to one
page.
6. Service of process. Service of process will be received by the
Office of the Chief Counsel of the Comptroller of the Currency or the
delegate of such official and shall be delivered to the following
location: Office of Chief Counsel, Comptroller of the Currency, Fifth
Floor, 490 L'Enfant Plaza East, SW., Washington, DC 20219.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 Appendix K -- U.S. Savings Bonds Division
31 CFR 1.36 Pt. 1, Subpt. C, App. K
1. In general. This appendix applies to the U.S. Savings Bonds
Division. It sets forth specific notification and access procedures
with respect to particular systems of records, identifies the officers
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers
designated to grant extensions of time on appeal, the officers with whom
''Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 52a(e) (4) and (11) and published
annually by the Office of the Federal Register in ''Privacy Act
Issuances.''
2. Requests for notification and access to records and accountings of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Financial Management Service, will be made by the
head of the organizational unit having immediate custody of the records
requested or an official designated by this official. This is indicated
in the appropriate system notice in ''Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests for
information and specific guidance on where to send requests for records
may be mailed or delivered personally to: Privacy Act Request, U.S.
Savings Bonds Division, Department of the Treasury, 1111 20th Street,
NW., Washington, DC 20226.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the organizational unit having immediate
custody of the records or the delegate of such official. Requests for
amendment should be addressed as indicated in the appropriate system
notice in ''Privacy Act Issuances'' published by the Office of the
Federal Register. Requests for information and specific guidance on
where to send requests for amendment should be addressed to: Privacy
Act Amendment Request, Privacy Act Contact, U.S. Savings Bonds Division,
Department of the Treasury, 1111 20th Street, NW., Washington, DC 20226.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27(e) including extensions of time on appeal, with
respect to records of the U .S. Savings Bonds Division will be made by
the National Director, U.S. Savings Bonds Division or the delegate of
such officer. Appeals made by mail should be addressed to, or delivered
personally to: Privacy Act Amendment Appeal, National Director, U.S.
Savings Bonds Division, Department of the Treasury, 1111 20th Street,
NW., Washington, DC 20226.
5. Statements of disagreement. ''Statements of Disagreement'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
such official and shall be delivered to the following location: General
Counsel, Room 3000-MT, Department of the Treasury, 1500 Pennsylvania
Avenue, NW., Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of
systems of records is published by the Office of the Federal Register,
as specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy
Act Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 Appendix L -- Federal Law Enforcement Training Center
31 CFR 1.36 Pt. 1, Subpt. C, App. L
1. In general. This appendix applies to the Federal Law Enforcement
Training Center. It sets forth specific notification and access
procedures with respect to particular systems of records, identifies the
officers designated to make the initial determinations with respect to
notification and access to records and accountings of disclosure of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers
designated to grant extensions of time on appeal, the officers with whom
''Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register, in ''Privacy Act
Issuances''.
2. Requests for notification and access to records and accounting of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and acesss to records and accounting of
disclosures for the Federal Law Enforcement Training Center, will be
made by the head of the organizational unit having immediate custody of
the records requested or an official designated by this official. This
is indicated in the appropriate system notice in ''Privacy Act
Issuances'' published annually by the Office of the Federal Register.
Requests for information and specific guidance on where to send requests
for records may be mailed or delivered personally to: Privacy Act
Request, Library Building 262, Federal Law Enforcement Training Center,
Glynco, Georgia 31524.
3. Requests for amendment of records. Initial determinations under
31 CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the organizational unit having immediate
custody of the records or the delegate of such official. Requests for
amendment should be addressed as indicated in the appropriate system
notice in ''Privacy Act Issuances'' published by the Office of the
Federal Register. Requests for information and specific guidance on
where to send requests for amendment should be addressed to: Privacy
Act Amendment Request, Federal Law Enforcement Training Center, Glynco,
Georgia 31524.
4. Administrative appeal of initial determinations refusing amendment
of records. Appellate determinations refusing amendment of records
under 31 CFR 1.27(e) including extensions of time on appeal, with
respect to records of the Federal Law Enforcement Training Center will
be made by the Assistant Secretary (Enforcement), Department of the
Treasury or the delegate of such officer. Appeals made by mail should
be addressed to, or delivered personally to: Privacy Act Amendment
Appeal, FLETC, Assistant Secretary (Enforcement), Department of the
Treasury, 1500 Pennsylvania Avenue, NW., Room 4312, Washington, DC
20220.
5. Statements of disagreement. ''Statements of Disagreement'' under
31 CFR 1.27(e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
such official and shall be delivered to the following location: General
Counsel, Department of the Treasury, Room 3000, Main Treasury Building,
1500 Pennsylvania Avenue, NW., Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ''Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
31 CFR 1.36 PART 2 -- NATIONAL SECURITY INFORMATION
31 CFR 1.36 Subpart A -- Original Classification
Sec.
2.1 Classification levels (1.1(a)).
2.2 Classification authority.
2.3 Listing of original classification authorities.
2.4 Record requirements.
2.5 Classification categories.
2.6 Duration of classification.
2.7 Identification and markings (1.5(a), (b) (c)).
2.8 Limitations on classification (1.6(c)).
31 CFR 1.36 Subpart B -- Derivative Classification
2.9 Derivative classification authority.
2.10 Listing derivative classification authorities.
2.11 Use of derivative classification (2.1).
2.12 Classification guides.
2.13 Derivative identification and markings (1.5(c) and 2.1(b)).
31 CFR 1.36 Subpart C -- Downgrading and Declassification
2.14 Listing downgrading and declassification authorities (3.1(b)).
2.15 Declassification policy (3.1).
2.16 Downgrading and declassification markings.
2.17 Systematic review for declassification (3.3).
2.18 Mandatory declassification review (3.4).
2.19 Assistance to the Department of State (3.3(b)).
2.20 Freedom of Information/Privacy Act requests (3.4).
31 CFR 1.36 Subpart D -- Safeguarding
2.21 General (4.1).
2.22 General restrictions on access (4.1).
2.23 Access by historical researchers and former Presidential
appointees (4.3).
2.24 Dissemination (4.1(d)).
2.25 Standards for security equipment (4.1(b) and 5.1(b)).
2.26 Accountability procedures (4.1(b)).
2.27 Storage (4.1(b)).
2.28 Transmittal (4.1(b)).
2.29 Telecommunications and computer transmissions.
2.30 Special access programs (1.2(a) and 4.2(a)).
2.31 Reproduction controls (4.1(b)).
2.32 Loss or possible compromise (4.1(b)).
2.33 Responsibilities of holders (4.1(b)).
2.34 Inspections (4.1(b)).
2.35 Security violations.
2.36 Disposition and destruction (4.1(b)).
2.37 National security decision directive 197.
31 CFR 1.36 Subpart E -- Implementation and Review
2.38 Departmental management.
2.39 Bureau administration.
2.40 Emergency planning (4.1(b)).
2.41 Emergency authority (4.1(b)).
2.42 Security education (5.3(a)).
31 CFR 1.36 Subpart F -- General Provisions
2.43 Definitions (6.1).
Authority: 31 U.S.C. 321; E.O. 12356, 47 FR 14874, April 6, 1982.
Source: 55 FR 1644, Jan. 17, 1990, unless otherwise noted.
31 CFR 1.36 Subpart A -- Original Classification
31 CFR 2.1 Classification levels (1.1(a)). /1/
(a) National security information (hereinafter also referred to as
''classified information'') shall be classified at one of the following
three levels:
(1) Top Secret shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause exceptionally
grave damage to the national security.
(2) Secret shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause serious damage
to the national security.
(3) Confidential shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security.
(b) Limitations (1.1(b)). Markings other than ''Top Secret,''
''Secret,'' and ''Confidential,'' shall not be used to identify national
security information. No other terms or phrases are to be used in
conjunction with these markings to identify national security
information, such as ''Secret/Sensitive'' or ''Agency Confidential''.
The terms ''Top Secret,'' ''Secret,'' and ''Confidential'' are not to be
used to identify non-classified Executive Branch information. The
administrative control legend, ''Limited Official Use'', is authorized
in Treasury Directive 71-02, ''Safeguarding Officially Limited
Information,'' which requires that information so marked is to be
handled, safeguarded and stored in a manner equivalent to national
security information classified Confidential.
(c) Reasonable Doubt (1.1(c)). When there is reasonable doubt about
the need to classify information, the information shall be safeguarded
as if it were ''Confidential'' information in accordance with subpart D
of this regulation, pending a determination about its classification.
Upon a final determination of a need for classification, the information
that is classified shall be marked as provided in 2.7. When there is
reasonable doubt about the appropriate classification level, the
information shall be safeguarded at the higher level in accordance with
subpart D, pending a determination of its classification level. Upon a
final determination of its classification level, the information shall
be marked as provided in 2.7.
/1/ Related references are related to sections of Executive Order
12356, 47 FR 14874, April 6, 1982.
31 CFR 2.2 Classification authority.
(a) The Secretary of the Treasury has been authorized by the
President to originally classify national security information as Top
Secret, Secret or Confidential. In addition to the Secretary of the
Treasury, the Deputy Secretary, the Under Secretary (International
Affairs), the Under Secretary (Finance), the Assistant Secretary
(International Affairs), the Treasurer of the United States, the
Assistant Secretary (Management), the Assistant Secretary (Enforcement),
the Assistant Secretary (Policy Management), and the Special Assistant
to the Secretary (National Security) are authorized to originally
classify national security information as Top Secret, Secret or
Confidential. The authority to classify inheres within the office and
may be exercised by a person acting in that capacity. Each of these
Treasury officials may also delegate the authority to classify national
security information but only at the Secret and Confidential levels.
The Assistant Secretary (Management) is hereby designated as the senior
Treasury official responsible for the Department's information security
program and, as such, may delegate the authority to classify information
at the Top Secret, Secret and Confidential levels.
(b) The General Counsel; the Director, Bureau of Alcohol, Tobacco
and Firearms; the Commissioner, United States Customs Service; the
Director, Bureau of Engraving and Printing; the Director, United States
Secret Service and the Departmental Director of Security are authorized
to originally classify national security information as Secret or
Confidential. This authority is not redelegable.
(c) The Inspector General is authorized to originally classify
national security information as Confidential. Such authority is not
redelegable.
(55 FR 1644, Jan. 4, 1990; 55 FR 13134, Apr. 9, 1990)
31 CFR 2.3 Listing of original classification authorities.
Delegations of original Top Secret, Secret and Confidential
classification authority shall be in writing and be reported annually to
the Departmental Director of Security, who shall maintain such
information on behalf of the Assistant Secretary (Management). These
delegations are to be limited to the minimum number absolutely required
for efficient administration. Periodic reviews and evaluations of such
delegations shall be made by the Departmental Director of Security to
ensure that the officials so designated have demonstrated a continuing
need to exercise such authority. If, after reviewing and evaluating the
information, the Departmental Director of Security determines that such
officials have not demonstrated a continuing need to exercise such
authority, the Departmental Director of Security shall recommend to the
Assistant Secretary (Management), as warranted, the reduction or
elimination of such authority. The Assistant Secretary (Management)
shall take appropriate action in consultation with the affected
official(s) and the Departmental Director of Security. Such action may
include relinquishment of this authority where the Assistant Secretary
(Management) determines that a firm basis for retention does not exist.
31 CFR 2.4 Record requirements.
The Departmental Director of Security shall maintain a listing by
name, position title and delegated classification level, of all
officials in the Departmental Offices who are authorized under this
regulation to originally classify information as Top Secret, Secret or
Confidential. Officials within the Departmental Offices with Top Secret
classification authority shall report in writing on TD F 71-01.14
(Report of Authorized Classifiers) to the Departmental Director of
Security, the names, position titles and authorized classification
levels of the officials designated by them in writing to have original
Secret or Confidential classification authority. The head of each
bureau shall maintain a similar listing of all officials in his or her
bureau authorized to apply original Secret and Confidential
classification and shall provide a copy of TD F 71-01.14, reflecting the
list of officials so authorized, to the Departmental Director of
Security. These listings shall be compiled and reported no less than
annually each October 15th as required by Treasury Directive 71-01,
''Agency Information Security Program Data''.
31 CFR 2.5 Classification categories.
(a) Classification in Context of Related Information (1.3(b)).
Certain information which would otherwise be unclassified may require
classification when combined or associated with other unclassified or
classified information. Such classification on an aggregate basis shall
be supported by a written explanation that, at a minimum, shall be
maintained with the file or referenced on the record copy of the
information.
(b) Unofficial Publication or Disclosure (1.3(d)). Following an
inadvertent or unauthorized publication or disclosure of information
identical or similar to information that has been classified in
accordance with the Order or predecessor Orders, the agency of primary
interest shall determine the degree of damage to the national security,
the need for continued classification, and, in coordination with the
agency in which the disclosure occurred, what action must be taken to
prevent similar occurrences under procedures contained in 2.32.
31 CFR 2.6 Duration of classification.
(a) Information Not Marked for Declassification (1.4). Information
classified under predecessor orders that is not subject to automatic
declassification shall remain classified until reviewed for possible
declassification.
(b) Authority to Extend Automatic Declassification Determinations
(1.4(b)). The authority to extend classification of information subject
to automatic declassification under any predecessor Executive Order to
the Order is limited to those officials who have classification
authority over the information and are designated in writing to have
original classification authority at the level of the information to
remain classified. Any decision to extend the classification on other
than a document-by-document basis shall be reported to the Assistant
Secretary (Management) who shall, in turn, report this fact to the
Director of the Information Security Oversight Office.
31 CFR 2.7 Identification and markings (1.5(a), (b) and (c)).
The information security system requires that standard markings be
applied to classified information. Except in extraordinary
circumstances as provided in section 1.5(a) of the Order, or as
indicated herein, the marking of paper and electronically created
documents shall not deviate from the following prescribed formats.
These markings shall also be affixed to material other than paper and
electronically created documents, including file folders, film, tape,
etc., or the originator shall provide holders or recipients of the
information with written instructions for protecting the information.
(a) Classification Level. The markings ''Top Secret,'' ''Secret,''
and ''Confidential'' are used to indicate: information that requires
protection as classified information under the Order; the highest level
of classification contained in a document; the classification level of
each page and, in abbreviated form, the classification of each portion
of a document.
(1) Overall Marking. The highest level of classification of
information in a document shall be marked in such a way as to
distinguish it clearly from the informational text. Markings shall
appear at the top and bottom of the outside of the front cover (if any),
on the title page (if any), on the first and last pages bearing text,
and on the outside of the back cover (if any).
(2) Page Marking. Each interior page of a classified document is to
be marked at the top and bottom, either according to the highest
classification of the content of the page, including the designation
''UNCLASSIFIED'' when it is applicable, or with the highest overall
classification of the document.
(3) Portion Marking. Only the Secretary of the Treasury may waive
the portion marking requirement for specified classes of documents or
information upon a written determination that:
(i) There will be minimal circulation of the specified documents or
information and minimal potential usage of the documents or information
as a source for derivative classification determinations; or
(ii) There is some other basis to conclude that the potential
benefits of portion marking are clearly outweighed by the increased
administrative burdens.
(b) Unless the portion marking requirement has been waived as
authorized, each portion of a document, including subjects and titles,
shall be marked by placing a parenthetical designation either
immediately preceding or following the text to which it applies. The
symbols, ''(TS)'' for Top Secret, ''(S)'' for Secret, ''(C)'' for
Confidential, and ''(U)'' for Unclassified shall be used for this
purpose. The symbol, ''(LOU)'' shall be used for Limited Official Use
information. If the application of parenthetical designations is not
practicable, the document shall contain a statement sufficient to
identify the information that is classified and the level of such
classification, as well as the information that is not classified. If
all portions of a document are classified at the same level, this fact
may be indicated by a statement to that effect, e.g. ''Entire Text is
Classified Confidential.'' If a subject or title requires
classification, an unclassified identifier may be applied to facilitate
reference.
(c) Classification Authority. If the original classifier is other
than the signer or approver of the document, his or her indentity shall
be shown at the bottom of the first and last pages as follows:
''CLASSIFIED BY (identification of original classification authority)''.
(d) Bureau and Office of Origin. If the identity of the originating
bureau or office is not apparent on the face of the document, it shall
be clearly indicated below the ''CLASSIFIED BY'' line.
(e) Downgrading and Declassification Instructions. Downgrading and,
as applicable, declassification instructions shall be shown as follows:
(1) For information to be declassified automatically on a specific
date:
Classified by
Office
Declassify on (date)
(2) For information to be declassified automatically upon the
occurrence of a specific event:
Classified by
Office
Declassify on (description of event)
(3) For information not to be declassified automatically:
Classified by
Office
Declassify on Origination Agency's Determination Required or ''OADR''
(4) For information to be downgraded automatically on a specific date
or upon occurrence of a specific event:
Classified by
Office
Downgrade to
on (date or description of event)
(f) Special Markings. -- (1) Transmittal Documents (1.5(c)). A
transmittal document shall indicate on its first page and last page, if
any, the highest classification of any information transmitted by it.
It shall also include on the first and last pages the following or
similar instruction:
(i) For an unclassified transmittal document:
Unclassified When Classified
Enclosure(s) Detached.
(ii) For a classified transmittal document:
Upon Removal of Attachment(s)
this Document is
(classification level of the transmittal document alone), or:
This Document is Classified
with Unclassified Attachment(s).
(2) Restricted Data or Formerly Restricted Data (6.2(a)). Restricted
Data or Formerly Restricted Data shall be marked in accordance with
regulations issued under the Atomic Energy Act of 1954, as amended.
Restricted Data is information dealing with the design, manufacture, or
utilization of atomic weapons, production of special nuclear material or
use of special nuclear material in the production of energy. Formerly
Restricted Data is classified information that has been removed from the
''restricted data'' category but still remains classified. It relates
primarily to the military utilization of atomic weapons.
(3) Intelligence Sources or Methods (1.5(c)). Documents that contain
information relating to intelligence sources or methods shall include
the following marking unless otherwise prescribed by the Director of
Central Intelligence: ''WARNING NOTICE -- INTELLIGENCE SOURCES OR
METHODS INVOLVED'' To avoid confusion as to the extent of dissemination
and use restrictions governing the information involved, this marking
may not be used in conjunction with special access or sensitive
compartmented information controls.
(4) Foreign Government Information (FGI) (1.5(c)). Documents that
contain FGI shall include either the marking ''FOREIGN GOVERNMENT
INFORMATION,'' or a marking that otherwise indicates that the
information is foreign government information. If the information is
foreign government information that must be concealed, given the
relationship or understanding with the foreign government providing the
information, the marking shall not be used and the document shall be
marked as if it were wholly of United States origin. However, such a
marking must be supported by a written explanation that, at a minimum,
shall be maintained with the file or referenced on the original or
record copy of the document or information.
(5) National Security Information (4.1(c)). Classified information
furnished outside the Executive Branch shall show the following marking:
NATIONAL SECURITY INFORMATION
Unauthorized Disclosure Subject to
Administrative and Criminal Sanctions
(6) Automated Data Processing (ADP) and Computer Output (1.5(c)).
(i) Documents that are generated via ADP or as computer output may be
marked automatically by systems software. If automatic marking is not
practicable, such documents must be marked manually.
(ii) Removable information storage media, however, will bear external
labels indicating the security classification of the information and
associated security markings, as applicable, such as handling caveats
and dissemination controls. Examples of such media include magnetic
tape reels, cartridges, and cassettes; removable disks, disk
cartridges, disk packs, and diskettes, including ''floppy'' or flexible
disks; paper tape reels; and magnetic and punched cards. Two labels
may be required on each medium: a color coded security classification
label, i.e., orange Standard Form 706 (Top Secret label), red SF 707
(Secret label), blue SF 708 (Confidential label), purple SF 709
(Classified label), green SF 710 (Unclassified label); and a white SF
711 (Data Descriptor label). National stock numbers of the labels,
which are available through normal Federal Supply channels, are as
follows: SF 706, 7540-01-207-5536; SF 707, 7450-01-207-5537; SF 708,
7450-01-207-5538; SF 709, 7540-01-207-5540; SF 710, 7540-01-207-5539
and SF 711, 7540-01-207-5541. Treasury Directive 71-02 provides for the
use of a green ''Officially Limited Information'' label, TD F 71-05.2,
to identify information so marked.
(iii) In a mixed environment in which classified and unclassified
information in processed or stored, the ''Unclassified'' label must be
used to identify the media containing unclassified information. In
environments in which only unclassified information is processed or
stored, the use of the ''Unclassified'' label is not required.
Unclassified media, however, that are on loan from (and must be returned
to) vendors do not require the ''Unclassified'' label, but each requires
a Data Descriptor label with the words, ''Unclassified Vendor Medium''
entered on it.
(iv) Each medium shall be appropriately affixed with a classification
label and, as applicable, with a Data Descriptor label at the earliest
practicable time as soon as the proper security classification or
control has been established. Labels shall be conspicuously placed on
media in a manner that will not adversely affect operation of the
equipment in which the media is used. Once applied, the label is not to
be removed. A label to identify a higher level of classification may,
however, be applied on top of a lower classification level in the event
that the content of the media changes, e.g., from Confidential to
Secret. A lower classification label may not be applied to media
already bearing a higher classification label. Personnel shall be
responsible for appropriately labeling and controlling ADP and computer
storage media within their possession.
(g) Electronically Transmitted Information (Messages) (1.5(c)).
Classified information that is transmitted electronically shall be
marked as follows:
(1) The highest level of classification shall appear before the first
line of text;
(2) A ''CLASSIFIED BY'' line is not required;
(3) The duration of classification shall appear as follows:
(i) For information to be declassified automatically on a specific
date: ''DECL: (date)'';
(ii) For information to be declassified upon occurrence of a specific
event: ''DECL: (description of event)'';
(iii) For information not to be automatically declassified which
requires the originating agency's determination (see also 2.7(e)(3)):
''DECL: OADR'';
(iv) For information to be automatically downgraded: ''DOWNGRADE TO
(classification level to which the information is to be downgraded) ON
(date or description of event on which downgrading is to occur)''.
(4) Portion marking shall be as prescribed in 2.7(a)(3);
(5) Specially designated markings as prescribed in 2.7(f) (2), (3),
and (4) shall appear after the marking for the highest level of
classification. These include:
(i) Restricted Data or Formerly Restricted Data;
(ii) Information concerning intelligence sources or methods:
''WNINTEL,'' unless otherwise prescribed by the Director of Central
Intelligence; and
(iii) Foreign Government Information (FGI).
(6) Paper copies of electronically transmitted messages shall be
marked as provided in 2.7(a) (1), (2), and (3).
(h) Changes in Classification Markings (4.1(b)). When a change is
made in the duration of classified information, all holders of record
shall be promptly notified. If practicable, holders of record shall
also be notified of a change in the level of classification. Holders
shall alter the markings on their copy of the information to conform to
the change, citing the authority for it. If the remarking of large
quantities of information is unduly burdensome, the holder may attach a
change of classification notice to the storage unit in lieu of the
marking action otherwise required. Items withdrawn from the collection
for purposes other than transfer for storage shall be marked promptly in
accordance with the change notice.
31 CFR 2.8 Limitations on classification (1.6(c)).
(a) Before reclassifying information as provided in section 1.6(c) of
the Order, authorized officials, who must have original classification
authority and jurisdiction over the information involved, shall consider
the following factors which shall be addressed in a report to the
Assistant Secretary (Management) who shall in turn forward a report to
the Director of the Information Security Oversight Office:
(1) The elapsed time following disclosure;
(2) The nature and extent of disclosure;
(3) The ability to bring the fact of reclassification to the
attention of persons to whom the information was disclosed;
(4) The ability to prevent further disclosure; and
(5) The ability to retrieve the information voluntarily from persons
not authorized access in its reclassified state.
(b) Information may be classified or reclassified after it has been
requested under the Freedom of Information Act (5 U.S.C. 552), the
Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory declassification
review provisions of the Order if such classification meets the
requirements of the Order and is accomplished personally and on a
document-by-document basis by the Secretary of the Treasury, the Deputy
Secretary, the Assistant Secretary (Management) or an official with
original Top Secret classification authority. Such reclassification
actions shall be reported in writing to the Departmental Director of
Security.
(c) In no case may information be classified or reclassified in order
to conceal violations of law, inefficiency, or administrative error; to
prevent embarrassment to a person, organization, or agency; to restrain
competition; or to prevent or delay the release of information that
does not require protection in the interest of national security.
31 CFR 2.8 Subpart B -- Derivative Classification
31 CFR 2.9 Derivative classification authority.
Officials with original classification authority may derivatively
classify at the same level on the basis of source documents or via use
of an approved classification guide. Original classifiers may delegate
derivative classification authority but only up to and including their
own level of original classification authority.
(a) The General Counsel, the Director, Bureau of Alcohol, Tobacco and
Firearms; the Commissioner, United States Customs Service; the
Director, United States Secret Service; the Director, Federal Law
Enforcement Training Center; and the Departmental Director of Security
are authorized to derivatively classify national security information as
Top Secret, Secret or Confidential on the basis of source documents or
via use of an approved classification guide. The above officials may
not redelegate Top Secret derivative classification authority. The
Director, Federal Law Enforcement Training Center, may not redelegate
derivative classification authority at any level. The remaining
officials may redelegate Secret and Confidential derivative
classification authority.
(b) The Commissioner, Internal Revenue Service; the Fiscal Assistant
Secretary; the Assistant Secretary (Economic Policy); the Executive
Secretary and the Inspector General are authorized to derivatively
classify national security information as Secret or Confidential, on the
basis of source documents or via use of an approved classification
guide. This authority is not redelegable. The Inspector General,
however, may redelegate derivative classification authority for
Confidential national security information.
(c) The Assistant Secretary (Domestic Finance); the Assistant
Secretary (Tax Policy); the Comptroller of the Currency; the
Commissioner, Financial Management Service; the Commissioner, Bureau of
the Public Debt; and the Director, United States Mint are authorized to
derivatively classify national security information as Confidential, on
the basis of source documents or via use of an approved classification
guide. This authority is not redelegable.
(d) Officials identified in 2.09 as having derivative classification
authority may also administratively control and decontrol officially
limited information using the legend ''Limited Official Use'' and may
redelegate their authority to control and decontrol. Such redelegations
shall be in writing on TD F 71-05.1, ''Designation of
Controlling/Decontrolling Officials''.
31 CFR 2.10 Listing derivative classification authorities.
Delegations of derivative classification authority to officials not
otherwise identified in 2.9, shall be in writing and reported annually
each October 15th to the Departmental Director of Security on TD F
71-01.18 (Report of Authorized Derivative Classifiers). Such
delegations shall be limited to the minimum number absolutely required
for efficient administration. Periodic reviews and evaluations of such
delegations shall be made by the Departmental Director of Security to
ensure that officials so designated have demonstrated a continuing need
to exercise such authority. If after reviewing and evaluating the
information the Departmental Director of Security determines that such
officials have not demonstrated a continuing need to exercise such
authority, the Departmental Director of Security shall recommend to the
Assistant Secretary (Management), as warranted, the reduction or
elimination of such authority. The Assistant Secretary (Management)
shall take appropriate action in consultation with the affected
official(s) and the Departmental Director of Security. Such action may
include relinquishment of this authority where the Assistant Secretary
(Management) determines that a firm basis for retention does not exist.
31 CFR 2.11 Use of derivative classification (2.1).
The application of derivative classification markings is a
responsibility of those who incorporate, paraphrase, restate, or
generate in new form information that is already classified, and of
those who apply markings in accordance with instructions from an
authorized original classifier or in accordance with an approved
classification guide. If an individual who applies derivative
classification markings believes that the paraphrasing, restating or
summarizing of classified information has changed the level of or
removed the basis for classification, that person must consult an
appropriate official of the originating agency or office of origin who
has the authority to upgrade, downgrade or declassify the information
for a final determination. A sample marking of derivatively classified
documents is set forth in 2.13.
31 CFR 2.12 Classification guides.
(a) General (2.2(a)). A classification guide is a reference manual
which assists document drafters and document classifiers in determining
what types or categories of material have already been classified. The
classification guide shall, at a minimum:
(1) Identify and categorize the elements of information to be
protected;
(2) State which classification level applies to each element or
category of information; and
(3) Prescribe declassification instructions for each element or
category of information in terms of:
(i) A period of time,
(ii) The occurrence of an event, or
(iii) A notation that the information shall not be declassified
automatically without the approval of the originating agency i.e.,
''OADR''.
(b) Review and Record Requirements (2.2(a)). (1) Each classification
guide shall be kept current and shall be reviewed at least once every
two years and updated as necessary. Each office within the Departmental
Offices and the respective offices of each Treasury bureau possessing
original classification authority for national security information
shall maintain a list of all classification guides in current use by
them. A copy of each such classification guide in current use shall be
furnished to the Departmental Director of Security who shall maintain
them on behalf of the Assistant Secretary (Management).
(2) Each office and bureau that prepares and maintains a
classification guide shall also maintain a record of individuals
authorized to apply derivative classification markings in accordance
with a classification guide. This record shall be maintained on TD F
71-01.18 (Report of Authorized Derivative Classifiers) which shall be
reported annually each October 15th to the Departmental Director of
Security.
(c) Waivers (2.2(c)). Any authorized official desiring a waiver of
the requirement to issue a classification guide shall submit in writing
to the Assistant Secretary (Management) a request for approval of such a
waiver. Any request for a waiver shall contain, at a minimum, an
evaluation of the following factors:
(1) The ability to segregate and describe the elements of
information;
(2) The practicality of producing or disseminating the guide because
of the nature of the information;
(3) The anticipated usage of the guide as a basis for derivative
classification; and
(4) The availability of alternative sources for derivatively
classifying the information in a uniform manner.
31 CFR 2.13 Derivative identification and markings (1.5(c) and 2.1(b)).
Information classified derivatively on the basis of source documents
or classification guides shall bear all markings prescribed in 2.7 (a)
through (f), as are applicable. Information for these markings shall be
taken from the source document or instructions in the appropriate
classification guide.
(a) Classification Authority. The authority for classification shall
be shown as follows:
Derivatively Classified by
Office
Derived from
Declassify on
If a document is classified on the basis of more than one source
document or classification guide, the authority for classification shall
be shown on the ''DERIVED FROM'' line as follows: ''MULTIPLE CLASSIFIED
SOURCES''. In these cases, the derivative classifier must maintain the
identification of each source with the file or record copy of the
derivatively classified document. A document derivatively classified on
the basis of a source document that is marked ''MULTIPLE CLASSIFIED
SOURCES'' shall cite the source document on its ''DERIVED FROM'' line
rather than the term: ''MULTIPLE CLASSIFIED SOURCES''. Preparers of
such documentation shall ensure that the identification of the
derivative classifier is indicated. Use of the term ''MULTIPLE
CLASSIFIED SOURCES,'' is not to be a substitute for the identity of the
derivative classification authority.
(b) Downgrading and Declassification Instructions. Dates or events
for automatic downgrading or declassification shall be carried forward
from the source document. This includes the notation ''ORIGINATING
AGENCY'S DETERMINATION REQUIRED'' to indicate that the document is not
to be downgraded or declassified automatically, or instructions as
directed by a classification guide, which shall be shown on a
''DOWNGRADE TO'' or ''DECLASSIFY ON'' line as follows:
DOWNGRADE TO
ON (date, description of event, or OADR) or,
DECLASSIFY ON (date, description of event, or OADR)
31 CFR 2.13 Subpart C -- Downgrading and Declassification
31 CFR 2.14 Listing downgrading and declassification authorities
3.1(b)).
Downgrading and declassification authority may be exercised by the
official authorizing the original classification, if that official is
still serving in the same position; a successor in that capacity; a
supervisory official of either; or officials delegated such authority
in writing by the Secretary of the Treasury or the Assistant Secretary
(Management). Such officials may not downgrade or declassify
information which is classified at a level exceeding their own
designated classification authority. A listing of officials delegated
such authority, in writing, shall be identified on TD F 71-01.11 (Report
of Authorized Downgrading and Declassification Officials) and reported
annually each October 15th to the Departmental Director of Security who
shall maintain them on behalf of the Assistant Secretary (Management).
Current listings of officials so designated shall be maintained by
Treasury bureaus and offices within the Departmental Offices.
(55 FR 1644, Jan. 17, 1990; 55 FR 13134, Apr. 9, 1990)
31 CFR 2.15 Declassification policy (3.1).
In making determinations under section 3.1(a) of the Order, officials
shall respect the intent of the Order to protect foreign government
information and confidential foreign sources.
31 CFR 2.16 Downgrading and declassification markings.
Whenever a change is made in the original classification or in the
dates of downgrading or declassification of any classified information,
it shall be promptly and conspicuously marked to indicate the change,
the authority for the action, the date of the action, and the identity
of the person taking the action. Earlier classification markings shall
be cancelled or otherwise obliterated when practicable. See also
2.7(h).
31 CFR 2.17 Systematic review for declassification (3.3).
(a) Permanent Records. Systematic review is applicable only to those
classified records and presidential papers or records that the Archivist
of the United States, acting under the Federal Records Act, has
determined to be of sufficient historical or other value to warrant
permanent retention.
(b) Non-Permanent Classified Records. Non-permanent classified
records shall be disposed of in accordance with schedules approved by
the Administrator of General Services under the Records Disposal Act.
These schedules shall provide for the continued retention of records
subject to an ongoing mandatory declassification review request.
(c) Systematic Declassification Review Guidelines (3.3(a)). As
appropriate, guidelines for systematic declassification review shall be
issued by the Assistant Secretary (Management) in consultation with the
Archivist of the United States, the Director of the Information Security
Oversight Office and Department officials, to assist the Archivist in
the conduct of systematic reviews. Such guidelines shall be reviewed
and updated at least every five years unless earlier review is requested
by the Archivist.
(d) Foreign Government Systematic Declassification Review Guidelines
(3.3(a)). As appropriate, guidelines for systematic declassification
review of foreign government information shall be issued by the
Assistant Secretary (Management) in consultation with the Archivist of
the United States, the Director of the Information Security Oversight
Office, Department officials and other agencies having declassification
authority over the information. These guidelines shall be reviewed and
updated every five years unless earlier review is requested by the
Archivist.
(e) Special Procedures. The Department shall be bound by the special
procedures for systematic review of classified cryptologic records and
classified records pertaining to intelligence activities (including
special activities), or intelligence sources or methods issued by the
Secretary of Defense and the Director of Central Intelligence,
respectively.
31 CFR 2.18 Mandatory declassification review (3.4).
(a) Except as provided by section 3.4 (b) of the Order, all
information classified by the Department under the Order or any
predecessor Executive Order shall be subject to declassification review
by the Department, if:
(1) The request is made by a United States citizen or permanent
resident alien, a Federal agency, or a state or local government;
(2) The request describes the document or material containing the
information with sufficient specificity to enable the Department to
locate it with a reasonable amount of effort; and
(3) The requester provides substantial proof as to his or her United
States citizenship or status as a permanent resident alien, e.g., a copy
of a birth certificate, a certificate of naturalization, official
passport or some other means of identity which sufficiently describes
the requester's status. A permanent resident alien is any individual,
who is not a citizen or national of the United States, who has been
lawfully accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws, such
status not having changed. Permanent means a relationship of continuing
or lasting nature, as distinguished from temporary, but a relationship
may be permanent even though it is one that may be dissolved eventually
at the instance either of the United States or of the individual, in
accordance with law.
(b) Processing -- (1) Initial Requests for Classified Records
Originated by the Department. Requests for mandatory declassification
review shall be directed to the Departmental Office of Security, 1500
Pennsylvania Avenue, NW., Washington, DC 20220. Upon receipt of each
request for declassification, pursuant to section 3.4 of the Order, the
following procedures shall apply:
(i) The Departmental Office of Security shall acknowledge the receipt
of the request in writing.
(ii) A valid mandatory declassification review request need not
identify the requested information by date or title of the responsive
records, but must be of sufficient particularity to allow Treasury
personnel to locate the records containing the information sought with a
reasonable amount of effort. Whenever a request does not reasonably
describe the information sought, the requester shall be notified by the
Departmental Office of Security that unless additional information is
provided or the scope of the request is narrowed, no further action will
be undertaken.
(iii) The Departmental Office of Security shall determine the
appropriate office or bureau to take action on the request and shall
forward the request to that office or bureau.
(iv) In responding to mandatory declassification review requests, the
appropriate reviewing officials shall make a prompt declassification
determination. The Departmental Office of Security shall notify the
requester if additional time is needed to process the request.
Reviewing officials shall also identify the amount of search and/or
review time required to process the request. The Department shall make
a final determination within one year from the date of receipt except in
unusual circumstances. When information cannot be declassified in its
entirety, reasonable efforts, consistent with other applicable laws,
will be made to release those declassified portions of the requested
information which constitute a coherent segment. Upon the denial or
partial denial of an initial request, the Departmental Office of
Security shall also notify the requester of the right of an
administrative appeal which must be filed with the Assistant Secretary
(Management) within 60 days of receipt of the denial.
(v) When the Department receives a mandatory declassification review
request for records in its possession that were originated by another
agency, the Departmental Office of Security shall forward the request to
that agency. The Departmental Office of Security shall include a copy
of the records requested together with the Department's recommendations
for action. Upon receipt, the originating agency shall process the
request in accordance with the Directive 32 CFR 2001.32(a)(2)(i). The
originating agency shall also be requested to communicate its
declassification determination to Treasury.
(vi) When another agency forwards to the Department a request for
information in that agency's custody that has been classified by
Treasury, the Departmental Office of Security shall:
(A) Advise the other agency as to whether it can notify the requester
of the referral;
(B) Review the classified information in coordination with other
agencies that have a direct interest in the subject matter; and
(C) Respond to the requester in accordance with the procedures in
2.18(b)(1)(iv). If requested, Treasury's determination shall be
communicated to the referring agency.
(vii) Appeals of denials of a request for declassification shall be
referred to the Assistant Secretary (Management) who shall normally make
a determination within 30 working days following the receipt of an
appeal. If additional time is required to make a determination, the
Assistant Secretary (Management) shall notify the requester of the
additional time needed and provide the requester with the reason for the
extension. The Assistant Secretary (Management) shall notify the
requester in writing of the final determination and, as applicable, the
reasons for any denial.
(viii) Except as provided in this paragraph, the Department shall
process mandatory declassification review requests for classified
records containing foreign government information in accordance with
2.18(a). The agency that initially received or classified the foreign
government information shall be responsible for making a
declassification determination after consultation with concerned
agencies. If upon receipt of the request, the Department determines
that Treasury is not the agency that received or classified the foreign
government information, it shall refer the request to the appropriate
agency for action. Consultation with the foreign originator through
appropriate channels may be necessary prior to final action on the
request.
(ix) Mandatory declassification review requests for cryptologic
information and/or information concerning intelligence activities
(including special activities) or intelligence sources or methods shall
be processed solely in accordance with special procedures issued by the
Secretary of Defense and the Director of Central Intelligence,
respectively.
(x) The fees to be charged for mandatory declassification review
requests shall be for search and/or review and duplication. The fee
charges for services of Treasury personnel involved in locating and/or
reviewing records shall be at the rate of a GS-10, Step 1, for each hour
or fraction thereof, except that no charge shall be imposed for search
and/or review consuming less than one hour.
(A) Photocopies per page up to 8 1/2" by 14" shall be charged at the
rate of 10 cents each except that no charge will be imposed for
reproducing ten (10) pages or less when search and/or review time
requires less than one hour.
(B) When it is estimated that the costs associated with the mandatory
declassification review request will exceed $100.00, the Departmental
Office of Security shall notify the requester of the likely cost and
obtain satisfactory written assurance of full payment or may require the
requester to make an advance payment of the entire fee before continuing
to process the request. The Department reserves the right to request
prepayment after a mandatory declassification review request is
processed and before documents are released. In the event the requester
does not agree to pay the actual charges, he or she shall advise how to
proceed with the mandatory declassification review request. Failure of
a requester to pay charges after billing will result in future requests
not being honored.
(C) In order for a requester's initial request to be processed it
shall be accompanied by a statement that he or she is agreeable to
paying fees for search and/or review and copying. In the event the
initial request does not include this statement, processing of the
request will be held in abeyance until such time as the required
statement is received. Failure to provide a response within a
reasonable amount of time will serve as the basis for administratively
terminating the mandatory declassification review request.
(D) Payment of fees shall be made by check or money order payable to
the Treasurer of the United States. Fees levied by the Department of
the Treasury for mandatory declassification review requests are separate
and distinct from any other fees which might be imposed by a
Presidential Library, the National Archives and Records Administration
or another agency or department.
31 CFR 2.19 Assistance to the Department of State (3.3(b)).
The Secretary of the Treasury shall assist the Department of State in
its preparation of the ''Foreign Relations of the United States'' series
by facilitating access to appropriate classified material in Treasury
custody and by expediting declassification review of documents proposed
for inclusion in the series.
31 CFR 2.20 Freedom of Information/Privacy Act requests (3.4).
The Department of the Treasury shall process requests for records
containing classified national security information that are submitted
under the provisions of the Freedom of Information Act, as amended, or
the Privacy Act of 1974, as amended, in accordance with the provisions
of those Acts.
31 CFR 2.20 Subpart D -- Safeguarding
31 CFR 2.21 General (4.1).
Information classified pursuant to this Order or predecessor Orders
shall be afforded a level of protection against unauthorized disclosure
commensurate with its level of classification.
31 CFR 2.22 General restrictions on access (4.1).
(a) Determination of Need-To-Know. Classified information shall be
made available to a person only when the possessor of the classified
information establishes in each instance, except as provided in section
4.3 of the Order, that access is essential to the accomplishment of
official United States Government duties or contractual obligations.
(b) Determination of Trustworthiness. A person is eligible for
access to classified information only after a showing of trustworthiness
as determined by the Secretary of the Treasury based upon appropriate
investigations in accordance with applicable standards and criteria.
(c) Classified Information Nondisclosure Agreement. Standard Form
312 (Classified Information Nondisclosure Agreement) or the prior SF
189, bearing the same title, are nondisclosure agreements between the
United States and an individual. The execution of either the SF 312 or
SF 189 agreement by an individual is necessary before the United States
Government may grant the individual access to classified information.
Bureaus and the Departmental Offices must retain executed copies of the
SF 312 or prior SF 189 in file systems from which the agreements can be
expeditiously retrieved in the event the United States must seek their
enforcement. Copies or legally enforceable facsimiles of the SF 312 or
SF 189 must be retained for 50 years following their date of execution.
The national stock number for the SF 312 is 7540-01-280-5499.
31 CFR 2.23 Access by historical researchers and former presidential
appointees (4.3).
(a) Access to classified information may be granted only as is
essential to the accomplishment of authorized and lawful United States
Government purposes. This requirement may be waived, however, for
persons who:
(1) Are engaged in historical research projects, or
(2) Previously have occupied policymaking positions to which they
were appointed by the President.
(b) Access to classified information may be granted to historical
researchers and to former Presidential appointees upon a determination
of trustworthiness; a written determination that such access is
consistent with the interests of national security; the requestor's
written agreement to safeguard classified information; and the
requestor's written consent to have his or her notes and manuscripts
reviewed to ensure that no classified information is contained therein.
The conferring of historial researcher status does not include
authorization to release foreign government information or other
agencies' classified information per 2.24 of this part. By the terms
of section 4.3(b)(3) of the Order, former Presidential appointees not
engaged in historical research may only be granted access to classified
documents which they ''originated, reviewed, signed or received while
serving as a Presidential appointee.'' Coordination shall be made with
the Departmental Director of Security with respect to the required
written agreements to be signed by the Department and such historical
researchers or former Presidential appointees, as a condition of such
access and to ensure the safeguarding of classified information.
(c) If the access requested by historical researchers and former
Presidential appointees requires the rendering of services for which
fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the
requestor shall be so notified and the fees may be imposed. Treasury's
fee schedule identified in 2.18(b)(1)(x), applicable to mandatory
declassification review, shall also apply to fees charged for services
provided to historical researchers and former Presidential appointees
for search and/or review and copying.
31 CFR 2.24 Dissemination (4.1(d)).
Except as otherwise provided by section 102 of the National Security
Act of 1947, 61 Stat. 495, 50 U.S.C. 403, classified information
originating in another agency may not be disseminated outside the
Department without the consent of the originating agency.
31 CFR 2.25 Standards for security equipment (4.1(b) and 5.1(b)).
The Administrator of General Services issues (in coordination with
agencies originating classified information), establishes and publishes
uniform standards, specifications, and supply schedules for security
equipment designed to provide for secure storage and to destroy
classified information. Treasury bureaus and the Departmental Offices
may establish more stringent standards for their own use. Whenever new
security equipment is procured, it shall be in conformance with the
standards and specifications referred to above and shall, to the maximum
extent practicable, be of the type available through the Federal Supply
System.
31 CFR 2.26 Accountability procedures (4.1(b)).
(a) Top Secret Control Officers. Each Treasury bureau and the
Departmental Offices shall designate a primary and alternate Top Secret
Control Officer. Within the Departmental Offices, the Top Secret
Control Officer function will be established in the Office of the
Executive Secretary for collateral Top Secret information and in the
Office of the Special Assistant to the Secretary (National Security)
with respect to sensitive compartmented information. The term
''collateral'' refers to national security information classified
Confidential, Secret, or Top Secret under the provisions of Executive
Order 12356 or prior Orders, for which special intelligence community
systems of compartmentation (such as sensitive compartmented
information) or special access programs are not formally established.
Top Secret Control Officers so designated must have a Top Secret
security clearance and shall:
(1) Initially receive all Top Secret information entering their
respective bureau, including the Departmental Offices. Any Top Secret
information received by a Treasury bureau or Departmental Offices
employee shall be immediately hand carried to the designated Top Secret
Control Officer for proper accountability.
(2) Maintain current accountability records of Top Secret information
received within their bureau or office.
(3) Ensure that Top Secret information is properly stored and that
Top Secret information under their control is personally destroyed, when
required. Top Secret information must be destroyed in the presence of
an appropriately cleared official who shall actually witness such
destruction. Accordingly, the use of burnbags to store Top Secret
information, pending final destruction at a later date, is not
authorized.
(4) Ensure that prohibitions against reproduction of Top Secret
information are strictly followed.
(5) Conduct annual physical inventories of Top Secret information.
An inventory shall be conducted in the presence of an individual with an
appropriate security clearance. The inventory shall be completed
annually and signed by the Top Secret Control Officer and the witnessing
individual.
(6) Ensure that Top Secret documents are downgraded, declassified,
retired or destroyed as required by regulations or other markings.
(7) Attach a TD F 71-01.7 (Top Secret Document Record) to the first
page or cover of each copy of Top Secret information. The Top Secret
Document Record shall be completed by the Top Secret Control Officer and
shall serve as a permanent record.
(8) Ensure that all persons having access to Top Secret information
sign the Top Secret Document Record. This also includes persons to whom
oral disclosure of the contents is made.
(9) Maintain receipts concerning the transfer and destruction of Top
Secret information. Record all such actions on the Top Secret Document
Record which shall be retained for a minimum of three years.
(10) As received, number in sequence each Top Secret document in a
calendar year series (e.g. TS 89-001). This number shall be posted on
the face of the document and on all forms required for control of Top
Secret information.
(11) Attach a properly executed TD F 71-01.5 (Classified Document
Record of Transmittal) when a Top Secret document is transmitted
internally or externally.
(12) Verify, prior to releasing Top Secret information, that the
recipient has both a security clearance and is authorized access to such
information.
(13) Report, in writing, all Top Secret documents unaccounted for to
the Assistant Secretary (Management) who shall take appropriate action
in conjunction with the Departmental Director of Security.
(14) Assure that no individual within his or her office or bureau
transmits Top Secret information to another individual or office without
the knowledge and consent of the Top Secret Control Officer.
(15) Ensure upon receipt that a Standard Form 703 (Top Secret Cover
Sheet) is affixed to such information.
(16) Notify office and/or bureau employees annually in writing of the
designated control point for all incoming and outgoing Top Secret
information.
(17) Be notified as to the transmission, per 2.28(b), whenever Top
Secret information is sent outside of a Treasury bureau or office within
the Departmental Offices.
(b) Top Secret Control Officer Listings. In order for the
Departmental Director of Security to maintain a current listing of Top
Secret Control Officers within the Department, each Treasury bureau and
the Departmental Offices shall annually report each October 15th in
writing to the Departmental Office of Security, the identities of the
office(s) and names of the officials designated as their primary and
alternate Top Secret Control Officers. Any changes in these
designations shall be reported to the Departmental Director of Security
within thirty days.
(c) Top Secret Document Record. Upon receipt in the Department a
green, color coded, TD F 71-01.7 (Top Secret Document Record) shall be
attached by the Top Secret Control Officer to the first page or cover of
the original and each copy of Top Secret information. The Top Secret
Document Record shall remain attached to the Top Secret information
until it is either transferred to another United States Government
agency, downgraded, declassified or destroyed. The Top Secret Document
Record, which shall initially be completed by the Top Secret Control
Officer, shall identify the Top Secret information attached, and shall
serve as a permanent record of the information. All persons, including
stenographic and clerical personnel, having access to the information
attached to the Top Secret Document Record must list their name and the
date on the TD F 71-01.7 prior to accepting responsibility for its
custody. The TD F 71-01.7 shall also indicate those individuals to whom
only oral disclosure of the contents is made. Whenever any Top Secret
information is transferred to another United States Government agency,
downgraded, declassified or destroyed, the Top Secret Control Officer
shall record the action on the Top Secret Document Record and retain it
for a minimum or three years after which time it may be destroyed. In
order to maintain the integrity of the color coding process the
photocopying and use of non-color coded Top Secret Document Record forms
is prohibited.
(d) Classified Document Record of Transmittal. TD F 71-01.5
(Classified Document Record of Transmittal) shall be the exclusive
classified document accountability record for use within the Department
of the Treasury. No other logs or records shall be required except for
the use of TD F 71-01.7 which is applicable to Top Secret information.
TD F 71-01.5 shall be used for single or multiple document receipting
and for internal and external routing. The inclusion of classified
information on TD F 71-01.5 is to be avoided. In the event the subject
title is classified, a recognizable short title shall be used, e.g.,
first letter of each word in the subject title. Several items may be
transmitted to the same addressee with one TD F 71-01.5. TD F's 71-01.5
shall be maintained for a three year period after which the form may be
destroyed. No record of the actual destruction of the TD F 71-01.5 is
necessary.
(1) Top Secret Information. Top Secret information shall be subject
to a continuous receipt system regardless of how brief the period of
custody. TD F 71-01.5 shall be used for this purpose. Top Secret
accountability records shall be maintained by Top Secret Control
Officers separately from the accountability records of other classified
information.
(2) Secret Information. Receipt on TD F 71-01.5 shall be required
for transmission of Secret information between bureaus, offices and
separate agencies. Responsible office heads shall determine
administrative procedures required for the internal control within their
respective offices. The volume of classified information handled and
personnel resources available must be considered in determining the
level of adequate security measures while at the same time maintaining
operational efficiency.
(3) Confidential and Limited Official Use Information. Receipts for
Confidential and Limited Official Use information shall not be required
unless the originator indicates that receipting is necessary.
(55 FR 1644, Jan. 17, 1990; 55 FR 13134, Apr. 9, 1990)
31 CFR 2.27 Storage (4.1(b)).
Classified information shall be stored only in facilities or under
conditions designed to prevent unauthorized persons from gaining access
to it.
(a) Minimum Requirements for Physical Barriers. -- (1) Top Secret.
Top Secret information shall be stored in a GSA-approved security
container with an approved, built-in, three-position, dial-type,
changeable, combination lock; in a vault protected by an alarm system
and response force; or in other types of storage facilities that meet
the standards for Top Secret information established under the
provisions of 2.25. Top Secret information stored outside the United
States must be in a facility afforded diplomatic status. One or more of
the following supplementary controls is required:
(i) The area that houses the security container or vault shall be
subject to the continuous protection of U.S. guard or duty personnel;
(ii) U.S. Guard or duty personnel shall inspect the security
container or vault at least once every two hours; or
(iii) The security container or vault shall be controlled by an alarm
system to which a force will respond in person within 15 minutes.
Within the United States, the designated security officer in each
Treasury bureau and the Department Offices shall prescribe those
supplementary controls deemed necessary to restrict unauthorized access
to areas in which such information is stored. Any vault used for the
storage of sensitive compartmented information shall be configured to
the specifications of the Director of Central Intelligence. Prior to an
office or bureau operating such a vault, formal written certification
for its use must first be obtained from the Special Assistant to the
Secretary (National Security) as the senior Treasury official of the
Intelligence Community.
(2) Secret and Confidential. Secret and Confidential information
shall be stored in a manner and under the conditions prescribed for Top
Secret information, or in a container, vault, or alarmed area that meets
the standards for Secret or Confidential information established under
the provisions of 2.25. Secret and Confidential information may also be
stored in a safe-type filing cabinet having a built-in, three-position,
dial-type, changeable, combination lock, and may continue to be stored
in a steel filing cabinet equipped with a steel lock-bar secured by a
GSA-approved three-position, dial-type, changeable, combination padlock.
The modification, however, of steel filing cabinets to barlock-type as
storage equipment for classified information and material is prohibited
and efforts are to be made to selectively phase out the use of such
barlock cabinets for storage of Secret information. Exceptions may be
authorized only by the Departmental Director of Security upon written
request from the designated bureau security officer. The designated
security officer in each Treasury bureau and the Departmental Offices
shall prescribe those supplementary controls deemed necessary to
restrict unauthorized access to areas in which such information is
stored. Access to bulky Secret and Confidential material in weapons
storage areas, strong rooms, evidence vaults, closed areas or similar
facilities shall be controlled in accordance with requirements approved
by the Department. At a minimum, such requirements shall prescribe the
use of GSA-approved, key-operated, high-security padlocks. For Secret
and Confidential information stored outside the United States, it shall
be stored in the manner authorized for Top Secret, in a GSA-approved
safe file, or in a barlick cabinet equipped with a security-approved
combination padlock if the cabinet is located in a security-approved
vault and/or in a restricted area to which access is controlled by
United States citizen personnel on a 24-hour basis.
(b) Combinations. -- (1) Equipment in Service. Combinations to
dial-type, changeable, combination locks shall be changed only by
persons having an appropriate security clearance, and shall be changed,
(i) Whenever such equipment is placed in use;
(ii) Whenever a person knowing the combination no longer requires
access to it;
(iii) Whenever a combination has been subjected to possible
compromise;
(iv) Whenever the equipment is taken out of service: or
(v) At least once each year.
Knowledge of combinations shall be limited to the minimum number of
persons necessary for operating purposes. Records of combinations shall
be classified no lower than the highest level of classified information
that is protected by the combination lock. When securing a combination
lock, the dial must be turned at least four (4) complete times in the
same direction after closing. Defects in or malfunctioning of storage
equipment protecting classified national security or officially limited
information must be reported immediately to the designated office or
bureau security official for appropriate action.
(2) Equipment Out of Service. When security equipment, used for the
storage of classified national security or officially limited
information, is taken out of service, it shall be physically inspected
to ensure that no classified information or officialy limited
information remains therein. Built-in, three-position, dial-type,
changeable, combination locks shall be reset to the standard combination
50-25-50 and combination padlocks shall be reset to the standard
combination 10-20-30. The designated security officer in each Treasury
bureau and the Departmental Offices shall prescribe such supplementary
controls deemed necessary to fulfill their individual needs to be
consistent with 2.27.
(3) Security Container Check Sheet. Each piece of security equipment
used for the storage of classified information will have attached
conspicuously to the outside a Standard Form 702 (Security Container
Check Sheet) on which an authorized person will record the date and
actual time each business day that they initially unlock and finally
lock the security equipment, followed by their initials. Users of this
form are to avoid citations which reflect the opening, locking and
checking of the security equipment at standardized (non-actual) times,
e.g., opened at 8:00 a.m. and closed/checked at 4:00 p.m. Bureaus and
the Departmental Offices may continue to use Optional Form 62 (Safe or
Cabinet Security Record) in lieu of the SF 702 until September 30, 1990,
or such time as their supplies of Optional Form 62 are exhausted. The
reprinting or photostatic reproduction and use of Optional Form 62 is
not authorized. On each normal workday, regardless of whether the
security equipment was opened on that particular day, the security
equipment shall be checked by authorized personnel to assure that no
surreptitious attempt has been made to penetrate the security equipment.
Such examinations normally consist of a quick or casual visual check to
note either any obvious marks or gashes, or defects or malfunction of
the security equipment which are different from their prior observations
or experience in operating the equipment concerned. Any such
discrepancies in the appearance of or functioning of the security
equipment, based upon this visual check, should be reported to
appropriate security officials. The ''Checked By'' column of the SF 702
or Optional Form 62 shall be annotated to reflect the date and time of
this action followed by that person's initials. Security equipment used
for the storage of classified information that has been opened on a
particular day shall not be left unattended at the end of that day until
it has been locked by an authorized person and checked by a second
person. In the event a second person is not available within the
office, the individual who locked the equipment shall also annotate the
''Checked By'' column of the SF 702 or Optional Form 62. Reversible
''OPEN-CLOSED'' or ''LOCKED-UNLOCKED'' signs, available through normal
supply channels, shall also be used on such security equipment. The
respective side of the sign shall be displayed to indicate when the
container is open or closed. Except for the SF 702 or Optional Form 62,
the top surface area of security equipment is not to be used for storage
and must be kept free of extraneous material. SF 702 and/or Optional
Form 62 shall be utilized on all security equipment used for storing
information bearing the control legend ''Limited Official Use''. The
designated security officer in each Treasury bureau and the Department
Offices may, as warranted, prescribe supplementary use of the SF 702 or
Optional Form 62 to apply to other authorized legends approved by the
Department for officially limited information.
(4) Safe Combination Records. Combinations to security equipment
containing classified information shall be recorded on Standard Form 700
(Security Container Information), national stock number
7540-01-214-5372. Bureaus and the Departmental Offices may continue to
use Treasury Form 4032 (Security Container Information) in lieu of the
SF 700 until September 30, 1990, or such time as their supplies of
Treasury Form 4032 are exhausted. The reprinting of Treasury Form 4032
is not authorized. Each part of the SF 700 shall be completed in its
entirety. The names, addresses and home telephone numbers of personnel
responsible for the combination, and the classified information stored
therein, must be indicated on part 1 of the SF 700. The completed part
1 shall be posted in the front interior of the top, control or locking
drawer of the security equipment concerned. Part 2 shall be inserted in
the envelop (part 2A) provided, and forwarded via appropriate secure
means to the designated bureau or Departmental Offices central
repository for security combinations. Part 2 shall have the highest
level of classified information, stored in the security equipment
concerned, annotated in both the top and bottom border areas of the
completed SF 700. Part 2A shall have the highest level of classified
information, stored in the security equipment concerned, annotated in
the blank space immediately above the word, ''WARNING'' which appears on
the SF 700. The completion of the SF 700 or Treasury Form 4032 does not
constitute a classification action but serves as an administrative
requirement to ensure the protection of classified information stored in
such security equipment. SF 700 shall be utilized on all security
equipment used for storing information bearing the control legend
''Limited Official Use''. The designated security officer in each
Treasury bureau and the Departmental Offices may prescribe supplementary
use of the SF 700 to apply to other authorized legends approved by the
Department for officially limited information, as warranted.
(c) Keys. The designated security officer in each Treasury bureau
and the Departmental Offices shall establish administrative procedures
for the control and accountability of keys and locks whenever
key-operated, high-security padlocks are utilized. The level of
protection provided such keys shall be equivalent to that afforded the
information being protected by the padlock.
(d) Classified Document Cover Sheets. Classified document cover
sheets alert personnel that documents or folders are classified and
require protection from unauthorized scrutiny. Individuals who prepare
or package classified documents are responsible for affixing the
appropriate document cover sheet. Orange Standard Form 703 (Top Secret
Cover Sheet), red SF 704 (Secret Cover Sheet) and blue SF 706
(Confidential Cover Sheet) are the only authorized cover sheets for
collateral classified information. The national stock numbers of these
cover sheets are as follows: SF 703, 7540-01-213-7901; SF 704,
7540-01-213-7902; and SF 705, 7540-01-213-7903. In order to maintain
the integrity of the color coding process the photocopying and use of
non-color coded classified document cover sheets is prohibited. Bureaus
and offices shall maintain a supply of classified document cover sheets
appropriate for their needs. Classified document cover sheets are
designed to be reused and will be removed before classified information
is filed to conserve filing space and prior to the destruction of
classified information. Document cover sheets are to be used to shield
classified documents while in use and particularly when the transmission
is made internally within a headquarters by courier, messenger or by
personal contact. File folders containing classified information should
be otherwise marked, e.g., at the top and bottom of the front and back
covers, to indicate the overall classification of the contents rather
than permanently affixing the respective classified document cover
sheet. Treasury Directive 71-02 provides for the use of a green cover
sheet, TD F 71-01.6 (Limited Official Use Document Cover Sheet) for
information bearing the control legend ''Limited Official Use''.
Bureaus or offices electing to create and use other cover sheets for
officially limited information must obtain prior written approval from
the Departmental Director of Security.
(e) Activity Security Checklist. Standard Form 701 (Activity
Security Checklist) provides a systematic means to make a thorough
end-of-day security inspection for a particular work area and to allow
for employee accountability in the event that irregularities are
discovered. Bureaus and the Departmental Offices may include additional
information on the SF 701 to suit their unique needs. The SF 701,
available through normal supply channels has a national stock number of
7540-01-213-7900. It shall be the only form used in situations that
call for use of an activity security checklist. Completion, storage and
disposition of SF 701 will be determined by each bureau and the
Departmental Offices.
31 CFR 2.28 Transmittal (4.1(b)).
(a) Preparation. Classified information to be transmitted outside of
a Treasury facility shall be enclosed in opaque inner and outer covers.
The inner cover shall be a sealed wrapper or envelope plainly marked
with the assigned security classification and addresses of both sender
and addressee. The outer cover shall be sealed and addressed with no
identification of the classification of its contents. Whenever
classified material is to be transmitted and the size of the material is
not suitable for use of envelopes or similar wrappings, it shall be
enclosed in two opaque sealed containers, such as boxes or heavy
wrappings. Material used for packaging such bulk classified information
shall be of sufficient strength and durability as to provide security
protection while in transit, to prevent items from breaking out of the
container, and to facilitate detection of any tampering therewith.
(b) Receipting. A receipt, Treasury Department Form 71-01.5
(Classified Document Record of Transmittal), shall be enclosed in the
inner cover, except that Confidential and Limited Official Use
information shall require a receipt only if the sender deems it
necessary. The receipt shall identify the sender, addressee and
describe the document, but shall contain no classified information. It
shall be immediately signed by the recipient and returned to the sender.
Within a Treasury facility, such information may be transmitted between
offices by direct contact of the officials concerned in a single sealed
opaque envelope with no security classification category being shown on
the outside of the envelope. Classified information shall never be
delivered to unoccupied offices or rooms. Senders of classified
information should maintain appropriate records of outstanding receipts
for which return of the original signed copy is still pending. TD F's
71-01.5 shall be maintained for a three year period after which they may
be destroyed. No record of the actual destruction of the TD F 71-01.5
is required.
(c) Transmittal of Top Secret. The transmittal of Top Secret
information outside of a Treasury facility shall be by specifically
designated personnel, by State Department diplomatic pouch, by a
messenger-courier system authorized for that purpose, e.g., Defense
Courier Service, or over authorized secure communications circuits. Top
Secret information may not be sent via registered mail.
(d) Transmittal of Secret. The transmittal of Secret information
shall be effected in the following manner:
(1) The 50 States, District of Columbia and Puerto Rico. Secret
information may be transmitted within and between the 50 States, the
District of Columbia, and the Commonwealth of Puerto Rico by one of the
means authorized for Top Secret information, by the United States Postal
Service registered mail or express mail service; or by protective
services provided by United States air or surface commercial carriers
under such conditions as may be prescribed by the Departmental Director
of Security. United States Postal Service express mail service shall be
used only when it is the most effective means to accomplish a mission
within security, time, cost and accountability constraints. To ensure
direct delivery to the addressee, the ''Waiver of Signature and
Indemnity'' block on the United States Postal Service Express Mail Label
11-B may not be executed under any circumstances. All Secret express
mail shipments are to be processed through mail distribution centers or
delivered directly to a United States Postal Service facility or
representative. The use of external (street side) express mail
collection boxes is prohibited. Only the express mail services of the
United States Postal Service are authorized.
(2) Other Areas. Secret information may be transmitted from, to, or
within areas other than those specified in 2.28(d)(1) by one of the
means established for Top Secret information, or by United States
registered mail through Military Postal Service facilities provided that
the information does not at any time pass out of United States citizen
control and does not pass through a foreign postal system. Transmittal
outside such areas may also be accomplished under escort of
appropriately cleared personnel aboard United States Government owned
and United States Government contract vehicles or aircraft, ships of the
United States Navy, civil service manned United States Naval ships, and
ships of United States Registry. Operators of vehicles, captains or
masters of vessels, and pilots of aircraft who are United States
citizens, and who are appropriately cleared, may be designated as
escorts. Secret information may not be sent via certified mail.
(e) Transmittal of Confidential and Limited Official Use Information.
Confidential and Limited Official Use information shall be transmitted
within and between the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and United States territories or
possessions by one of the means established for higher classifications,
or by the United States Postal Service registered mail. Outside these
areas, confidential and Limited Official Use information shall be
transmitted only as is authorized for higher classifications.
Confidential and Limited Official Use information may not be sent via
certified mail.
(f) Hand Carrying of Classified Information in Travel Status -- (1)
General Provisions. Personnel in travel status shall physically
transport classified information across international boundaries only
when absolutely essential. Whenever possible, and when time permits,
the most desirable way to transmit classified information to the
location being visited is by other authorized means identified in 2.28
(c), (d) and (e). The physical transportation of classified information
on non-United States flag aircraft should be avoided if possible.
Treaury Directive 71-03, ''Screening of Airline Passengers Carrying
Classified Information or Material'' provides specifics on the
requirements for transporting classified information.
(2) Specific Safeguards. If it is determined that the transportation
of classified information by an individual in travel status is in the
best interest of the United States Government, the following specific
safeguards shall be fulfilled:
(i) Classified information shall be in the physical possession of the
individual and shall have adequate safeguards at all times if proper
storage at a United States Government facility is not available. Under
no circumstances shall classified information be stored in a hotel safe
or room, locked in automobiles, private residences, train compartments,
or any vehicular detachable storage compartments.
(ii) An inventory of all Top Secret classified information, including
teletype messages, shall be made prior to departure and a copy of same
shall be retained by the traveller's office until the traveller's return
at which time all Top Secret classified information shall be accounted
for. These same procedures are recommended for information classified
Secret, Confidential or Limited Official Use.
(iii) Classified information shall never be displayed or used in any
manner in public conveyances or rooms. First class or business travel
is not authorized when the justification for commercially available
transportation is based on the need for reviewing classified materials
while enroute. Travelers are responsible for reviewing and
familiarizing themselves with required classified materials, under
appropriately secure circumstances, in advance of their travel and not
during such travel.
(iv) In order to avoid unnecessary delays in the screening process
prior to boarding commercial air carriers, the traveler shall have in
his or her possession written authorization, on Treasury or bureau
letterhead, to transport classified information and either an
identification card or credential bearing both a photograph and
descriptive data. Courier authorizations shall be signed by an
appropriate security representative authorized to direct official
travel. This courier authorization, along with official travel orders,
shall, in most instances, permit the individual to exempt the classified
information from inspection. If difficulty is encountered, the traveler
should tactfully refuse to exhibit or disclose the classified
information to inspection and should insist on the assistance of the
local United States diplomatic representative at the port of entry or
departure.
(v) Upon completion of the visit, the traveler shall have the
information returned to his or her office by approved means. All Top
Secret and Secret classified information, including teletype messages
transported for the purpose of the visit shall be accounted for. It is
highly recommended that Confidential and Limited Official Use
information also be accounted for. If any Top Secret or Secret
classified items are left with the office being visited for its
retention and use, the individual shall obtain a receipt.
(55 FR 1644, Jan. 17, 1990, as amended at 55 FR 50321, Dec. 6, 1990)
31 CFR 2.29 Telecommunications and computer transmissions.
Classified information shall not be communicated by
telecommunications or computer transmissions except as may be authorized
with respect to the transmission of classified information over
authorized secure communications circuits or systems.
31 CFR 2.30 Special access programs (1.2(a) and 4.2(a)).
Only the Secretary of the Treasury may create or continue a special
access program if:
(a) Normal management and safeguarding procedures do not limit access
sufficiently; and
(b) The number of persons with access is limited to the minimum
necessary to meet the objective of providing extra protection for the
information.
31 CFR 2.31 Reproduction controls (4.1(b)).
(a) Top Secret documents, except for the controlled initial
distribution of information processed or received electronically, shall
not be reproduced without the consent of the originator.
(b) Unless restricted by the originating agency, Secret, Confidential
and Limited Official Use documents may be reproduced to the extent
required by operational needs.
(c) Reproductions of classified documents shall be subject to the
same accountability and controls as the original documents.
(d) Paragraphs (a) and (b) of this section shall not restrict the
reproduction of documents to facilitate review for possible
declassification.
31 CFR 2.32 Loss or possible compromise (4.1(b)).
(a) Report of Loss or Possible Compromise. Any Treasury employee who
has knowledge of the loss or possible compromise or classified
information shall immediately report the circumstances to their
designated office or bureau security officer who shall take appropriate
action to assess the degree of damage. In turn, the Departmental
Director of Security shall be immediately notified by the affected
office or bureau security officer of such reported loss or possible
compromise. The Departmental Director of Security shall also notify the
department or agency which originated the information and any other
interested department or agency so that a damage assessment may be
conducted and appropriate measures taken to negate or minimize any
adverse effect of the loss or possible compromise. Compromises may
occur through espionage, unauthorized disclosures to the press or other
members of the public, publication of books and treatises, the known
loss of classified information or equipment to foreign powers, or
through various other circumstances.
(b) Inquiry. The Departmental Director of Security shall notify the
Assistant Secretary (Management) who shall then direct an immediate
inquiry to be conducted for the purpose of taking corrective measures
and assessing damages. Based on the results of this inquiry, it may be
deemed appropriate to notify the Inspector General who shall determine
whether the Office of the Inspector General or a Treasury bureau will
conduct any additional investigation. Upon completion of the
investigation by the Inspector General, the Inspector General shall
recommend to the Assistant Secretary (Management) and concurrently to
the Departmental Director of Security, the appropriate administrative,
disciplinary, or legal action to be taken based upon jurisdictional
authority of the Treasury components involved.
(c) Content of Damage Assessments. At a minimum, damage assessments
shall be in writing and contain the following:
(1) Identification of the source, date and circumstances of the
compromise.
(2) Classification and description of the specific information which
has been lost.
(3) An analysis and statement of the known or probable damage to the
national security that has resulted or may result.
(4) An assessment of the possible advantage to foreign powers
resulting from the compromise.
(5) An assessment of whether,
(i) The classification of the information involved should be
continued without change;
(ii) The specific information, or parts thereof, shall be modified to
minimize or nullify the effects of the reported compromise and the
classification retained;
(iii) Downgrading, declassification, or upgrading is warranted, and
if so, confirmation of prompt notification to holders of any change, and
(6) An assessment of whether countermeasures are appropriate and
feasible to negate or minimize the effect of the compromise.
(d) System for Control of Damage Assessments. Each Treasury bureau
and the Departmental Offices shall establish a system of control and
internal procedures to ensure that damage assessments are performed in
all cases described in 2.32(a) and that records are maintained in a
manner that facilitates their retrieval and use within the Department.
(e) Cases Involving More Than One Agency. (1) Whenever a compromise
involves the classified information or interests of more than one
agency, the Departmental Director of Security shall advise the other
affected agencies of the circumstances and findings that affect their
information or interests. Whenever a damage assessment, incorporating
the product of two or more agencies is needed, the affected agencies
shall agree upon the assignment of responsibility for the assessment and
Treasury components will provide all data pertinent to the compromise to
the agency responsible for conducting the assessment.
(2) Whenever a compromise of United States classified information is
the result of actions taken by foreign nationals, by foreign government
officials, or by United States nationals in the employ of international
organizations, the agency performing the damage assessment shall
endeavor to ensure through appropriate intergovernmental liaison
channels, that information pertinent to the assessment is obtained.
Whenever more than one agency is responsible for the assessment, those
agencies shall coordinate the request prior to transmittal through
appropriate channels.
(3) Whenever an action is contemplated against any person believed
responsible for the loss or compromise of classified information, damage
assessments shall be coordinated with appropriate legal counsel.
Whenever a violation of criminal law appears to have occured and a
criminal prosecution is contemplated, coordination shall be made with
the Department of Justice.
(4) The designated representative of the Director of Central
Intelligence, or other appropriate officials with responsibility for the
information involved, will be consulted whenever a compromise of
sensitive compartmented information has occurred.
31 CFR 2.33 Responsibilities of holders (4.1(b)).
Any person having access to and possession of classified information
is responsible for protecting it from persons not authorized access,
i.e., persons who do not possess an appropriate security clearance, and
who do not possess the required need-to-know. This includes keeping
classified documents under constant observation and turned face-down or
covered when not in use and securing such information in approved
security equipment or facilities whenever it is not under the direct
supervision of authorized persons. In all instances, such protective
means must meet accountability requirements prescribed by the
Department.
31 CFR 2.34 Inspections (4.1(b)).
Individuals charged with the custody of classified information shall
conduct the necessary inspections within their areas to ensure adherence
to procedural safeguards prescribed to protect classified information.
Security officers shall ensure that periodic inspections are made to
determine whether procedural safeguards prescribed by this regulation
and any bureau implementing regulation are in effect at all times. At a
minimum such checks shall ensure that all classified information is
stored in approved security containers, including removable storage
media, e.g., floppy disks used by word processors that contain
classified information; burn bags, if utilized, are either stored in
approved security containers or destroyed; and classified shorthand
notes, carbon paper, carbon and plastic typewriter ribbons, rough drafts
and similar papers have been properly stored or destroyed.
31 CFR 2.35 Security violations.
Any individual, at any level of employment, determined to have been
responsible for the unauthorized release or disclosure or potential
release or disclosure of classified national security information,
whether it be knowingly, willfully or through negligence, shall be
notified on TD F 71-21.1 (Record of Security Violation) that his or her
action is in violation of this regulation, the Order, the Directive, and
Executive Order 10450, as amended. Treasury Directive 71-04, entitled,
''Administration of Security Violations'' sets forth provisions
concerning security violations which shall apply to each Treasury
employee and persons under contract or subcontract to the Department
authorized access to Treasury classified national security information.
(a) Repeated abuse of the classification process, either by
unnecessary or over-classification, or repeated failure, neglect or
disregard of established requirements for safeguarding classified
information by any employee shall be grounds for appropriate adverse or
disciplinary action. Such actions may include, but are not necessarily
limited to, a letter of warning, a letter of reprimand, suspension
without pay, or dismissal, as appropriate in the particular case, under
applicable personnel rules, regulations and procedures. Where a
violation of criminal statutes may be involved, any such case shall be
promptly referred to the Department of Justice.
(b) After an affirmative adjudication of a security violation, and as
the occasion demands, reports of accountable security violations shall
be placed in the employee's personnel security file, and as appropriate,
in the employee's official personnel folder. The security official of
the office or bureau concerned shall recommend to the respective
management official or bureau head that disciplinary action be taken
when such action is indicated.
31 CFR 2.36 Disposition and destruction (4.1(b)).
Classified information no longer needed in current working files or
for reference or record purposes shall be processed for appropriate
disposition in accordance with the provisions of Title 44, United States
Code, Chapters 21 and 33, which govern disposition of Federal records.
Classified information approved for destruction shall be destroyed by
either burning, melting, chemical decomposition, pulping, mulching,
pulverizing, cross-cut shredding or other mutilation in the presence of
appropriately cleared and authorized persons. The method of destruction
must preclude recognition or reconstruction of the classified
information. The residue from cross-cut shredding of Top Secret,
Secret, and Confidential classified, non-Communications Security
(COMSEC), information contained in paper media may not exceed 3/32'' by
1/2'' with a 1/64'' tolerance.
(a) Diskettes or Floppy Disks. Diskettes or floppy disks containing
information or data classified up to and including Top Secret may be
destroyed by the use of an approved degausser, burning, pulverizing, and
chemical decomposition, or by first reformatting or reinitializing the
diskette then physically removing the magnetic disk from its protective
sleeve and using an approved cross-cut shredder to destroy the magnetic
media. Care must be exercised to ensure that the destruction of
magnetic disks does not damage the cross-cut shredder. The residue from
such destruction, however, may not exceed 1/32'' by 1/2'' with a 1/64''
tolerance. The destruction of classified COMSEC information on
diskettes or floppy disks may only be effected by burning followed by
crushing of the ash residue.
(b) Hard Disks. Hard disks, including removable hard disks, disk
packs, drums or single disk platters that contain classified information
must first be degaussed prior to physical destruction. The media must
be destroyed by incineration, chemical decomposition or the entire
magnetic disk pack, drum, or platter recording surface must be
obliterated by use of an emery wheel or disk sander.
(c) Approval of Use of Mulching and Cross-cut Shredding Equipment.
Prior to obtaining mulching or cross-cut shredding equipment, the
Departmental Director of Security shall approve the use of such
equipment.
(d) Use of Burnbags. Any classified information to be destroyed by
burning shall be torn and placed in opaque containers, commonly
designated as burnbags, which shall be clearly and distinctly labeled
''BURN'' or ''CLASSIFIED WASTE''. Burnbags awaiting destruction are to
be protected by security safeguards commensurate with the classification
or control designation of the information involved.
(e) Records of Destruction. Appropriate accountability records shall
be maintained on TD F 71-01.17 (Classified Document Certificate of
Destruction) to reflect the destruction of all Top Secret and Secret
information. As deemed necessary by the originator, or as required by
special regulations, the TD F 71-01.17 shall be executed for the
destruction of information classified Confidential or marked Limited
Official Use. TD F's 71-01.17 shall be maintained for a three-year
period after which the form may be destroyed. No record of the actual
destruction of the TD F 71-01.17 is required.
(f) Destruction of non-record Classified Information. Non-record
classified information such as extra copies and duplicates, including
shorthand notes, preliminary drafts, used carbon paper and other
material of similar temporary nature, shall also be destroyed by
burning, mulching, or cross-cut shredding as soon as it has served its
purpose, but no records of such destruction need be maintained.
(55 FR 1644, Jan. 17, 1990; 55 FR 5118, Feb. 13, 1990)
31 CFR 2.37 National Security Decision Directive 197.
National Security Decision Directive 197, Reporting Hostile Contacts
and Security Awareness, provides that United States Government employees
are responsible for reporting to their designated security officer:
(a) Any suspected or apparent attempt by persons, regardless of
nationality, to obtain unauthorized access to classified national
security information, sensitive or proprietary information or technology
and/or;
(b) Instances in which they feel they are being targeted for possible
exploitation. Contacts with representatives of designated countries of
concern identified in 2.43(f) which involve requests for information
which are not ordinarily provided in the course of an employee's job,
regular or daily activity, and/or which might possibly lead to further
requests for access to sensitive, proprietary or classified information
or technology, are to be reported to designated security officers.
Reports of such contacts are to be forwarded by the designated security
officer to the Departmental Director of Security for appropriate action
and coordination.
31 CFR 2.37 Subpart E -- Implementation and Review
31 CFR 2.38 Departmental management.
(a) The Assistant Secretary (Management) shall:
(1) Enforce the Order, the Directive and this regulation, and
establish, coordinate and maintain active training, orientation and
inspection programs for employees concerned with classified information.
(2) Review suggestions and complaints regarding the administration of
this regulation.
(b) Pursuant to Treasury Directive 71-08, ''Delegation of Authority
Concerning Physical Security Programs'', the Departmental Director of
Security shall:
(1) Review all bureau implementing regulations prior to publication
and shall require any regulation to be changed, if it is not consistent
with the Order, the Directive or this regulation.
(2) Have the authority to conduct on-site reviews of bureau physical
security programs and information security programs as they pertain to
each Treasury bureau and to require such reports, information and
assistance as may be necessary, and
(3) Serve as the principal advisor to the Assistant Secretary
(Management) with respect to Treasury physical and information security
programs.
31 CFR 2.39 Bureau administration.
Each Treasury bureau and the Departmental Offices shall designate, in
writing to the Departmental Director of Security, an officer or official
to direct, coordinate and administer its physical security and
information security programs which shall include active oversight to
ensure effective implementation of the Order, the Directive, this
regulation. Bureaus and the Departmental Offices shall revise their
existing implementing regulation on national security information to
ensure conformance with this regulation. Time frames for bureau and
Departmental Offices implementation shall be established by the
Departmental Director of Security.
31 CFR 2.40 Emergency planning (4.1(b)).
Each Treasury bureau and the Departmental Offices shall develop plans
for the protection, removal, or destruction of classified information in
case of fire, natural disaster, civil disturbance, or possible enemy
action. These plans shall include the disposition of classified
information located in foreign countries.
31 CFR 2.41 Emergency authority (4.1(b)).
The Secretary of the Treasury may prescribe by regulation special
provisions for the dissemination, transmittal, destruction, and
safeguarding of national security information during combat or other
emergency situations which pose an imminent threat to national security
information.
31 CFR 2.42 Security education (5.3(a)).
Each Treasury bureau that creates, processes or handles national
secutity information, including the Departmental Offices, is required to
establish a security education program. The program shall be sufficient
to familiarize all necessary personnel with the provisions of the Order,
the Directive, this regulation and any other implementing directives and
regulations to impress upon them their individual security
responsibilities. The program shall also provide for initial,
refresher, and termination briefings.
(a) Briefing of Employees. All new employees concerned with
classified information shall be afforded a security briefing regarding
the Order, the Directive and this regulation and sign a security
agreement as required in 2.22(c). Employees concerned with sensitive
compartmented information shall be required to read and also sign a
security agreement. Copies of applicable laws and pertinent security
regulations setting forth the procedures for the protection and
disclosure of classified information shall be available for all new
employees afforded a security briefing. All employees given a security
briefing shall be required to sign a TD F 71-01.16 (Physical Security
Orientation Acknowledgment) which shall be maintained on file as
determined by respective office or bureau security officials.
(b) (Reserved)
31 CFR 2.42 Subpart F -- General Provisions
31 CFR 2.43 Definitions (6.1).
(a) Authorized Person. Those individuals who have a ''need-to-know''
the classified information involved and have been cleared for the
receipt of such information. Responsibility for determining whether
individuals' duties require that they possess, or have access to, any
classified information and whether they are authorized to receive it
rests on the individual who has possession, knowledge, or control of the
information involved, and not on the prospective recipients.
(b) Compromise. The loss of security enabling unauthorized access to
classified information. Affected information or material is not
automatically declassified.
(c) Confidential Source. Any individual or organization that has
provided, or that may reasonably be expected to provide, information to
the United States on matters pertaining to the national security with
the expectation, expressed or implied, that the information or
relationship, or both, be held in confidence.
(d) Declassification. The determination that particular classified
information no longer requires protection against unauthorized
disclosure in the interest of national security. Such determination
shall be by specific action or occur automatically after the lapse of a
requisite period of time or the occurrence of a specified event. If
such determination is by specific action, the information or material
shall be so marked with the new designation.
(e) Derivative Classification. A determination that information is,
in substance, the same as informaiton that is currently classified and a
designation of the level of classification.
(f) Designated Countries of Concern. For purposes of National
Security Decision Directive 197 reporting: Afghanistan, Albania,
Angola, Bulgaria, Cambodia (Kampuchea), the People's Republic of China
(Communist China), Cuba, Czechoslovakia, Ethiopia, East Germany (German
Democratic Republic including the Soviet sector of Berlin), Hungary,
Iran, Iraq, Laos, Libya, Mongolian People's Republic (Outer Mongolia),
Nicaragua, North Korea, Palestine Liberation Organization, Poland,
Romania, South Africa, South Yemen, Syria, Taiwan, Union of Soviet
Socialist Republics (Russia), Vietnam and Yugoslavia.
(g) Document. Any recorded information regardless of its physical
form or characteristics, including, without limitation, written or
printed material; data processing cards and tapes; maps, charts;
painting; drawings; engravings; sketches; working notes and papers;
reproductions of such things by any means or process; and sound, voice,
or electronic recordings in any form.
(h) Foreign Government Information. (1) Information provided by a
foreign government or governments, an international organization of
governments, or any elements thereof with the expectation, expressed or
implied, that the information, the source of the information, or both,
are to be held in confidence; or
(2) Information produced by the United States Government pursuant to
or as a result of a joint arrangement with a foreign government or
governments or an international organization of governments, or any
element thereof, requiring that the information, the arrangement, or
both, are to be held in confidence.
(i) Information. Any data or material, regardless of its physical
form or characteristics, that is owned by, produced by or for, or is
under the control of the United States Government.
(j) Information Security. The administrative policies and procedures
for identifying, controlling, and safeguarding from unauthorized
disclosure, information the protection of which is authorized by
Executive Order or statute.
(k) Intelligence Activity. An activity that an agency within the
Intelligence Community is authorized to conduct pursuant to Executive
Order 12333.
(l) Intelligence Sources and Methods. A person, organization, or
technical means or method which provides foreign intelligence or foreign
counterintelligence to the United States and which, if its identity or
capability is disclosed, is vulnerable to counteraction that could
nullify or significantly reduce its effectiveness in providing foreign
intelligence or foreign counterintelligence to the United States. An
intelligence source also means a person or organization which provides
foreign intelligence or foreign counterintelligence to the United States
only on the condition that its identity remains undisclosed.
Intelligence methods are that which, if disclosed, reasonably could lead
to the disclosure of an intelligence source or operation.
(m) Limited Official Use. The legend authorized for ''Officially
Limited Information'' which provides that it be handled, safeguarded and
stored in a manner equivalent to national security information
classified Confidential.
(n) Multiple Classified Sources. The term used to indicate that a
document is derivatively classified when it contains classified
information derived from other than one source.
(o) National Security. The national defense or foreign relations of
the United States.
(p) National Security Information. Information that has been
determined pursuant to the Order or any predecessor Executive Order to
require protection against unauthorized disclosure and that is so
designated.
(q) Need-to-Know. A determination made by the possessor of
classified information that a prospective recipient, in the interest of
national security, has a requirement for access to, knowledge of, or
possession of the classified information in order to perform tasks or
services essential to the fulfillment of particular work, including
performance on contracts for which such access is required.
(r) Officially Limited Information. Information which does not meet
the criterion that unauthorized disclosure would at least cause damage
to the national security under the Order or a predecessor Executive
Order, but which concerns important, delicate, sensitive or proprietary
information which is utilized in the development of Treasury policy.
This includes the enforcement of criminal and civil laws relating to
Treasury operations, the making of decisions on personnel matters and
the consideration of financial information provided in confidence.
(s) Original Classification. An initial determination that
information requires, in the interest of national security, protection
against unauthorized disclosure, together with a classification
designation signifying the level of protection required.
(t) Original Classification Authority. The authority vested in an
Executive Branch official to make an initial determination that
information requires protection against unauthorized disclosure in the
interest of national security.
(u) Originating Agency. The agency responsible for the initial
determination that particular information is classified.
(v) Portion. A segment of a document for purposes of expressing a
unified theme; ordinarily a paragraph.
(w) Sensitive Compartmented Information. Information and material
concerning or derived from intelligence sources, methods, or analytical
processes, that requires special controls for restricting handling
within compartmented intelligence systems established by the Director of
Central Intelligence and for which compartmentation is established.
(x) Special Access Program. Any program imposing ''need-to-know'' or
access controls beyond those normally provided for access to
Confidential, Secret, or Top Secret information. Such a program may
include, but is not limited to, special clearance, adjudication, or
investigative requirements, special designations of officials authorized
to determine ''need-to-know'' or special lists of persons determined to
have a ''need-to-know''.
(y) Special Activity. An activity conducted in support of national
foreign policy objectives abroad which is planned and executed so that
the role of the United States Government is not apparent or acknowledged
publicly, and functions in support of such activity, but which is not
intended to influence United States political processes, public opinion,
policies or media and does not include diplomatic activities or the
collection and production of intelligence or related support functions.
(z) Unauthorized Disclosure. A communication or physical transfer of
classified information to an unauthorized recipient. It includes the
unauthorized disclosure of classified information in a newspaper,
journal, or other publication where such information is traceable due to
a direct quotation or other uniquely identifiable fact.
31 CFR 2.43 PART 3 -- CLAIMS REGULATIONS AND INDEMNIFICATION OF DEPARTMENT OF TREASURY EMPLOYEES
31 CFR 2.43 Subpart A -- Claims Under the Federal Tort Claims Act
Sec.
3.1 Scope of regulations.
3.2 Filing of claims.
3.3 Legal review.
3.4 Approval of claims not in excess of $25,000.
3.5 Limitations on authority to approve claims.
3.6 Final denial of a claim.
3.7 Action on approved claims.
3.8 Statute of limitations.
31 CFR 2.43 Subpart B -- Claims Under the Small Claims Act
3.20 General.
3.21 Action by claimant.
3.22 Legal review.
3.23 Approval of claims.
3.24 Statute of limitations.
31 CFR 2.43 Subpart C -- Indemnification of Department of Treasury
Employees
3.30 Policy.
Authority: 28 U.S.C. 2672; 28 CFR part 14; 5 U.S.C. 301.
Source: 35 FR 6429, Apr. 22, 1970, unless otherwise noted.
31 CFR 2.43 Subpart A -- Claims Under the Federal Tort Claims Act
31 CFR 3.1 Scope of regulations.
(a) The regulations in this part shall apply to claims asserted under
the Federal Tort Claims Act, as amended, 28 U.S.C. 2672, accruing on or
after January 18, 1967, for money damages against the United States for
injury to or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of an employee of the Department
while acting within the scope of his office or employment, under
circumstances where the United States if a private person, would be
liable to the claimant for such damage, loss, injury, or death, in
accordance with the law of the place where the act or omission occurred.
The regulations in this subpart do not apply to any tort claims
excluded from the Federal Tort Claims Act, as amended, under 28 U.S.C.
2680.
(b) Unless specifically modified by the regulations in this part,
procedures and requirements for filing and handling claims under the
Federal Tort Claims Act shall be in accordance with the regulations
issued by the Department of Justice, at 28 CFR part 14, as amended.
31 CFR 3.2 Filing of claims.
(a) When presented. A claim shall be deemed to have been presented
upon the receipt from a claimant, his duly authorized agent or legal
representative of an executed Standard Form 95 or other written
notification of an incident, accompanied by a claim for money damages in
a sum certain for injury to or loss of property, or personal injury, or
death alleged to have occurred by reason of the incident.
(b) Place of filing claim. Claims shall be submitted directly or
through the local field headquarters to the head of the bureau or office
of the Department out of whose activities the incident occurred, if
known; or if not known, to the General Counsel, Treasury Department,
Washington, D.C. 20220.
(c) Contents of claim. The evidence and information to be submitted
with the claim shall conform to the requirements of 28 CFR 14.4.
31 CFR 3.3 Legal review.
Any claim that exceeds $500, involves personal injuries or automobile
damage, or arises out of an incident that is likely to result in
multiple claimants, shall be forwarded to the legal division of the
bureau or office out of whose activities the claim arose. The claim,
together with the reports of the employee and the investigation, shall
be reviewed in the legal division which shall thereupon make a
recommendation that the claim be approved, disapproved, or compromised,
and shall advise on the need for referral of the claim to the Department
of Justice. This recommendation and advice, together with the file,
shall be forwarded to the head of the bureau or office or his designee.
(35 FR 6429, Apr. 22, 1970, as amended at 48 FR 16253, Apr. 15, 1983)
31 CFR 3.4 Approval of claims not in excess of $25,000.
(a) Claims not exceeding $25,000 and not otherwise requiring
consultation with the Department of Justice pursuant to 28 CFR 14.6(b)
shall be approved, disapproved, or compromised by the head of the bureau
or office or his designee, taking into consideration the recommendation
of the legal division.
31 CFR 3.5 Limitations on authority to approve claims.
(a) All proposed awards, compromises or settlements in excess of
$25,000 require the prior written approval of the Attorney General.
(b) All claims which fall within the provisions of 28 CFR 14.6(b)
require referral to and consultation with the Department of Justice.
(c) Any claim which falls within paragraph (a) or (b) of this section
shall be reviewed by the General Counsel. If the claim, award,
compromise, or settlement receives the approval of the General Counsel
and the head of the bureau or office or his designee, a letter shall be
prepared for the signature of the General Counsel transmitting to the
Assistant Attorney General, Civil Division, Department of Justice, the
case for approval or consultation as required by 28 CFR 14.6. Such
letter shall conform with the requirements set forth in 28 CFR 14.7.
31 CFR 3.6 Final denial of a claim.
The final denial of an administrative claim shall conform with the
requirements of 28 CFR 14.9 and shall be signed by the head of the
bureau or office, or his designee.
31 CFR 3.7 Action on approved claims.
(a) Any award, compromise, or settlement in an amount of $2,500 or
less shall be processed for payment from the appropriations of the
bureau or office out of whose activity the claim arose.
(b) Payment of an award, compromise, or settlement in excess of
$2,500 and not more than $100,000 shall be obtained by the bureau or
office by forwarding Standard Form 1145 to the Claims Division, General
Accounting Office.
(c) Payment of an award, compromise, or settlement in excess of
$100,000 shall be obtained by the bureau by forwarding Standard Form
1145 to the Bureau of Government Financial Operations, Department of the
Treasury, which will be responsible for transmitting the award,
compromise, or settlement to the Bureau of the Budget for inclusion in a
deficiency appropriation bill.
(d) When an award is in excess of $25,000, Standard Form 1145 must be
accompanied by evidence that the award, compromise, or settlement has
been approved by the Attorney General or his designee.
(e) When the use of Standard Form 1145 is required, it shall be
executed by the claimant. When a claimant is represented by an
attorney, the voucher for payment shall designate both the claimant and
his attorney as payees; the check shall be delivered to the attorney,
whose address shall appear on the voucher.
(f) Acceptance by the claimant, his agent, or legal representative,
of any award, compromise or settlement made pursuant to the provisions
of section 2672 or 2677 of title 28, United States Code, shall be final
and conclusive on the claimant, his agent or legal representative and
any other person on whose behalf or for whose benefit the claim has been
presented, and shall constitute a complete release of any claim against
the United States and against any employee of the Government whose act
or omission gave rise to the claim, by reason of the same subject
matter.
(35 FR 6429, Apr. 22, 1970, as amended at 39 FR 19470, June 3, 1974)
31 CFR 3.8 Statute of limitations.
Claims under this subpart must be presented in writing to the
Department within 2 years after the claim accrued.
31 CFR 3.8 Subpart B -- Claims Under the Small Claims Act
31 CFR 3.20 General.
The Act of December 28, 1922, 42 Stat. 1066, the Small Claims Act,
authorized the head of each department and establishment to consider,
ascertain, adjust, and determine claims of $1,000 or less for damage to,
or loss of, privately owned property caused by the negligence of any
officer or employee of the Government acting within the scope of his
employment. The Federal Tort Claims Act superseded the Small Claims Act
with respect to claims that are allowable under the former act.
Therefore, claims that are not allowable under the Federal Tort Claims
Act, for example, claims arising abroad, may be allowable under the
Small Claims Act.
31 CFR 3.21 Action by claimant.
Procedures and requirements for filing claims under this section
shall be the same as required for filing claims under the Federal Tort
Claims Act as set forth in Subpart A of this part.
31 CFR 3.22 Legal review.
Claims filed under this subpart shall be forwarded to the legal
division of the bureau or office out of whose activities the claim
arose. The claim, together with the reports of the employee and the
investigation, shall be reviewed in the legal division which shall
thereupon make a recommendation that the claim be approved, disapproved
or compromised.
31 CFR 3.23 Approval of claims.
Claims shall be approved, disapproved, or compromised by the head of
the bureau or office or his designee, taking into consideration the
recommendation of the legal division.
31 CFR 3.24 Statute of limitations.
No claim will be considered under this subpart unless filed within 1
year from the date of the accrual of said claim.
31 CFR 3.24 Subpart C -- Indemnification of Department of Treasury
Employees
Source: 56 FR 42938, Aug. 30, 1991, unless otherwise noted.
31 CFR 3.30 Policy.
(a) The Department of the Treasury may indemnify, in whole or in
part, a Department employee (which for purposes of this regulation shall
include a former employee) for any verdict, judgment or other monetary
award rendered against such employee, provided the Secretary or his or
her designee determines that (1) the conduct giving rise to such
verdict, judgment or award was within the scope of his or her employment
and (2) such indemnification is in the interest of the Department of the
Treasury.
(b) The Department of the Treasury may pay for the settlement or
compromise of a claim against a Department employee at any time,
provided the Secretary or his or her designee determines that (1) the
alleged conduct giving rise to the claim was within the scope of the
employee's employment and (2) such settlement or compromise is in the
interest of the Department of the Treasury.
(c) Absent exceptional circumstances, as determined by the Secretary
or his or her designee, the Department will not entertain a request to
indemnify or to pay for settlement of a claim before entry of an adverse
judgment, verdict or other determination.
(d) When a Department employee becomes aware that he or she has been
named as a party in a proceeding in his or her individual capacity as a
result of conduct within the scope of his or her employment, the
employee should immediately notify his or her supervisor that such an
action is pending. The supervisor shall promptly thereafter notify the
chief legal officer of the employee's employing component. The employee
shall immediately apprise the chief legal officer of his or her
employing component of any offer to settle the proceeding.
(e) A Department employee may request indemnification to satisfy a
verdict, judgment or monetary award entered against the employee or to
compromise a claim pending against the employee. The employee shall
submit a written request, with appropriate documentation including a
copy of the verdict, judgment, award or other order or settlement
proposal, in a timely manner to the Secretary or his or her designee for
decision.
(f) Any payment under this section either to indemnify a Department
employee or to settle a claim shall be contingent upon the availability
of appropriated funds for the payment of salaries and expenses of the
employing component.
31 CFR 3.30 PART 4 -- EMPLOYEES' PERSONAL PROPERTY CLAIMS
Sec.
4.1 General.
4.2 Proper claimants.
4.3 Allowable claims.
4.4 Claims not payable.
4.5 Factors to be considered in determining claims.
4.6 Evidence to be submitted by claimant.
4.7 Claims involving carrier and insurer.
4.8 Filing of claims.
4.9 Application to claims not previously adjusted.
4.10 Statute of limitations.
4.11 Attorney's fees.
4.12 Bureau implementation.
Authority: Sec. 3(b), 78 Stat. 767, as amended; 31 U.S.C.
3721(b).
Source: 34 FR 12577, Aug. 1, 1969, unless otherwise noted.
31 CFR 4.1 General.
The Military Personnel and Civilian Employees' Claims Act of 1964, 31
U.S.C. 240-243, authorizes the Secretary of the Treasury to settle and
pay (including replacement in kind) claims of officers or employees of
the Department, amounting to not more than $25,000, for damage to, or
loss of, personal property incident to their service, where possession
of such property is determined to be reasonable, useful, or proper under
the circumstances.
(34 FR 12577, Aug. 1, 1969, as amended at 42 FR 60741, Nov. 29, 1977;
50 FR 29221, July 18, 1985)
31 CFR 4.2 Proper claimants.
(a) The following are proper claimants:
(1) Officers and employees of the Treasury Department.
(2) Former employees of the Treasury Department whose claims arose
out of incidents occurring before their separation.
(3) The authorized agent or legal representative of persons in
paragraphs (a) (1) and (2) of this section.
(4) Survivors of persons in paragraphs (a) (1) and (2) of this
section, in the following order of precedence:
(i) Spouse.
(ii) Children.
(iii) Father or mother, or both.
(iv) Brothers or sisters, or both.
(b) A claim may not be presented by or for the benefit of a subrogee,
assignee, conditional vendor, or other third party.
31 CFR 4.3 Allowable claims.
The following claims are payable when the damage to or loss of the
claimant's property occurs incident to his service under any of the
following circumstances:
(a) Losses in Government quarters. Where personal property is
damaged or lost by fire, flood, hurricane, or other serious occurrence
while located at: (1) Quarters, wherever situated, which were assigned
to claimant or otherwise provided in kind by the Government, including
permanent or temporary housing units which are owned and maintained by
the Government; (2) quarters outside the 50 States and the District of
Columbia occupied by claimant which were not assigned to him or
otherwise provided in kind by the Government, unless the claimant is a
civilian employee who is a local inhabitant; and (3) any warehouse,
office, hospital, baggage dump, or other place (except quarters)
designated by superior authority for the reception of the property.
(b) Transportation losses. Where personal property, including
baggage checked or in personal custody, and including household effects,
is damaged or lost incident to transportation by a carrier, an agent or
agency of the Government, or private conveyance.
(c) House trailers. Claims for loss of or damage to house trailers
and their contents while in storage on Government property pursuant to
shipment under orders are payable under paragraph (a)(3) of this
section. Claims for loss of or damage to house trailers and their
contents arising incident to shipment are payable under paragraph (b) of
this section: Provided, That, when transported by other than the
employee or an agent or agency of the Government, the carrier must have
operating rights approved by the Interstate Commerce Commission in
interstate commerce or under applicable State regulations when shipment
is within a single State. Claims for structural damage to house
trailers, other than that caused by collison, and damage to contents of
house trailers resulting from such structural damage, must contain
conclusive evidence that the damage was not caused by structural
deficiency of the trailer and that the trailer was not overloaded.
Claims for loss of or damage to tires mounted on trailers will not be
entertained except in cases of collision, theft, or vandalism.
(d) Marine disaster. Where personal property is damaged, lost,
destroyed, or abandoned in consequence of shipwreck, fire or other
accident on board, collision, sinking, capsizing, stranding of a vessel,
or perils of the sea.
(e) Aircraft disaster. Where personal property is damaged, lost,
destroyed, or abandoned, in consequence of hazards as a result of an
aircraft disaster or accident.
(f) Enemy action. Where property is lost, abandoned, damaged, or
destroyed by: (1) Enemy action or threat of such action; (2) combat,
or movement in the field which is part of a combat mission; (3)
guerrilla, organized brigandage or other belligerent activities whether
or not the United States is involved; or (4) unjust confiscation by a
foreign power or its nationals.
(g) Property subjected to extraordinary risks. When property is
damaged or lost as a direct result of extraordinary risks to which it
has been subjected by the performance of official noncombat duties by
the claimant, including but not limited to: (1) Performance of duties
in connection with civil disturbances, public disorder, law enforcement
activities, or public disaster; (2) efforts to save Government property
or human life where the situation was such that the claimant could have
saved his own property had he not so acted; and (3) abandonment or
destruction of property by reason of military emergency or by order of
superior authority.
(h) Property used for benefit of the Government. Where property is
damaged or lost while being used, or held for use, for the benefit of
the Government at the direction or request of superior authority or by
reason of military necessity.
(i) Money deposited for safekeeping. Where personal funds which were
accepted by responsible Government personnel with apparent authority to
receive them for safekeeping, deposit, transmittal, or other authorized
disposition, were neither applied as directed by the owner nor returned
to him.
(j) Motor vehicles. Where automobiles and other motor facilities
were damaged or lost in overseas shipments provided by the Government.
''Shipments provided by the Government'' means via Government vessels,
charter of commercial vessels or by Government bills of lading on
commercial vessels, and includes storage, unloading and off-loading
incident thereto.
(k) Clothing. Where clothing and accessories worn on the person are
damaged or lost:
(1) During the performance of official duties in an unusual or
extraordinary risk situation;
(2) In cases involving emergency action required by natural disaster,
such as fire, flood, hurricane; or enemy or other belligerent action;
(3) In cases involving faulty equipment or defective furniture
maintained by the Government and used by the claimant as required by his
job situation; or
(4) When using a motor vehicle incidental to service. Accessories
would include eyeglasses, hearing aids, and dentures.
(l) Borrowed property. Where borrowed property has been damaged or
lost.
31 CFR 4.4 Claims not payable.
Claims otherwise within the scope of these regulations are
nevertheless not payable when the damage or loss of personal property
incident to service involves any of the following:
(a) Money and currency. Claims are not payable for money or currency
except:
(1) When deposited with authorized personnel as contemplated by
4.3(i).
(2) When lost incident to a marine or aircraft disaster.
(3) When lost by fire, flood, hurricane, or theft from quarters. In
instances of theft from quarters, it must be conclusively shown that the
money or currency was in a locked container and that the quarters
themselves were locked.
(4) When stolen from the temporary quarters or possession of an
employee who by reason of his assignment is required to carry money or
currency. In instances of theft from temporary quarters, it must be
conclusively shown that the money or currency was in a locked container
and that the quarters themselves were locked.
Reimbursement for loss of money or currency will be limited to an
amount determined to have been reasonable for the claimant to have had
in his possession at the time of the incident.
(b) Small items of substantial value. Claims are not payable for
small articles of substantial value and money when shipped with
household goods or as unaccompanied baggage; or for articles easily
pilfered which usually are worn or carried, including watches and
expensive jewelry such as rings, pins, brooches, necklaces, and
bracelets. These limitations do not apply to the articles described
when the loss is cognizable under paragraphs (1) and (2) of 4.3(a).
(c) Articles acquired for other persons. Claims are not payable for
articles intended directly or indirectly for persons other than the
claimant or members of his immediate household. This prohibition
includes articles acquired at the request of others, and articles for
sale.
(d) Articles of extraordinary value. Claims are not payable for
expensive articles of gold, silver, other precious metals, paintings,
antiques other than bulky furnishings, relics, and other articles of
extraordinary value when shipped with household effects by ordinary
means, or as unaccompanied baggage at normal released valuation. Claims
for such articles are payable when their loss is incident to shipment by
expedited mode in accordance with current Joint Travel Regulations.
This prohibition does not apply to baggage checked or in the personal
custody of the claimant or his agent provided reasonable protection or
security measures have been taken.
(e) Intangible property. Claims are not payable for intangible
property such as bank books, checks, promissory notes, stock
certificates, bonds, bills of lading, warehouse receipts, baggage
checks, insurance policies, money orders, and traveler's checks.
(f) Government property. Claims are not payable for property owned
by the United States, except where the claimant is responsible for the
property to an agency of the Government other than the Treasury
Department.
(g) Motor vehicles. Claims for motor vehicles, except as provided
under 4.3 (j), will ordinarily not be paid. However, meritorious
claims for losses of motor vehicles may be recommended for consideration
and approval for payment in exceptional cases.
(h) Enemy property. Claims are not payable for enemy property,
including war trophies.
(i) Losses at quarters. Claims are not payable for losses (including
theft) at quarters not assigned or otherwise provided in kind occupied
by the claimant within the United States.
(j) Losses recoverable from insurer. Claims are not payable for
losses or any portion thereof which have been recovered or are
recoverable from an insurer, except as permitted under 4.7.
(k) Losses recoverable from carrier. Claims are not payable for
losses or any portion thereof which have been recovered or are
recoverable from a carrier, except as permitted under 4.7.
(l) Losses recoverable from contractor. Claims are not payable for
losses, or any portion thereof, which have been recovered or are
recoverable under contract, except as permitted under 4.7.
(m) Negligence of claimant. Claims are not payable for loss of
personal property caused in whole or in part by any negligence or
wrongful act on the part of the claimant, or of his agent or employee.
(n) Property used for business. Claims are not payable for property
normally used for business or profit.
(o) Fees for estimates. Claims are not normally payable for fees
paid to obtain estimates of repair in conjunction with submitting a
claim under this paragraph. However, where, in the opinion of the
approving officer, the claimant could not obtain an estimate without
paying a fee, such a claim may be considered in an amount reasonable in
relation to the value and/or the cost of repairs of the articles
involved, provided that the evidence furnished clearly indicates that
the amount of the fee paid will not be deducted from the cost of repairs
if the work is accomplished by the estimator.
(p) Violation of directives. Claims are not payable for property
acquired, possessed, or transported, in violation of law or regulations
of competent authority. This does not apply to limitations imposed on
weight of shipments of household effects.
(q) Items fraudulently claimed. Claims are not payable for items
fraudulently claimed. When investigation discloses that a claimant, his
agent, or employee has intentionally misrepresented an item claimed, as
to cost, condition, cost to repair, etc., the item will be disallowed in
its entirety even though some actual damage has been sustained.
However, if the remainder of the claim is proper it will be paid. This
does not preclude appropriate disciplinary action if warranted.
(r) Minimum claims. Claims are not payable for damage to or loss of
property in an amount less than $10.
31 CFR 4.5 Factors to be considered in determining claims.
(a) Claims are payable only for such types, quantities, or amounts of
tangible personal property (including money) as the approving authority
shall determine to be reasonable, useful, or proper under the
circumstances existing at the time and place of the loss. In
determining what is reasonable, useful, or proper, the approving
authority will consider the type and quantity of property involved,
circumstances attending acquisition and use of the property, and whether
possession or use by the claimant at the time of loss or damage was
incident to his service. What is reasonable is a question of fact
determined in the light of the officer's or employee's rating, together
with his duty, job, and station assignment.
(b) The Government does not underwrite all personal property losses
that a claimant may sustain and it does not underwrite individual
tastes. While the Government does not attempt to limit possession of
property by an individual, payment for loss or damage is made only to
the extent that the possession of the property is determined to be
reasonable, useful, or proper. If individuals possess excessive
quantities of items and/or expensive items, they should have such
property privately insured.
(c) Cost or value. The amount awarded on any item of property will
not exceed the cost of the item (either the price paid in cash or
property, or the value at the time of acquisition if not acquired by
purchase or exchange). The amount payable will be determined by
applying the principles of depreciation to the adjusted dollar value or
other base price of property lost or damaged beyond economical repair;
by allowing the cost of repairs when an item is economically repairable,
provided the cost of repairs does not exceed the depreciated value of
the item; and by deducting salvage value, if appropriate.
(d) Depreciation. Depreciation in value of an item is determined by
considering the type of article involved, its cost, condition when lost
or damaged beyond economical repair, the time elapsed between the time
of acquisition and the date of accrual of the claim.
(e) Appreciation. There will be no allowance for appreciation in the
value of the property except that the cost of the item will be adjusted
to reflect changes in the purchasing power of the dollar before
depreciation is computed. Appreciation will not be allowed solely
because the loss occurs or the claimant now resides in an area remote
from the place of purchase of the original article.
(f) Expensive articles. Allowance for expensive items (including
heirlooms and antiques) or for items purchased at unreasonably high
prices will be based on the fair and reasonable purchase price for
substitute articles of a similar nature.
(g) Acquisition Allowance for articles acquired by barter will not
exceed the cost of the articles tendered in barter. No reimbursement
will be made for articles acquired in black market or other prohibited
activities.
31 CFR 4.6 Evidence to be submitted by claimant.
The following types of claims require evidence in addition to the
statement of facts and circumstances attending the loss:
(a) Claims for property loss in quarters or other authorized places
should be accompanied by a statement indicating: (1) Geographical
location; (2) whether quarters were assigned or provided in kind by the
Government; (3) whether regularly occupied by the claimant; (4) name
of authority, if any, who designated the place of storage of the
property if other than quarters; (5) measures taken to protect the
property; and (6) that the claimant is not a local inhabitant.
(b) Claims for property loss by theft should be accompanied by a
statement indicating: (1) Geographical location; (2) facts and
circumstances surrounding the loss, including evidence of larceny,
burglary, or housebreaking such as breaking and entering, capture of the
thief, recovery of part of the stolen goods, etc.; and (3) evidence that
the claimant exercised due care in protecting his property prior to the
loss including information as to the degree of care normally exercised
in the locale of the loss due to any unusual risks involved.
(c) Claims for transportation losses should be accompanied by the
following: (1) Copies of orders authorizing the travel, transportation,
or shipment or certificate explaining the absence of orders, and stating
their substance; (2) statement in cases where property was turned over
to a shipping officer, supply officer, or contract packer indicating:
(i) Name (or designation) and address of shipping officer, supply
officer, or contract packer.
(ii) Date property was turned over.
(iii) Inventoried condition when property was turned over.
(iv) When and where property was packed and by whom.
(v) Date of shipment.
(vi) Copies of all bills of lading, inventories, and other applicable
shipping documents.
(vii) Date and place of delivery to claimant.
(viii) Date property was unpacked by carrier, claimant, or
Government.
(ix) Statements of disinterested witnesses as to condition of
property when received and delivered, or as to handling or storage.
(x) Whether the negligence of any Government employee acting within
the scope of his employment caused the damage or loss.
(xi) Whether the last common carrier or local carrier was given a
clear receipt, except for concealed damages.
(xii) Total gross, tare, and net weight of shipment.
(xiii) Insurance certificate or policy if losses are privately
insured.
(xiv) Copy of the demand on carrier or insured, or both, when
required, and the reply, if any.
(xv) Action taken by the claimant to locate missing baggage or
household effects, including related correspondence.
(d) Claims for property losses due to marine or aircraft disaster
should be accompanied by a copy of orders or other evidence to establish
claimant's right to be, or to have his property, on board.
(e) Claims for property losses due to enemy action, public disaster,
public service, or abandonment, should be accompanied by: (1) Copies of
orders or other evidence establishing claimant's required presence in
the area involved; and (2) a detailed statement of facts and
circumstances showing an applicable case enumerated in paragraphs (f)
and (g) of 4.3.
(f) Claims for property losses when the property was used for benefit
of the Government should be accompanied by (1) a statement from proper
authority that the property claimed was required to be supplied by
claimant in the performance of his official duty or occupation at the
request or direction of superior authority or by reason of necessity;
and (2) evidence that, if the property being used for the benefit of the
Government was lost while not in use, that the loss occurred in an
authorized storage area.
(g) Claims for loss of money deposited for safekeeping, transmittal,
or other authorized disposition, should be accompanied by: (1) Name,
grade, service number (if any), and address of the person or persons who
received the money and any others involved; (2) name and designation of
the authority who authorized such person or persons to accept personal
funds, and the disposition requested; and (3) receipts and written
sworn statements explaining the failure to account for funds or return
them to the claimant.
(h) Claims for damage to motor vehicles in transit should be
accompanied by a copy of orders or other available evidence to establish
claimant's lawful right to have the property shipped, and evidence to
establish damage in transit.
31 CFR 4.7 Claims involving carrier and insurer.
(a) Claimant must comply with the following before presenting claims
involving a carrier or insurer:
(1) Whenever property is damaged, lost, or destroyed while being
shipped pursuant to authorized travel orders, the owner must file a
written claim for reimbursement with the carrier according to the terms
of its bill of lading or contract before submitting a concurrent claim
against the Government. The claimant may present his claim to the
Government immediately after he has made his demand on the carrier;
(2) Whenever property which is damaged, lost, or destroyed incident
to the claimant's service, is insured in whole or in part, the claimant
must make demand in writing against the insurer for reimbursement under
the terms and conditions of the insurance coverage. Such demand should
be made within the time limit provided in the policy and prior to the
filing of a concurrent claim against the Government. The claimant may
present his claims to the Government immediately after he has made his
demand on the insurer.
(b) If the claimant fails to make required demand on the carrier or
insurer or make reasonable efforts to collect the amount recoverable,
the amount payable under the provisions of these regulations shall be
reduced by the maximum amount recoverable. However, no deduction will
be made if (1) the circumstances of the claimant's service were such as
to preclude timely filing of the claim with the carrier or insurer; and
(2) it is determined that a demand would have been impracticable or
unavailing in any event.
(c) To expedite the settlement of claims for loss or damage of
household effects, a claim may be presented to the Government concurrent
with the demand on a carrier and/or insurer.
(d) When any claim is paid by the Department, the claimant will
assign to the United States, to the extent of any payment on his claim
accepted by him all his rights, title, and interest in any claim he may
have against any carrier, insurer or other party arising out of the
incident on which the claim against the United States is based. On
request, he also will furnish such evidence as may be required to enable
the United States to enforce the claim.
(e) After payment of his claim by the United States, if the claimant
receives any payment from a carrier, contractor, insurer, or other third
party, he will pay the proceeds to the United States to the extent of
the payment received by him from the United States.
31 CFR 4.8 Filing of claims.
A claimant should submit his claim in writing on form No. 3079,
together with the supporting information required by the form, to his
immediate supervisor who shall be responsible for forwarding it to the
claims officer or other person designated to handle claims. After the
completion of action on the claim by the appropriate official of the
bureau, office, service, or division out of whose activities the claim
arose, the employee will be notified of the action taken on his claim.
31 CFR 4.9 Application to claims not previously adjusted.
The provisions of these regulations in this part shall apply to all
claims arising after August 31, 1964, otherwise within its scope, not
heretofore adjusted.
31 CFR 4.10 Statute of limitations.
(a) Claims must be presented in writing within 2 years after the
claim accrues except that if the claim accrues in time of war or in time
of armed conflict in which the Armed Forces of the United States are
engaged, or if such a war or armed conflict intervenes within 2 years
after it accrues, and if a good cause is shown, the claim may be
presented not later than 2 years after that cause ceases to exist, or 2
years after the war or armed conflict is terminated, whichever is
earlier. For the purpose of these sections, the dates of beginning and
ending of an armed conflict are the dates established by concurrent
resolution of Congress or by a determination of the President.
(b) Claims will be determined to have accrued at such time as the
loss or damage is or should have been discovered or ascertained through
exercise of due diligence by the claimant, even though such loss or
damage may have happened at a prior time.
31 CFR 4.11 Attorney's fees.
No more than 10 per centum of the amount paid in settlement of each
individual claim submitted and settled under these regulations shall be
paid or delivered to or received by any agent or attorney on account of
services rendered in connection with that claim.
31 CFR 4.12 Bureau implementation.
The head of each bureau, office, service or division of the Treasury
Department may issue such further instructions as he shall deem
necessary to implement these regulations in this part in the District of
Columbia and in the field, including the designation of the persons to
receive and process claims filed by employees.
31 CFR 4.12 PART 5 -- CLAIMS COLLECTION
31 CFR 4.12 Subpart A -- Administrative Collection, Compromise,
Termination and Referral of Claims
Sec.
5.1 Authority.
5.2 Incorporation by reference; scope.
5.3 Designation.
5.4 Application to other statutes.
31 CFR 4.12 Subpart B -- Salary Offset
5.5 Purpose.
5.6 Scope.
5.7 Designation.
5.8 Definitions.
5.9 Applicability of regulations.
5.10 Waiver requests and claims to the General Accounting Office.
5.11 Notice requirements before offset.
5.12 Hearing.
5.13 Certification.
5.14 Voluntary repayment agreements as alternative to salary offset.
5.15 Special review.
5.16 Notice of salary offset.
5.17 Procedures for salary offset.
5.18 Coordinating offset with other agencies.
5.19 Interest, penalties and administrative costs.
5.20 Refunds.
5.21 Request for the services of a hearing official from the creditor
agency.
5.22 Non-waiver of rights by payments.
31 CFR 4.12 Subpart C -- Tax Refund Offset
5.23 Applicability and scope.
5.24 Designation.
5.25 Definitions.
5.26 Preconditions for Department participation.
5.27 Procedures.
5.28 Referral of debts for offset.
5.29 Notice requirements before offset.
31 CFR 4.12 Subpart D -- Administrative Offset
5.30 Scope of regulations.
5.31 Designation.
5.32 Definitions.
5.33 General.
5.34 Notification procedures.
5.35 Agency review.
5.36 Written agreement for repayment.
5.37 Administrative offset.
5.38 Jeopardy procedure.
31 CFR 4.12 Subpart A -- Administrative Collection, Compromise,
Termination and Referral of Claims
Authority: 31 U.S.C. 3711.
Source: 32 FR 452, Jan. 17, 1967, unless otherwise noted.
31 CFR 5.1 Authority.
The regulations of this part are issued under section 3 of the
Federal Claims Collection Act of 1966, Pub. L. 89-508, 80 Stat. 308,
309, and in conformity with the Joint Regulations issued under that Act
by the General Accounting Office and the Department of Justice
prescribing standards for administrative collection, compromise,
termination of agency collection action, and referral to the General
Accounting Office and to the Department of Justice for litigation, of
civil claims by the Government for money or property, 4 CFR Chapter II.
31 CFR 5.2 Incorporation by reference; scope.
The regulations of this part incorporate by this reference all
provisions of the Joint Regulations of the General Accounting Office and
the Department of Justice, and supplement those regulations by the
prescription of procedures and directives necessary and appropriate for
Treasury operations. The Joint Regulations and this part do not apply
to tax claims nor to any claim as to which there is an indication of
fraud or misrepresentation, as described in 101.3 of the Joint
Regulations, unless returned by the Justice Department to the Treasury
Department for handling.
31 CFR 5.3 Designation.
The heads of bureaus and offices and their delegates are designated
as designees of the Secretary of the Treasury authorized to perform all
the duties for which the Secretary is responsible under the foregoing
Act and Joint Regulations: Provided, however, That no compromise of a
claim shall be effected or collection action terminated, except upon the
recommendation of the General Counsel, the Chief Counsel of the bureau
or office concerned, or the designee of either. Notwithstanding the
foregoing proviso, no such recommendation shall be required with respect
to the termination of collection activity on any claim in which the
unpaid amount of the debt is $300 or less.
(Sec. 3, 80 Stat. 309; 31 U.S.C. 951-953, 4 CFR Chap. II; 31 U.S.C.
3711, 96 Stat. 971 (1982))
(34 FR 5159, Mar. 13, 1969, as amended at 49 FR 45579, Nov. 19, 1984)
31 CFR 5.4 Application to other statutes.
(a) The authority of the Secretary of the Treasury or the head of a
bureau or office within the Treasury Department to compromise claims of
the United States shall be exercised with respect to claims not
exceeding $20,000, exclusive of interest, in conformity with the Federal
Claims Collection Act, the Joint Regulations thereunder, and this part,
except where standards are established by other statutes or authorized
regulations issued pursuant thereto.
(b) The authority of the Secretary of the Treasury or the head of a
bureau or office within the Treasury Department to remit or mitigate a
fine, penalty or forfeiture shall be exercised in accordance with the
standards for remission or mitigation established in the governing
statute or in Departmental enforcement policies. In the absence of such
standards, the standards of the Joint Regulations shall be followed to
the extent applicable.
31 CFR 5.4 Subpart B -- Salary Offset
Authority: 5 U.S.C. 5514; 5 CFR part 550, subpart K.
Source: 52 FR 39514, Oct. 22, 1987, unless otherwise noted.
31 CFR 5.5 Purpose.
The purpose of the Debt Collection Act of 1982, (Pub. L. 97-365), is
to provide a comprehensive statutory approach to the collection of debts
due the Federal Government. These regulations implement section 5 of
the Act which authorizes the collection of debts owed by Federal
employees to the Federal Government by means of salary offsets, except
that no claim may be collected by such means if outstanding for more
than 10 years after the agency's right to collect the debt first
accrued, unless facts material to the Government's right to collect were
not known and could not reasonably have been known by the official or
officials who were charged with the responsibility for discovery and
collection of such debts. These regulations are consistent with the
regulations on salary offset published by the Office of Personnel
Management (OPM) on July 3, 1984, codified in sSubpart K of part 550 of
title 5 of the Code of Federal Regulations.
31 CFR 5.6 Scope.
(a) These regulations provide Departmental procedures for the
collection by salary offset of a Federal employee's pay to satisfy
certain debts owed the Government.
(b) These regulations apply to collections by the Secretary of the
Treasury from:
(1) Federal employees who owe debts to the Department; and
(2) Employees of the Department who owe debts to other agencies.
(c) These regulations do not apply to debts or claims arising under
the Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.);
the Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the
United States; or to any case where collection of a debt by salary
offset is explicitly provided for or prohibited by another statute
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses
in 5 U.S.C. 4108).
(d) These regulations do not apply to any adjustment to pay arising
out of an employee's election of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay, if
the amount to be recovered was accumulated over four pay periods or
less.
(e) Nothing in these regulations precludes the compromise,
suspension, or termination of collection actions where appropriate under
the standards implementing the Federal Claims Collection Act (31 U.S.C.
3711 et seq., 4 CFR parts 101-105, 38 CFR 1.1900 et seq.).
31 CFR 5.7 Designation.
The heads of bureaus and offices and their delegates are designated
as designees of the Secretary of the Treasury authorized to perform all
the duties for which the Secretary is responsible under the foregoing
act and Office of Personnel Management Regulations: Provided, however,
That no compromise of a claim shall be effected or collection action
terminated, except upon the recommendation of the General Counsel, the
Chief Counsel of the bureau or office concerned, or the designee of
either. Notwithstanding the foregoing provision, no such recommendation
shall be required with respect to the termination of collection activity
on any claim in which the unpaid amount of the debt is $300 or less.
31 CFR 5.8 Definitions.
As used in this part (except where the context clearly indicates, or
where the term is otherwise defined elsewhere in this part) the
following definitions shall apply:
(a) ''Agency'' means:
(1) An Executive Agency as defined by section 105 of Title 5, United
States Code, including the U.S. Postal Service and the U.S. Postal Rate
Commission;
(2) A military department as defined by section 102 of Title 5,
United States Code;
(3) An agency or court of the judicial branch including a court as
defined in section 610 of Title 28, United States Code, the District
Court for the Northern Mariana Islands and the Judicial Panel on
Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the Federal
Government.
(b) ''Bureau Salary Offset Coordination Officer'' means an official
designated by the head of each bureau who is responsible for
coordinating debt collection activities for the bureau. The Secretary
shall designate a bureau salary offset coordinator for the Departmental
offices.
(c) ''Certification'' means a written debt claim form received from a
creditor agency which requests the paying agency to offset the salary of
an employee.
(d) ''Creditor agency'' means an agency of the Federal Government to
which the debt is owed.
(e) ''Debt'' or ''claim'' means money owed by an employee of the
Federal Government to an agency of the Federal Government from sources
which include loans insured or guaranteed by the United States and all
other amounts due the Government from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interests, fines and forfeitures (except those arising under
the Uniform Code of Military Justice) and all other similar sources.
(f) ''Department'' or ''Treasury Department'' means the Departmental
Offices of the Department of the Treasury and each bureau of the
Department.
(g) ''Disposable pay'' means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or, in the case of an
employee not entitled to basic pay, other authorized pay remaining after
the deduction of any amount required by law to be withheld. The
Department shall allow the following deductions in determining
disposable pay subject to salary offset:
(1) Federal employment taxes;
(2) Amounts deducted for the U.S. Soldiers' and Airmen's Home;
(3) Fines and forfeiture ordered by a court martial or by a
commanding officer;
(4) Federal, state or local income taxes no greater than would be the
case if the employee claimed all dependents to which he or she is
entitled and such additional amounts for which the employee presents
evidence of a tax obligation supporting the additional withholding;
(5) Health insurance premiums;
(6) Normal retirement contributions (e.g., Civil Service Retirement
deductions, Survivor Benefit Plan or Retired Serviceman's Family
Protection Plan); and
(7) Normal life insurance premiums, exclusive of optional life
insurance premiums (e.g., Serviceman's Group Life Insurance and
''basic'' Federal Employee's Group Life Insurance premiums).
(h) ''Employee'' means a current employee of the Treasury Department
or other agency, including a current member of the Armed Forces or
Reserve of the Armed Forces of the United States.
(i) Federal Claims Collection Standards, ''FCCS,'' jointly published
by the Department of Justice and the General Accounting Office at 4 CFR
101.1 et seq.
(j) ''Hearing official'' means an individual responsible for
conducting any hearing with respect to the existence or amount of a debt
claimed, and rendering a decision on the basis of such hearing. A
hearing official may not be under the supervision or control of the
Secretary of the Department of the Treasury when Treasury is the
creditor agency.
(k) ''Paying agency'' means the agency of the Federal Government
which employs the individual who owes a debt to an agency of the Federal
Government. In some cases, the Department may be both the creditor and
the paying agency.
(l) ''Notice of intent to offset'' or ''notice of intent'' means a
written notice from a creditor agency to an employee which alleges that
the employee owes a debt to the creditor agency and apprising the
employee of certain administrative rights.
(m) ''Notice of salary offset'' means a written notice from the
paying agency to an employee after a certification has been issued by a
creditor agency, informing the employee that salary offset will begin at
the next officially established pay interval.
(n) ''Payroll office'' means the payroll office in the paying agency
which is primarily responsible for the payroll records and the
coordination of pay matters with the appropriate personnel office with
respect to an employee. Payroll office, with respect to the Department
of the Treasury means the payroll offices of each bureau and the Office
of the Assistant Secretary of the Treasury for Management for the
Departmental Offices.
(o) ''Salary offset'' means an administrative offset to collect a
debt under 5 U.S.C. 5514 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee,
without his or her consent.
(p) ''Secretary'' means the Secretary of the Treasury or his or her
designee.
(q) ''Waiver'' means the cancellation, remission, forgiveness, or
non-recovery of a debt allegedly owed by an employee to the Department
or another agency as permitted or required by 5 U.S.C. 5584 or 8346(b),
10 U.S.C. 2774, 32 U.S.C. 716, or any other law.
31 CFR 5.9 Applicability of regulations.
These regulations are to be followed in instances where:
(a) The Department is owed a debt by an individual currently employed
by another agency;
(b) Where the Department is owed a debt by an individual who is a
current employee of the Department; or
(c) Where the Department currently employs an individual who owes a
debt to another Federal Agency. Upon receipt of proper certification
from the creditor agency, the Department will offset the
debtor-employee's salary in accordance with these regulations.
31 CFR 5.10 Waiver requests and claims to the General Accounting
Office.
These regulations do not preclude an employee from requesting waiver
of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32
U.S.C. 716, or in any way questioning the amount or validity of a debt
by submitting a subsequent claim to the General Accounting Office in
accordance with the procedures prescribed by the General Accounting
Office. These regulations also do not preclude an employee from
requesting a waiver pursuant to other statutory provisions pertaining to
the particular debts being collected.
31 CFR 5.11 Notice requirements before offset.
(a) Deductions under the authority of 5 U.S.C. 5514 shall not be made
unless the creditor agency provides the employee with written notice
that he/she owes a debt to the Federal Government, a minimum of 30
calendar days before salary offset is initiated. When Treasury is the
creditor agency this notice of intent to offset an employee's salary
shall be hand-delivered or sent by certified mail to the most current
address that is available to the Department and will state:
(1) That the Secretary has reviewed the records relating to the claim
and has determined that a debt is owed, the amount of the debt, and the
facts giving rise to the debt;
(2) The Secretary's intention to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest is paid in full;
(3) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(4) An explanation of the Department's policy concerning interest,
penalties and administrative costs including a statement that such
assessments must be made unless excused in accordance with the Federal
Claims Collection Standards, 4 CFR 101.1 et seq.;
(5) The employee's right to inspect and copy all records of the
Department pertaining to the debt claimed or to receive copies of such
records if personal inspection is impractical;
(6) The right to a hearing conducted by an impartial hearing official
(an administrative law judge, or alternatively, a hearing official not
under the supervision or control of the Secretary) with respect to the
existence and amount of the debt claimed, or the repayment schedule
(i.e., the percentage of disposable pay to be deducted each pay period),
so long as a petition is filed by the employee as prescribed in 5.12;
(7) If not previously provided, the opportunity (under terms
agreeable to the Department) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be in writing, signed by both the employee and the creditor agency
(4 CFR 102.2(e));
(8) The name, address and phone number of an officer or employee of
the Department who may be contacted concerning procedures for requesting
a hearing;
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a petition for a hearing on or before
the fifteenth calendar day following receipt of such notice of intent
will stay the commencement of collection proceedings;
(11) The name and address of the office to which the petition should
be sent;
(12) That the Department will initiate certification procedures to
implement a salary offset, as appropriate, (which may not exceed 15
percent of the employee's disposable pay) not less than thirty (30) days
from the date of receipt of the notice of debt, unless the employee
files a timely petition for a hearing;
(13) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than sixty (60)
days after the filing of the petition requesting the hearing, unless the
employee requests and the hearing official grants a delay in the
proceedings;
(14) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under Chapter 75 of Title 5,
United States Code, part 752 of title 5, Code of Federal Regulations, or
any other applicable statute or regulations;
(ii) Penalties under the False Claims Act, sections 3729-3731 of
Title 31, United States Code or any other applicable statutory
authority; and
(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of
Title 18, United States Code or any other applicable statutory
authority;
(15) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
(16) That unless there are applicable contractual or statutory
provisions to the contrary, that amounts paid on or deducted for the
debt which are later waived or found not owed to the United States will
be promptly refunded to the employee (5 U.S.C. 5514); and
(17) Proceedings with respect to such debt are governed by section 5
of the Debt Collection Act of 1982 (5 U.S.C. 5514).
(b) The Department is not required to comply with paragraph (a) of
this section for any adjustment to pay arising out of an employee's
election of coverage or a change in coverage under a Federal benefits
program requiring periodic deductions from pay if the amount to be
recovered was accumulated over four pay periods or less.
31 CFR 5.12 Hearing.
(a) Request for hearing. Except as provided in paragraph (b) of this
section, an employee who desires a hearing concerning the existence or
amount of the debt or the proposed offset schedule must send such a
request to the office designated in the notice of intent. See
5.11(a)(8). The request (or petition) for hearing must be received by
the designated office on or before the fifteenth (15) calendar day
following receipt of the notice. The employee must also specify whether
an oral or paper hearing is requested. If an oral hearing is desired,
the request should explain why the matter cannot be resolved by review
of the documentary evidence alone.
(b) Failure to timely submit. If the employee files a petition for a
hearing after the expiration of the fifteen (15) calendar day period
provided for in paragraph (a) of this section, the Department should
accept the request if the employee can show that the delay was the
result of circumstances beyond his or her control or because of a
failure to receive actual notice of the filing deadline (unless the
employee had actual notice of the filing deadline).
(1) An employee waives the right to a hearing, and will have his or
her disposable pay offset in accordance with the Department's offset
schedule, if the employee:
(i) Fails to file a request for a hearing unless such failure is
excused; or
(ii) Fails to appear at an oral hearing of which he or she was
notified unless the hearing official determines failure to appear was
due to circumstances beyond the employee's control (5 U.S.C. 5514).
(c) Representation at the hearing. The creditor agency may be
represented by legal counsel. The employee may represent himself or
herself or may be represented by an individual of his or her choice and
at his or her own expense.
(d) Review of departmental records related to the debt. (1) In
accordance with 5.11(a)(5), an employee who intends to inspect or copy
creditor agency records related to the debt must send a letter to the
official designated in the notice of intent to offset stating his or her
intention. The letter must be received within fifteen (15) calendar
days after receipt of the notice.
(2) In response to a timely request submitted by the debtor, the
designated official will notify the employee of the location and time
when the employee may inspect and copy records related to the debt.
(3) If personal inspection is impractical, arrangements shall be made
to send copies of such records to the employee.
(e) Hearing official. Unless the Department appoints an
administrative law judge to conduct the hearing, the Department must
obtain a hearing official who is not under the supervision or control of
the Secretary of the Treasury.
(f) Obtaining the services of a hearing official when the Department
is the creditor agency. (1) When the debtor is not a Department
employee, and in the event that the Department cannot provide a prompt
and appropriate hearing before an administrative law judge or before a
hearing official furnished pursuant to another lawful arrangement, the
Department may contact an agent of the paying agency designated in
Appendix A to part 581 of title 5, Code of Federal Regulations or as
otherwise designated by the agency, and request a hearing official.
(2) When the debtor is a Department employee, the Department may
contact any agent of another agency designated in Appendix A to part 581
of title 5, Code of Federal Regulations or otherwise designated by that
agency, to request a hearing official.
(g) Procedure. (1) After the employee requests a hearing, the
hearing official or administrative law judge shall notify the employee
of the form of the hearing to be provided. If the hearing will be oral,
notice shall set forth the date, time and location of the hearing. If
the hearing will be paper, the employee shall be notified that he or she
should submit arguments in writing to the hearing official or
administrative law judge by a specified date after which the record
shall be closed. This date shall give the employee reasonable time to
submit documentation.
(2) Oral hearing. An employee who requests an oral hearing shall be
provided an oral hearing if the hearing official or administrative law
judge determines that the matter cannot be resolved by review of
documentary evidence alone (e.g., when an issue of credibility or
veracity is involved). The hearing is not an adversarial adjudication,
and need not take the form of an evidentiary hearing. Oral hearings may
take the form of, but are not limited to:
(i) Informal conferences with the hearing official or administrative
law judge, in which the employee and agency representative will be given
full opportunity to present evidence, witnesses and argument;
(ii) Informal meetings with an interview of the employee; or
(iii) Formal written submissions, with an opportunity for oral
presentation.
(3) Paper hearing. If the hearing official or administrative law
judge determines that an oral hearing is not necessary, he or she will
make the determination based upon a review of the available written
record (5 U.S.C. 5514).
(4) Record. The hearing official must maintain a summary record of
any hearing provided by this subpart. See 4 CFR 102.3. Witnesses who
testify in oral hearings will do so under oath or affirmation.
(h) Date of decision. The hearing official or administrative law
judge shall issue a written opinion stating his or her decision, based
upon documentary evidence and information developed at the hearing, as
soon as practicable after the hearing, but not later than sixty (60)
days after the date on which the petition was received by the creditor
agency, unless the employee requests a delay in the proceedings. In
such case the sixty (60) day decision period shall be extended by the
number of days by which the hearing was postponed.
(i) Content of decision. The written decision shall include:
(1) A statement of the facts presented to support the origin, nature,
and amount of the debt;
(2) The hearing official's findings, analysis and conclusions; and
(3) The terms of any repayment schedules, if applicable.
(j) Failure to appear. In the absence of good cause shown (e.g.,
excused illness), an employee who fails to appear at a hearing shall be
deemed, for the purpose of this subpart, to admit the existence and
amount of the debt as described in the notice of intent. If the
representative of the creditor agency fails to appear, the hearing
official shall proceed with the hearing as scheduled, and make his/her
determination based upon the oral testimony presented and the
documentary documentation submitted by both parties. At the request of
both parties, the hearing official shall schedule a new hearing date.
Both parties shall be given reasonable notice of the time and place of
this new hearing.
31 CFR 5.13 Certification.
(a) The bureau salary offset coordination officer shall provide a
certification to the paying agency in all cases where:
(1) The hearing official determines that a debt exists;
(2) The employee admits the existence and amount of the debt by
failing to request a hearing; or
(3) The employee admits the existence of the debt by failing to
appear at a hearing.
(b) The certification must be in writing and must state:
(1) The employee owes the debt;
(2) The amount and basis of the debt;
(3) The date the Government's right to collect the debt first
accrued;
(4) The Department's regulations have been approved by OPM pursuant
to 5 CFR part 550, subpart K;
(5) The amount and date of the lump sum payment;
(6) If the collection is to be made in installments, the number of
installments to be collected, the amount of each installment, and the
commencing date of the first installment, if a date other than the next
officially established pay period is required; and
(7) The dates the action(s) was taken and that it was taken pursuant
to 5 U.S.C. 5514.
31 CFR 5.14 Voluntary repayment agreements as alternative to salary
offset.
(a) In response to a notice of intent to an employee may propose to
repay the debt as an alternative to salary offset. Any employee who
wishes to repay a debt without salary offset shall submit in writing a
proposed agreement to repay the debt. The proposal shall admit the
existence of the debt and set forth a proposed repayment schedule. Any
proposal under this subsection must be received by the official
designated in that notice within fifteen (15) calendar days after
receipt of the notice of intent.
(b) When the Department is the creditor agency and in response to a
timely proposal by the debtor, the Secretary will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within the Secretary's discretion to accept a
repayment agreement instead of proceeding by offset.
(c) If the Secretary decides that the proposed repayment agreement is
unacceptable, the employee will have fifteen (15) days from the date he
or she received notice of the decision to file a petition for a hearing.
(d) If the Secretary decides that the proposed repayment agreement is
acceptable, the alternative arrangement must be in writing and signed by
both the employee and the Secretary.
31 CFR 5.15 Special review.
(a) An employee subject to salary offset or a voluntary repayment
agreement, may, at any time, request a special review by the creditor
agency of the amount of the salary offset or voluntary payment, based on
materially changed circumstances such as, but not limited to
catastrophic illness, divorce, death, or disability.
(b) In determining whether an offset would prevent the employee from
meeting essential subsistence expenses (costs incurred for food,
housing, clothing, transportation and medical care), the employee shall
submit a detailed statement and supporting documents for the employee,
his or her spouse and dependents indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
(c) If the employee requests a special review under this section, the
employee shall file an alternative proposed offset or payment schedule
and a statement, with supporting documents, showing why the current
salary offset or payments result in an extreme financial hardship to the
employee.
(d) The Secretary shall evaluate the statement and supporting
documents, and determine whether the original offset or repayment
schedule imposes an extreme financial hardship on the employee. The
Secretary shall notify the employee in writing of such determination,
including, if appropriate, a revised offset or payment schedule.
(e) If the special review results in a revised offset or repayment
schedule, the bureau salary offset coordination officer shall provide a
new certification to the paying agency.
31 CFR 5.16 Notice of salary offset.
(a) Upon receipt of proper certification of the creditor agency, the
bureau payroll office will send the employee a written notice of salary
offset. Such notice shall, at a minimum:
(1) Contain a copy of the certification received from the creditor
agency; and
(2) Advise the employee that salary offset will be initiated at the
next officially established pay interval.
(b) The bureau payroll office shall provide a copy of the notice to
the creditor agency and advise such agency of the dollar amount to be
offset and the pay period when the offset will begin.
31 CFR 5.17 Procedures for salary offset.
(a) The Secretary shall coordinate salary deductions under this
subpart.
(b) The appropriate bureau payroll office shall determine the amount
of an employee's disposable pay and will implement the salary offset.
(c) Deductions shall begin within three official pay periods
following receipt by the payroll office of certification.
(d) Types of collection -- (1) Lump-sum payment. If the amount of
the debt is equal to or less than 15 percent of disposable pay, such
debt generally will be collected in one lump-sum payment.
(2) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The
size and frequency of installment deductions will bear a reasonable
relation to the size of the debt and the employee's ability to pay.
However, the amount deducted from any period will not exceed 15 percent
of the disposable pay from which the deduction is made unless the
employee has agreed in writing to the deduction of a greater amount.
(3) Lump-sum deductions from final check. A lump-sum deduction
exceeding the 15 percent disposable pay limitation may be made from any
final salary payment pursuant to 31 U.S.C. 3716 in order to liquidate
the debt, whether the employee is being separated voluntarily or
involuntarily.
(4) Lump-sum deductions from other sources. Whenever an employee
subject to salary offset is separated from the Department, and the
balance of the debt cannot be liquidated by offset of the final salary
check, the Department, pursuant to 31 U.S.C. 3716, may offset any later
payments of any kind against the balance of the debt.
(e) Multiple debts. In instances where two or more creditor agencies
are seeking salary offsets, or where two or more debts are owed to a
single creditor agency, the bureau payroll office may, at its
discretion, determine whether one or more debts should be offset
simultaneously within the 15 percent limitation.
(f) Precedence of debts owed to Treasury. For Treasury employees,
debts owed to the Department generally take precedence over debts owed
to other agencies. In the event that a debt to the Department is
certified while an employee is subject to a salary offset to repay
another agency, the bureau payroll office may decide whether to have
that debt repaid in full before collecting its claim or whether changes
should be made in the salary deduction being sent to the other agency.
If debts owed the Department can be collected in one pay period, the
bureau payroll office may suspend the salary offset to the other agency
for that pay period in order to liquidate the Department's debt. When
an employee owes two or more debts, the best interests of the Government
shall be the primary consideration in the determination by the payroll
office of the order of the debt collection.
31 CFR 5.18 Coordinating salary offset with other agencies.
(a) Responsibility of the Department as the creditor agency. (1) The
Secretary shall coordinate debt collections and shall, as appropriate:
(i) Arrange for a hearing upon proper petition by a Federal employee;
and
(ii) Prescribe, upon consultation with the General Counsel, such
practices and procedures as may be necessary to carry out the intent of
this regulation.
(2) The head of each bureau shall designate a salary offset
coordination officer who will be responsible for:
(i) Ensuring that each notice of intent to offset is consistent with
the requirements of 5.11;
(ii) Ensuring that each certification of debt sent to a paying agency
is consistent with the requirements of 5.13;
(iii) Obtaining hearing officials from other agencies pursuant to
5.12(f); and
(iv) Ensuring that hearings are properly scheduled.
(3) Requesting recovery from current paying agency. Upon completion
of the procedures established in these regulations and pursuant to 5
U.S.C. 5514, the Department must:
(i) Certify, in writing, that the employee owes the debt, the amount
and basis of the debt, the date on which payment(s) is due, the date the
Government's right to collect the debt first accrued, and that the
Department's regulations implementing 5 U.S.C. 5514 have been approved
by the Office of Personnel Management;
(ii) Advise the paying agency of the action(s) taken under 5 U.S.C.
5514(b) and give the date(s) the action(s) was taken (unless the
employee has consented to the salary offset in writing or signed a
statement acknowledging receipt of the required procedures and the
written consent or statement is forwarded to the paying agency);
(iii) Except as otherwise provided in this paragraph, submit a debt
claim containing the information specified in paragraphs (a)(3) (i) and
(ii) of this section and an installment agreement (or other instruction
on the payment schedule), if applicable, to the employee's paying
agency;
(iv) If the employee is in the process of separating, the Department
must submit its debt claim to the employee's paying agency for
collection as provided in 5.12. The paying agency must certify the
total amount of its collection and notify the creditor agency and the
employee as provided in paragraph (b)(4) of this section. If the paying
agency is aware that the employee is entitled to payments from the Civil
Service Retirement Fund and Disability Fund, or other similar payments,
it must provide written notification to the agency responsible for
making such payments that the debtor owes a debt (including the amount)
and that the provisions of his section have been fully complied with.
However, the Department must submit a properly certified claim to the
agency responsible for making such payments before the collection can be
made.
(v) If the employee is already separated and all payments due from
his or her former paying agency have been paid, the Department may
request, unless otherwise prohibited, that money due and payable to the
employee from the Civil Service Retirement Fund and Disability Fund (5
CFR 831.1801 et seq.) or other similar funds, be administratively offset
to collect the debt (See 31 U.S.C. 3716 and the FCCS).
(4) When an employee transfers to another paying agency, the
Department shall not repeat the due process procedures described in 5
U.S.C. 5514 and this subpart to resume the collection. The Department
must review the debt upon receiving the former paying agency's notice of
the employee's transfer to make sure the collection is resumed by the
paying agency.
(b) Responsibility of the Department as the paying agency -- (1)
Complete claim. When the Department receives a certified claim from a
creditor agency, deductions should be scheduled to begin at the next
officially established pay interval. The employee must receive written
notice that the Department has received a certified debt claim from the
creditor agency (including the amount) and written notice of the date
salary offset will begin and the amount of such deductions.
(2) Incomplete claim. When the Department receives an incomplete
certification of debt from a creditor agency, the Department must return
the debt claim with notice that procedures under 5 U.S.C. 551 and this
subpart must be provided and a properly certified debt claim received
before action will be taken to collect from the employee's current pay
account.
(3) Review. The Department is not authorized to review the merits of
the creditor agency's determination with respect to the amount or
validity of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to another. If,
after the creditor agency has submitted the debt claim to the
Department, the employee transfers to a different agency before the debt
is collected in full, the Department must certify the total amount
collected on the debt. One copy of the certification must be furnished
to the employee and one copy to the creditor agency along with notice of
the employee's transfer.
31 CFR 5.19 Interest, penalties and administrative costs.
(a) The Department shall assess interest, penalties and
administrative costs on debts owed pursuant to 31 U.S.C. 3717 and 4 CFR
101.1 et seq.
31 CFR 5.20 Refunds.
(a) In instances where the Department is the creditor agency, it
shall promptly refund any amount deducted under the authority of 5
U.S.C. 5514 when:
(1) The debt is waived or otherwise found not to be owing the United
States; or
(2) An administrative or judicial order directs the Department to
make a refund.
(b) Unless required or permitted by law or contract, refunds under
this subsection shall not bear interest.
31 CFR 5.21 Request for the services of a hearing official from the
creditor agency.
(a) The Department will provide a hearing official upon request of
the creditor agency when the debtor is employed by the Department and
the creditor agency cannot provide a prompt and appropriate hearing
before an administrative law judge or before a hearing official
furnished pursuant to another lawful arrangement.
(b) The Department will provide a hearing official upon request of a
creditor agency when the debtor works for the creditor agency and that
agency cannot arrange for a hearing official.
(c) The bureau salary offset coordination officer will appoint
qualified personnel to serve as hearing officials.
(d) Services rendered under this section will be provided on a fully
reimbursable basis pursuant to the Economy Act of 1932, as amended, 31
U.S.C. 1535.
31 CFR 5.22 Non-waiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
being collected under this Subpart must not be construed as a waiver of
any rights which the employee may have under 5 U.S.C. 5514 or any other
provisions of a written contract or law unless there are statutory or
contractual provisions to the contrary.
31 CFR 5.22 Subpart C -- Tax Refund Offset
Authority: 31 U.S.C. 3720A; 26 CFR 301.6402-6T.
Source: 52 FR 50, Jan. 2, 1987, unless otherwise noted.
31 CFR 5.23 Applicability and scope.
(a) These regulations implement 31 U.S.C. 3720A which authorizes the
IRS to reduce a tax refund by the amount of a past-due legally
enforceable debt owed to the United States.
(b) For purposes of this section, a past-due legally enforceable debt
referable to the IRS is a debt which is owed to the United States and:
(1) Except in the case of a judgment debt, has been delinquent for at
least three months and will not have been delinquent more than ten years
at the time the offset is made;
(2) Cannot be currently collected pursuant to the salary offset
provisions of 5 U.S.C. 5514;
(3) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by
administrative offset under 31 U.S.C. 3716(a) by the referring agency
against amounts payable to the debtor by the referring agency;
(4) With respect to which the bureau has given the taxpayer at least
sixty (60) days to present evidence that all or part of the debt is not
past-due or legally enforceable, has considered evidence presented by
such taxpayer, and determined that an amount of such debt is past-due
and legally enforceable;
(5) Which, in the case of a debt to be referred to the Service after
June 30, 1986, has been disclosed by the bureau to a consumer reporting
agency as authorized by 31 U.S.C. 3711(f), unless the consumer reporting
agency would be prohibited from reporting information concerning the
debt by reason of 15 U.S.C. 1681c;
(6) With respect to which the Department has notified or has made a
reasonable attempt to notify the taxpayer that:
(i) The debt is past due, and
(ii) Unless repaid within 60 days thereafter, the debt will be
referred to the IRS for offset against any overpayment of tax; and
(7) Is at least $25.
31 CFR 5.24 Designation.
The heads of bureaus and their delegates are designated as designees
of the Secretary of the Treasury authorized to perform all the duties
for which the Secretary is responsible under the foregoing statutes and
IRS Regulations: Provided, however, That no compromise of a claim shall
be effected or collection action terminated, except upon the
recommendation of the bureau Chief Counsel or his or her designee.
Notwithstanding the foregoing proviso, no such recommendation shall be
required with respect to the termination of collection activity on any
claim in which the unpaid amount of the debt is $300 or less.
31 CFR 5.25 Definitions.
For purposes of this subpart:
Commissioner means the Commissioner of the Internal Revenue Service.
Debt means money owed by an individual from sources which include
loans insured or guaranteed by the United States and all other amounts
due the U.S. from fees, leases, rents, royalties, services, sales of
real or personal property, overpayments, penalties, damages, interest,
fines, forfeitures (except those arising under the Uniform Code of
Military Justice), administrative costs and all other similar sources.
Memorandum of Understanding (MOU or agreement) means the agreement
between the IRS and the individual bureaus which prescribes the specific
conditions the bureaus must meet before the IRS will accept referrals
for tax refund offsets.
31 CFR 5.26 Preconditions for Department participation.
(a) The Department, through the individual bureaus, will provide
information to the Service within the time frame prescribed by the
Commissioner of the IRS to enable the Commissioner to make a final
determination as to the each bureau's participation in the tax refund
offset program. Such information shall include a description of:
(1) The size and age of the bureau's inventory of delinquent debts;
(2) The prior collection efforts that the inventory reflects; and
(3) The quality controls the bureau maintains to assure that any debt
the bureau may submit for tax refund offset will be valid and
enforceable.
(b) In accordance with the timetable specified by the Commissioner,
the bureau will submit test magnetic media to the IRS, in such form and
containing such data as the IRS shall specify.
(c) The bureau shall establish a toll free telephone number that the
IRS will furnish to individuals whose refunds have been offset to obtain
information from the bureau concerning the offset.
(d) The bureau shall enter into a separate agreement with the IRS to
provide for reimbursement of the Service's cost of administering the
pilot tax refund offset program in 1987.
31 CFR 5.27 Procedures.
(a) The bureau head or his or her designee shall be the point of
contact with the IRS for administrative matters regarding the offset
program.
(b) The bureaus shall ensure that:
(1) Only those past-due legally enforceable debts described in
5.23(b) are forwarded to the IRS for offset; and
(2) The procedures prescribed in the MOU between the bureau and the
IRS are followed in developing past-due debt information and submitting
the debts to the IRS.
(c) The bureau shall submit a notification of a taxpayer's liability
for past-due legally enforceable debt to the IRS on magnetic media as
prescribed by the IRS. Such notification shall contain:
(1) The name and taxpayer identifying number (as defined in section
6109 of the Internal Revenue Code) of the individual who is responsible
for the debt;
(2) The dollar amount of such past-due and legally enforceable debt;
(3) The date on which the original debt became past-due;
(4) The designation of the referring bureau submitting the
notification of liability and identification of the referring agency
program under which the debt was incurred;
(5) A statement accompanying each magnetic tape by the referring
bureau certifying that, with respect to each debt reported on the tape,
all of the requirements of eligibility of the debt for referral for the
refund offset have been satisfied. See 5.23(b).
(d) A bureau shall promptly notify the IRS to correct Treasury data
submitted when the bureau:
(1) Determines that an error has been made with respect to a debt
that has been referred;
(2) Receives or credits a payment on such debt; or
(3) Receives notification that the individual owing the debt has
filed for bankruptcy under Title 11 of the United States Code or has
been adjudicated bankrupt and the debt has been discharged.
(e) When advising debtors of an intent to refer a debt to the IRS for
offset, the bureau shall also advise the debtors of all remedial actions
available to defer or prevent the offset from taking place.
31 CFR 5.28 Referral of debts for offset.
(a) A bureau shall refer to the Service for collection by tax refund
offset, from refunds otherwise payable in calendar year 1987, only such
past-due legally enforceable debts owed to the Department:
(1) That are eligible for offset under the terms of 31 U.S.C. 3720A,
section 6402(d) of the Internal Revenue Code, 26 CFR 301.6402-6T, and
the MOU; and
(2) That information will be provided for each such debt as is
required by the terms of the MOU.
(b) Such referrals shall be made by submitting to the Service a
magnetic tape pursuant to 5.27(c), together with an accompanying
written certification to the Service by the bureau that the conditions
or requirements specified in 26 CFR 301.6402-6T and the MOU have been
satisfied with respect to each debt included in the referral on such
tape. The bureaus certification shall be in the form specified in the
MOU.
31 CFR 5.29 Notice requirements before offset.
(a) The bureau must notify, or make a reasonable attempt to notify,
the individual that:
(1) The debt is past due, and
(2) Unless repaid within 60 days thereafter, the debt will be
referred to the Service for offset against any refund of overpayment of
tax;
(b) The bureau shall provide a toll free telephone number for use in
obtaining information from the bureau concerning the offset.
(c) The bureau shall give the individual debtor at least sixty (60)
days from the date of the notification to present evidence to the bureau
that all or part of the debt is not past-due or legally enforceable.
The bureau shall consider the evidence presented by the individual and
shall make a determination whether an amount of such debt is past-due
and legally enforceable. For purposes of this subsection, evidence that
collection of the debt is affected by a bankruptcy proceeding involving
the individual shall bar referral of the debt to the Service.
(d) Notification given to a debtor pursuant to paragraphs (a), (b)
and (c) of this section shall advise the debtor of how he or she may
present evidence to the bureau that all or part of the debt is not
past-due or legally enforceable. Such evidence may not be referred to,
or considered by, individuals who are not officials, employees, or
agents of the United States in making the determination required under
paragraph (c) of this section. Unless such evidence is directly
considered by an official or employee of the bureau, and the
determination required under paragraph (c) of this section has been made
by an official or employee of the bureau, any unresolved dispute with
the debtor as to whether all or part of the debt is past-due or legally
enforceable must be referred to the bureau for ultimate administrative
disposition, and the bureau must directly notify the debtor of its
determination.
31 CFR 5.29 Subpart D -- Administrative Offset
Authority: 31 U.S.C. 3701; 31 U.S.C. 3711; 31 U.S.C. 3716.
Source: 52 FR 52, Jan. 2, 1987, unless otherwise noted.
31 CFR 5.30 Scope of regulations.
These regulations apply to the collection of debts owed to the United
States arising from transactions with the Department, or where a request
for an offset is received by the Department from another agency. These
regulations are consistent with the Federal Claims Collection Standards
on administrative offset issued jointly by the Department of Justice and
the General Accounting Office as set forth in 4 CFR 102.3.
(52 FR 52, Jan. 2, 1987, as amended at 53 FR 16703, May 11, 1988)
31 CFR 5.31 Designation.
The heads of bureaus and offices and their delegates are designated
as designees of the Secretary of the Treasury authorized to perform all
the duties for which the Secretary is responsible under the foregoing
statutes: Provided, however, That no compromise of a claim shall be
effected or collection action terminated except upon recommendation of
the General Counsel or the appropriate bureau counsel or the designee of
either. Notwithstanding the foregoing proviso, no such recommendation
shall be required with respect to the termination of collection activity
on any claim in which the unpaid amount of the debt is $300 or less.
31 CFR 5.32 Definitions.
(a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means
''withholding money payable by the United States Government to, or held
by the Government for, a person to satisfy a debt the person owes the
Government.
(b) Person includes a natural person or persons, profit or non-profit
corporation, partnership, association, trust, estate, consortium, or
other entity which is capable of owing a debt to the United States
Government except that agencies of the United States, or of any State or
local government shall be excluded.
31 CFR 5.33 General.
(a) The Secretary or his or her designee, after attempting to collect
a debt from a person under section 3(a) of the Federal Claims Collection
Act of 1966, as amended (31 U.S.C. 3711(a)), may collect the debt by
administrative offset subject to the following:
(1) The debt is certain in amount; and
(2) It is in the best interests of the United States to collect the
debt by administrative offset because of the decreased costs of
collection and the acceleration in the payment of the debt;
(b) The Secretary, or his or her designee, may initiate
administrative offset with regard to debts owed by a person to another
agency of the United States Government, upon receipt of a request from
the head of another agency or his or her designee, and a certification
that the debt exists and that the person has been afforded the necessary
due process rights.
(c) The Secretary, or his or her designee, may request another agency
that holds funds payable to a Treasury debtor to offset the debt against
the funds held and will provide certification that:
(1) The debt exists; and
(2) The person has been afforded the necessary due process rights.
(d) If the six-year period for bringing action on a debt provided in
28 U.S.C. 2415 has expired, then administrative offset may be used to
collect the debt only if the costs of bringing such action are likely to
be less than the amount of the debt.
(e) No collection by administrative offset shall be made on any debt
that has been outstanding for more than 10 years unless facts material
to the Government's right to collect the debt were not known, and
reasonably could not have been known, by the official or officials
responsible for discovering and collecting such debt.
(f) These regulations do not apply to:
(1) A case in which administrative offset of the type of debt
involved is explicitly provided for or prohibited by another statute;
or
(2) Debts owed by other agencies of the United States or by any State
or local government.
31 CFR 5.34 Notification procedures.
Before collecting any debt through administrative offset, a notice of
intent to offset shall be sent to the debtor by certified mail, return
receipt requested, at the most current address that is available to the
Department. The notice shall provide:
(a) A description of the nature and amount of the debt and the
intention of the Department to collect the debt through administrative
offset;
(b) An opportunity to inspect and copy the records of the Department
with respect to the debt;
(c) An opportunity for review within the Department of the
determination of the Department with respect to the debt; and
(d) An opportunity to enter into a written agreement for the
repayment of the amount of the debt.
31 CFR 5.35 Agency review.
(a) A debtor may dispute the existence of the debt, the amount of
debt, or the terms of repayment. A request to review a disputed debt
must be submitted to the Treasury official who provided notification
within 30 calendar days of the receipt of the written notice described
in 5.34.
(b) If the debtor requests an opportunity to inspect or copy the
Department's records concerning the disputed claim, 10 business days
will be granted for the review. The time period will be measured from
the time the request for inspection is granted or from the time the copy
of the records is received by the debtor.
(c) Pending the resolution of a dispute by the debtor, transactions
in any of the debtor's account(s) maintained in the Department may be
temporarily suspended. Depending on the type of transaction the
suspension could preclude its payment, removal, or transfer, as well as
prevent the payment of interest or discount due thereon. Should the
dispute be resolved in the debtor's favor, the suspension will be
immediately lifted.
(d) During the review period, interest, penalties, and administrative
costs authorized under the Federal Claims Collection Act of 1966, as
amended, will continue to accrue.
31 CFR 5.36 Written agreement for repayment.
A debtor who admits liability but elects not to have the debt
collected by administrative offset will be afforded an opportunity to
negotiate a written agreement for the repayment of the debt. If the
financial condition of the debtor does not support the ability to pay in
one lump-sum, reasonable installments may be considered. No installment
arrangement will be considered unless the debtor submits a financial
statement, executed under penalty of perjury, reflecting the debtor's
assets, liabilities, income, and expenses. The financial statement must
be submitted within 10 business days of the Department's request for the
statement. At the Department's option, a confess-judgment note or bond
of indemnity with surety may be required for installment agreements.
Notwithstanding the provisions of this section, any reduction or
compromise of a claim will be governed by 4 CFR part 103 and 31 CFR 5.3.
31 CFR 5.37 Administrative offset.
(a) If the debtor does not exercise the right to request a review
within the time specified in 5.35 or if as a result of the review, it
is determined that the debt is due and no written agreement is executed,
then administrative offset shall be ordered in accordance with these
regulations without further notice.
(b) Requests for offset to other Federal agencies. The Secretary or
his or her designee may request that funds due and payable to a debtor
by another Federal agency be administratively offset in order to collect
a debt owed to the Department by that debtor. In requesting
administrative offset, the Department, as creditor, will certify in
writing to the Federal agency holding funds of the debtor:
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That the agency has complied with the requirements of 31 U.S.C.
3716, its own administrative offset regulations and the applicable
provisions of 4 CFR part 102 with respect to providing the debtor with
due process.
(c) Requests for offset from other Federal agencies. Any Federal
agency may request that funds due and payable to its debtor by the
Department be administratively offset in order to collect a debt owed to
such Federal agency by the debtor. The Department shall initiate the
requested offset only upon:
(1) Receipt of written certification from the creditor agency:
(i) That the debtor owes the debt;
(ii) The amount and basis of the debt;
(iii) That the agency has prescribed regulations for the exercise of
administrative offset; and
(iv) That the agency has complied with its own administrative offset
regulations and with the applicable provisions of 4 CFR part 102,
including providing any required hearing or review.
(2) A determination by the Department that collection by offset
against funds payable by the Department would be in the best interest of
the United States as determined by the facts and circumstances of the
particular case, and that such offset would not otherwise be contrary to
law.
31 CFR 5.38 Jeopardy procedure.
The Department may effect an administrative offset against a payment
to be made to the debtor prior to the completion of the procedures
required by 5.34 and 5.34 of this part if failure to take the offset
would substantially jeopardize the Department's ability to collect the
debt, and the time before the payment is to be made does not reasonably
permit the completion of those procedures. Such prior offset shall be
promptly followed by the completion of those procedures. Amounts
recovered by offset but later found not to be owed to the Department
shall be promptly refunded.
31 CFR 5.38 PART 6 -- APPLICATIONS FOR AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT
31 CFR 5.38 Subpart A -- General Provisions
Sec.
6.1 Purpose of these rules.
6.2 When the Act applies.
6.3 Proceedings covered.
6.4 Eligibility of applicants.
6.5 Standards for awards.
6.6 Allowable fees and expenses.
6.7 Delegations of authority.
31 CFR 5.38 Subpart B -- Information Required From Applicants
6.8 Contents of application.
6.9 Net worth exhibit.
6.10 Documentation of fees and expenses.
6.11 When an application may be filed.
31 CFR 5.38 Subpart C -- Procedures for Considering Applications
6.12 Filing and service of documents.
6.13 Answer to application.
6.14 Decision.
6.15 Agency review.
6.16 Judicial review.
6.17 Payment of award.
Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C.
504(c)(1)).
Source: 47 FR 20765, May 14, 1982, unless otherwise noted.
31 CFR 5.38 Subpart A -- General Provisions
31 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
agencies of the Government of the United States. An eligible party may
receive an award when it prevails over an agency, 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 the Treasury Department will use to make them.
31 CFR 6.2 When the Act applies.
The Act applies to any adversary adjudication pending before an
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, regardless of when they were initiated or when final
agency action occurs.
31 CFR 6.3 Proceedings covered.
The Act applies to adversary adjudications required to be conducted
by the Treasury Department under 5 U.S.C. 554. Within the Treasury
Department, these proceedings are:
(a) Bureau of Alcohol, Tobacco and Firearms: (1) Permit proceedings
under the Federal Alcohol Administration Act (27 U.S.C. 204); (2)
Permit proceedings under the Internal Revenue Code of 1954 (26 U.S.C.
5171, 5271, 5713); (3) License and permit proceedings under the Federal
Explosives Laws (18 U.S.C. 843).
(b) Comptroller of the Currency:
All proceedings conducted under 12 CFR part 19, subpart A.
31 CFR 6.4 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award. The term ''party'' is defined
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions
of eligibility set out in this subpart and has complied with the
requirements in Subpart B of this part.
(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 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. 1141(a)) with not more than 500
employees, or
(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 initiated.
(d) An applicant who owns an unincorporated business will be
considered as an ''individual'' rather than a ''sole owner of an
unincorporated business'' if the matter in controversy is primarily
related to personal interests rather than to business interests.
(e) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be
included.
(f) The net worth and number of employees of the applicant and all of
its affiliates shall be aggregated to determine eligibility. Any
individual or group of individuals, corporation or other entity that
directly or indirectly controls or owns a majority of the voting shares
of another business, or controls in any manner the election of a
majority of that business's board of directors, trustees, or other
persons exercising similar functions, will be considered an affiliate of
that business for purposes of this part, unless the adjudicative officer
determines that such treatment would be unjust and contrary to the
purposes of the Act in light of the actual relationship between the
afffiliated entities. In addition, the adjudicative officer may
determine that financial relationships of the applicant other than those
described in this paragraph constitute special circumstances that would
make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
31 CFR 6.5 Standards for awards.
(a) A prevailing applicant may receive an award for fees and expenses
incurred in connection with the final disposition of a proceeding,
unless (1) the position of the agency was substantially justified, or
(2) special circumstances make the award unjust. 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 or if special circumstances make
the award sought unjust.
31 CFR 6.6 Allowable fees and other expenses.
(a) The following fees and other expenses are allowable under the
Act:
(1) Reasonable expenses of expert witnesses;
(2) Reasonable cost of any study, analysis, engineering report, test,
or project which the agency finds necessary for the preparation of the
party's case;
(3) Reasonable attorney or agent fees.
(b) The amount of fees awarded will be based upon the prevailing
market rates for the kind and quality of services furnished, except that
(1) Compensation for an expert witness will not exceed the highest
rate paid by the agency for expert witnesses; and
(2) Attorney or agent fees will not be in excess of $75 per hour.
31 CFR 6.7 Delegations of authority.
The Director, Bureau of Alcohol, Tobacco and Firearms and the
Comptroller of the Currency are authorized to take final action on
matters pertaining to the Equal Access to Justice Act, 5 U.S.C. 504, in
proceedings listed in 6.3 under the respective bureau or office. The
Secretary of the Treasury may by order delegate authority to take final
action on matters pertaining to the Equal Access to Justice Act in
particular cases to other subordinate officials.
31 CFR 6.7 Subpart B -- Information Required From Applicants
31 CFR 6.8 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of the agency in the proceeding that the applicant
alleges was not substantially justified. The application shall state
the basis for the applicant's belief that the position was not
substantially justified. Unless the applicant is an individual, the
application shall also state the number of employees of the applicant
and describe briefly the type and purpose of its organization or
business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $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. 1141j(a)).
(c) The application shall itemize the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes the 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 with respect to the eligibility of the applicant and by the
attorney of the applicant with respect to fees and expenses sought. 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.
(Approved by the Office of Management and Budget under control number
1512-0444, for applications filed with the Bureau of Alcohol, Tobacco
and Firearms)
(5 U.S.C. 552(a) (80 Stat. 383, as amended))
(47 FR 20765, May 14, 1982, as amended at 49 FR 14944, Apr. 16, 1984)
31 CFR 6.9 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 6.4(f)) when the proceeding was initiated. In the case of
national banking associations, ''net worth'' shall be considered to be
the total capital and surplus as reported, in conformity with the
applicable instructions and guidelines, on the bank's last Consolidated
Report of Condition filed before the initiation of the underlying
proceeding.
(b) The exhibit may be in any form convenient to the applicant that
provides full disclosure of the applicant's and its affiliates assets
and liabilities and is sufficient to determine whether the applicant
qualifies under the standards in this part. The adjudicative officer
may require an applicant to file additional information to determine its
eligibility for an award.
31 CFR 6.10 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, engineering report,
test, or project, 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 not 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 adjudicative officer may require the applicant to provide
vouchers, receipts, or other substantiation for any expenses claimed.
31 CFR 6.11 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding but in no case later than 30 days after the agency's
final disposition of the proceeding.
(b) If review or reconsideration is sought or taken of a decision as
to which an appplicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
31 CFR 6.11 Subpart C -- Procedures for Considering Applications
31 CFR 6.12 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.
31 CFR 6.13 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought shall file an
answer to the application.
(b) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 60 days and
further extensions may be granted by the adjudicative officer upon
request by agency counsel and the applicant.
(c) The answer shall explain any objections to the award requested
and identify the facts relied on in support of agency counsel's
position. If the answer is based on any alleged facts not already in
the record of the proceeding, agency counsel shall include with the
answer supporting affidavits.
31 CFR 6.14 Decision.
The adjudicative officer shall issue an initial decision on the
application within 60 days after completion of proceedings on the
application. The decision shall include written findings and
conclusions on the applicant's eligibility and status as a prevailing
party, and an explanation of the reasons for any difference between the
amount requested and the amount awarded. The decision shall also
include, if at issue, findings on whether the agency's position was
substantially justified, whether the applicant unduly protracted the
proceedings, or whether special circumstances make an award unjust.
31 CFR 6.15 Agency review.
Either the applicant or agency counsel may seek review of the initial
decision on the fee application, or the agency may decide to review the
decision on its own initiative. If neither the applicant nor agency
counsel seeks a review and the agncy does not take review on its own
initiative, the initial decision on the application shall become a final
decision of the agency 30 days after it is issued. Whether to review a
decision is a matter within the discretion of the agency. If review is
taken, the agency will issue a final decision on the application or
remand the application to the adjudicative officer for further
proceedings.
31 CFR 6.16 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
31 CFR 6.17 Payment of award.
An applicant seeking payment of an award shall submit to the agency a
copy of the agency's final decision granting the award, accompanied by a
statement that the applicant will not seek review of the decision in the
United States courts. An applicant shall be paid the amount awarded
unless judicial review of the award or of the underlying decision of the
adversary adjudication has been sought by the applicant or any other
party to the proceeding.
31 CFR 6.17 PART 7 -- EMPLOYEE INVENTIONS
Sec.
7.1 Purpose.
7.2 Responsibilities of the Department.
7.3 Responsibilities of heads of offices.
7.4 Responsibilities of the General Counsel.
7.5 Responsibilities of employees.
7.6 Effect of awards.
7.7 Appeals.
7.8 Delegation.
Authority: 80 Stat. 379; 5 U.S.C. 301, sec. 6, E.O. 10096; 3
CFR, 1949-1953 Comp., p. 292, as amended by E.O. 10930; 3 CFR,
1959-1963 Comp., p. 456.
Source: 33 FR 10088, July 13, 1968, unless otherwise noted.
31 CFR 7.1 Purpose.
Provisions defining the right, title, and interest of the Government
in and to an invention made by a Government employee under various
circumstances and the duties of Government agencies with respect thereto
are set forth in Executive Order 10096, 15 FR 389, as amended (35 U.S.C.
266 note). Further definition of the circumstances under which the
Government will acquire the right to a patent in such an invention or a
nonexclusive, irrevocable, royalty-free license in the invention, and
the procedures for the determination of these interests, are set forth
in the regulations issued under that Executive order by the Patent
Office, 37 CFR part 100. The purpose of this part 7 is to implement for
the Treasury Department the foregoing Executive order and regulations of
the Patent Office by (a) bringing to the attention of Treasury employees
the law and procedure governing their rights to, and interest in,
inventions made by them, (b) defining responsibility within the
Department for making the necessary determinations, and, (c)
establishing internal procedures for action in conformity with the
Executive order and the Patent Office regulations.
31 CFR 7.2 Responsibilities of the Department.
The responsibilities of the Treasury Department are to determine
initially (a) the occurrence of an invention by an employee, (b) his
rights in the invention and the rights of the Government therein, and
(c) whether patent protection will be sought in the United States by the
Department, and to furnish the required reports to the Patent Office.
31 CFR 7.3 Responsibilities of heads of offices.
(a) Heads of bureaus or offices in the Department shall be
responsible for determining initially whether the results of research,
development, or other activity of an employee within that bureau or
office constitute an invention which falls within the purview of
Executive Order 10096, as amended, and is to be handled in accordance
with the regulations in this part.
(b) Heads of bureaus or offices are responsible for obtaining from
the employee the necessary information and, if the determination under
paragraph (a) of this section is affirmative, preparing on behalf of the
bureau or office a description of the invention and its relationship to
the employee's duties and work assignments.
(c) Heads of bureaus or offices, after such examination and
investigation as may be necessary, shall refer to the General Counsel
all information obtained concerning the invention and such determination
as the head of the bureau or office has made with respect to the
character of the activity as an invention. These reports shall include
any determination as to the giving of a cash award to the employee for
his performance relating to that invention.
31 CFR 7.4 Responsibilities of the General Counsel.
(a) The General Counsel shall be responsible for determining, subject
to review by the Commissioner of Patents, the respective rights of the
Government and of the inventor in and to any invention made by an
employee of the Department.
(b) On the basis of the foregoing determination, the General Counsel
shall determine whether patent protection will be sought by the
Department for such an invention.
(c) The General Counsel will prepare and furnish to the Patent Office
the reports required by the regulations of that Office and will serve as
the liaison officer between the Department and the Commissioner of
Patents.
31 CFR 7.5 Responsibilities of employees.
All employees are required to report to the heads of their bureaus or
offices any result of research, development, or other activity on their
part which may constitute an invention and the circumstances under which
this possible invention came into being.
31 CFR 7.6 Effect of awards.
The acceptance by an employee of a cash award for performance which
constitutes an invention shall, in accordance with 5 U.S.C. 4502(c),
constitute an agreement that the use by the Government of the idea,
method, or device for which the award is made does not form the basis of
any further claim against the Government by the employee, his heirs or
assigns.
31 CFR 7.7 Appeals.
(a) Any employee who is aggrieved by a determination made by the head
of his bureau or office under this part may obtain a review of the
determination by filing an appeal with the General Counsel within 30
days after receiving the notice of the determination complained of.
(b) Any employee who is aggrieved by a determination made by the
General Counsel under this part may obtain a review of the determination
by filing a written appeal with the Commissioner of Patents within 30
days after receiving notice of the determination complained of, or
within such longer period as the Commissioner may provide. The appeal
to the Commissioner shall be processed in accordance with the provisions
in the regulations of the Patent Office for an appeal from an agency
determination.
31 CFR 7.8 Delegation.
The heads of bureaus or offices and the General Counsel may delegate,
as appropriate, the performance of the responsibilities assigned to them
under this part.
31 CFR 7.8 PART 8 -- PRACTICE BEFORE THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
31 CFR 7.8 Subpart A -- General Requirements
Sec.
8.1 Scope.
8.2 Persons who may practice.
8.3 Conference and practice requirements.
8.4 Director of Practice.
8.5 Records.
8.6 Special orders.
31 CFR 7.8 Subpart B -- Definitions
8.11 Meaning of terms.
31 CFR 7.8 Subpart C -- Enrollment Procedures
8.21 Eligibility for enrollment.
8.22 Application for enrollment.
8.23 Denial of enrollment; appeal.
8.24 Enrollment cards.
8.25 Renewal of enrollment card.
8.26 Change in enrollment.
8.27 Enrollment registers.
8.28 Termination of enrollment.
8.29 Limited practice without enrollment.
31 CFR 7.8 Subpart D -- Duties and Restrictions Relating to Practice
8.31 Furnishing of information.
8.32 Prompt disposition of pending matters.
8.33 Accuracy.
8.34 Knowledge of client's omission.
8.35 Assistance from disbarred or suspended persons and former
Treasury employees.
8.36 Practice by partners of Government employees.
8.37 Practice by former Government employees.
8.38 Notaries.
8.39 Fees.
8.40 Conflicting interests.
8.41 Solicitation.
8.42 Practice of law.
31 CFR 7.8 Subpart E -- Disciplinary Proceedings
8.51 Authority to disbar or suspend.
8.52 Disreputable conduct.
8.53 Initiation of disciplinary proceedings.
8.54 Conferences.
8.55 Contents of complaint.
8.56 Service of complaint and other papers.
8.57 Answer.
8.58 Supplemental charges.
8.59 Proof; variance; amendment of pleadings.
8.60 Motions and requests.
8.61 Representation.
8.62 Administrative Law Judge.
8.63 Hearings.
8.64 Evidence.
8.65 Depositions.
8.66 Transcript.
8.67 Proposed findings and conclusions.
8.68 Decision of Administrative Law Judge.
8.69 Appeal to the Secretary.
8.70 Decision of the Secretary.
8.71 Effect of disbarment or suspension.
8.72 Petition for reinstatement.
Authority: Sec. 3, 23 Stat. 258 (31 U.S.C. 1026); 5 U.S.C. 301,
500, 551-559; and Reorganization Plan No. 26 of 1950, 15 FR 4935, 64
Stat. 1280, as amended.
Source: 42 FR 33026, June 29, 1977, unless otherwise noted.
31 CFR 7.8 Subpart A -- General Requirements
31 CFR 8.1 Scope.
This part contains rules governing the recognition of attorneys,
certified public accountants, enrolled practitioners, and other persons
representing clients before the Bureau of Alcohol, Tobacco and Firearms.
31 CFR 8.2 Persons who may practice.
(a) Attorneys. Any attorney who is not currently under suspension or
disbarment from practice before the Bureau of Alcohol, Tobacco and
Firearms, may practice before the Bureau upon filing a written
declaration with the Bureau, that he or she is currently qualified as an
attorney and is authorized to represent the particular party on whose
behalf he or she acts.
(b) Certified public accountants. Any certified public accountant
who is not currently under suspension or disbarment before the Bureau of
Alcohol, Tobacco and Firearms, may practice before the Bureau upon
filing a written declaration with the Bureau, that he or she is
currently qualified as a certified public accountant and is authorized
to represent the particular party on whose behalf he or she acts.
(c) Enrollment practitioners. Any person enrolled as a practitioner
under the provisions of subpart C of this part and who is not under
suspension or disbarment from enrollment may practice before the Bureau.
(d) Limited practitioners. Any person qualified for limited practice
without enrollment under the provisions of 8.29 may practice before the
Bureau.
(e) Restrictions on Government officers and employees. Any officer
or employee of the United States in the executive, legislative, or
judicial branch of the Government, or in any agency of the United
States, including the District of Columbia, who is otherwise eligible to
practice under the provisions of this part, may represent parties before
the Bureau when doing so in the conduct of his or her official duties.
A Government officer or employee may not otherwise practice before the
Bureau except that, subject to the requirements of 18 U.S.C. 205, he or
she may represent a member of his or her immediate family or a person or
estate for which he or she serves as guardian, executor, administrator,
trustee or other personal fiduciary. Member of Congress or Resident
Commissioners (elect or serving) may not practice before the Bureau in
connection with any matter for which they directly or indirectly seek
any compensation.
(f) Restrictions on State officers and employees. No officer or
employee of any State, or subdivision thereof, whose official
responsibilities require him or her to pass upon, investigate, or deal
with any State law or regulation concerning alcohol, tobacco, firearms,
explosives matters or wagering, may practice before the Bureau if his or
her official responsibility may disclose pertinent facts or information
relating to matters administered by the Bureau.
(g) Customhouse brokers. Customhouse brokers, licensed by the
Commissioner of Customs according to 19 CFR part 111, may represent a
party for whom they have acted as a customhouse broker before the Bureau
with respect to matters relating to the importation or exportation of
merchandise under customs or intenal revenue laws.
(Approved by the Office of Management and Budget under control number
1512-0418)
(18 U.S.C. 203, 205; 5 U.S.C. 552(a) (80 Stat. 383, as amended))
(42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16,
1984)
31 CFR 8.3 Conference and practice requirements.
Conference and practice requrements of the Bureau of Alcohol, Tobacco
and Firearms, including requirements for powers of attorney are set
forth in:
(a) 26 CFR part 601, subpart E (or those regulations as recodified in
27 CFR part 71 subsequent to the effective date of these regulations, 31
CFR part 8) with respect to all representations before the Bureau except
those concerning license or permit proceedings;
(b) 27 CFR part 200 with respect to proceedings concerning permits
issued under the Federal Alcohol Administration Act or the Internal
Revenue Code;
(c) 27 CFR 47.44 with respect to proceedings concerning licenses
issued under the Arms Export Control Act (22 U.S.C. 2778);
(d) 27 CFR part 178, subpart E, with respect to proceedings
concerning licenses issued under the Gun Control Act of 1968 (18 U.S.C.
Chapter 44); and
(e) 27 CFR part 181, subpart E, with respect to proceedings
concerning licenses or permits issued under the Organized Crime Control
Act of 1970 (18 U.S.C. Chapter 40).
31 CFR 8.4 Director of Practice.
(a) Appointment. The Secretary shall appoint the Director of
Practice. In the event of the absence of the Director of Practice or a
vacancy in that office, the Secretary shall designate an officer or
employee of the Treasury Department to act as Director of Practice.
(b) Duties. The Director of Practice, Office of the Secretary of the
Treasury, shall: Act upon appeals from decisions of the Director
denying applications for enrollment to practice before the Bureau;
institute and provide for the conduct of disciplinary proceedings
relating to attorneys, certified public accountants, and enrolled
practitioners; make inquiries with respect to matters under his or her
jurisdiction; and perform other duties as are necessary or appropriate
to carry out his or her functions under this part or as are prescribed
by the Secretary.
31 CFR 8.5 Records.
(a) Availability. Registers of all persons admitted to practice
before the Bureau, and of all persons disbarred or suspended from
practice, which are required to be maintained by the director under the
provisions of 8.27, will be available for public inspection at the
Office of the Director. Other records may be disclosed upon specific
request in accordance with the disclosure regulations of the Bureau (27
CFR part 71) and the Office of the Secretary.
(b) Disciplinary proceedings. The Director, may grant a request by
an attorney, certified public accountant, or enrolled practitioner to
make public a hearing in a disciplinary proceeding, conducted under the
provisions of subpart E of this part concerning the attorney, certified
public accountant or enrolled practioner, and to make the record of the
proceeding available for public inspection by interested persons, if an
agreement is reached by stipulation in advance to prevent disclosure of
any information which is confidential, in accordance with applicable
laws and regulations.
31 CFR 8.6 Special orders.
The secretary reserves the power to issue special orders as he or she
may deem proper in any cases within the scope of this part.
31 CFR 8.6 Subpart B -- Definitions
31 CFR 8.11 Meaning of terms.
As used in this part, terms shall have the meaning given in this
section. Words in the plural shall include the singular, and vice
versa. The terms ''include'' and ''including'' do not exclude things
not enumerated which are in the same general class.
Administrative Law Judge. The person appointed pursuant to 5 U.S.C.
3105, designated to preside over any administrative proceedings under
this part.
Attorney. A person who is a member in good standing of the bar of the
highest court of any State, possession, territory, Commonwealth, or the
District of Columbia.
Bureau. The Bureau of Alcohol, Tobacco and Firearms, the Department
of the Treasury, Washington, DC 20226.
Certified public accountant. Any person who is qualified to practice
as a certified public accountant in any State, possession, territory,
Commonwealth, or the District of Columbia.
CFR. The Code of Federal Regulations.
Director. The Director, Bureau of Alcohol, Tobacco and Firearms, the
Department of the Treasury, Washington, DC.
Enrolled practitioner. Any person enrolled to practice before the
Bureau of Alcohol, Tobacco and Firearms pursuant to Subpart C of this
part.
Practice before the Bureau. This comprehends all matters connected
with presentation to the Bureau or any of its officers or employees
relating to a client's rights, privileges or liabilities under laws or
regulations administered by the Bureau. Presentations include the
preparation and filing of necessary documents, correspondence with and
communications to the Bureau, and the representation of a client at
conferences, hearings, and meetings. Preparation of a tax return,
appearance of an individual as a witness for any party, or furnishing
information at the request of the Bureau of any of its officers or
employees is not considered practice before the Bureau.
Secretary. The Secretary of the Treasury.
U.S.C. The United States Code.
31 CFR 8.11 Subpart C -- Enrollment Procedures
31 CFR 8.21 Eligibility for enrollment.
(a) General qualifications. The Director may grant enrollment to
practice to any person who has not engaged in conduct which would
justify the disbarment or suspension of any attorney, certified public
accountant, or enrolled practioner. Each person shall demonstrate to
the satisfaction of the Director that he or she possesses the necessary
technical qualifications to enable him or her to render valuable service
before the Bureau, and that he or she is otherwise competent to advise
and assists in the presentation of matters before the Bureau.
(b) Technical qualifications. The Director may grant enrollment to
practice only to persons possessing technical knowledge of the laws and
regulations administered by the Bureau.
(1) Minimum criteria required of an enrolled practioner will consist
of: 5 years employment with the Treasury Department in a responsible
position which would familiarize the person with applicable laws and
regualtions; or 5 years employment in a regulated industry in a
responsible position which would familiarize the person with applicable
laws and regulations; or possession of a law degree; or other
significant experience such as the prior respresentation of persons
before the Internal Revenue Service or the Bureau of Alcohol, Tobacco
and Firearms.
(2) An enrolled paractioner may demonstrate technical knowledge in
one or more of the several areas of laws and regulations administered by
the Bureau (alcohol, tobacco firearms, or explosives matters).
(c) Natural persons. Enrollment to practice may only be granted to
natural persons who have become 18 years of age.
(d) Attorneys, certified public accountants. Enrollment if not
available to persons who are attorneys or certified public accountants
who qualify to practice without enrollment under 8.2 (a) or (b).
(42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977)
31 CFR 8.22 Application for enrollment.
(a) Information to be furnished. An applicant for enrollment to
practice shall state his or her name, address, and business address,
citizenship, and age on the application. The applicant shall also state
if he or she has ever been suspended or disbarred as an attorney or
certified public accountant, or if the applicant's right to practice has
ever been revoked by any court, commission, or administrative agency in
any jurisdiction. The applicant shall set forth his or her technical
qualifications as required by 8.21(b) which enable him or her to render
valuable service before the Bureau. The applicant shall indicate which
area or areas of Bureau matters in which he or she desires to practice
(alcohol, tobacco, firearms, or explosives matters).
(b) Fee. Each application for enrollment will be accompanied by a
check or money order in the amount of $25, payable to the Bureau of
Alcohol, Tobacco and Firearms. This fee will be retained by the United
States whether or not the applicant is granted enrollment. Agents who
are enrolled to practice before the Internal Revenue Service prior to
September 27, 1977, need not include this fee and should indicate their
enrollment number on the application.
(c) Execution under oath. All applications for enrollment will be
executed under oath or affirmation.
(d) Filing. Applications for enrollment will be filed with the
Assistant Director, Regulatory Enforcement, Bureau of Alcohol, Tobacco
and Firearms, 1200 Pensylvania Avenue NW., Washington, DC 20226.
(e) Additional information. The Director, as a condition to
consideration for enrollment, may require the applicant to file
additional information as necessary to determine if the applicant is
qualified. The Director shall, upon written request, afford an
applicant the opportunity to be heard with respect to his or her
application for enrollment.
(Approved by the Office of Management and Budget under control number
1512-0418)
(Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a); 5 U.S.C.
552(a) (80 Stat. 383, as amended))
(42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977, as amended
at 49 FR 14944, Apr. 16, 1984)
31 CFR 8.23 Denial of enrollment; appeal.
(a) The Director, in denying an application for enrollment, shall
inform the applicant as to the reasons. The applicant may, within 30
days after receipt of the notice of denial, file a written appeal
together with reasons in support thereof, with the Director of Practice.
The Director of Practice shall render a decision on the appeal as soon
as practicable.
(b) An applicant may, within 30 days after receipt of the decision of
the Director of Practice in sustaining a denial of enrollment, appeal
the decision to the Secretary.
31 CFR 8.24 Enrollment cards.
The Director shall issue an enrollment card to each practitioner who
is enrolled to practice before the Bureau. Each enrollment card is
valid for a period of 5 years as long as the holder remains enrolled and
in good standing before the Bureau. Unless advised to the contrary by
the Director, any officer or employee of the Bureau may consider the
holder of an unexpired enrollment card to be authorized to practice
before the Bureau in the subject area or areas indicated upon the card
(alcohol, tobacco, firearms, or explosives matters).
31 CFR 8.25 Renewal of enrollment card.
(a) Period of renewal. An enrolled practitioner may apply for
renewal of his or her enrollment card during a 12-month period prior to
the expiration of the enrollment card.
(b) Application. Each enrolled practitioner applying for a renewal
of enrollment shall apply to the Director. The enrolled practitioner
shall include in the application all information required by 8.22
except information relating to technical qualifications unless the
enrolled practitioner is applying for enrollment in a subject area or
areas in which he or she was not previously qualified to practice.
(c) Fee. Each application for renewal of enrollment will be
accompanied by a check or money order in the amount of $5, payable to
the Bureau of Alcohol, Tobacco and Firearms.
(Approved by the Office of Management and Budget under control number
1512-0418)
(5 U.S.C. 552(a) (80 Stat. 383, as amended))
(42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16,
1984)
31 CFR 8.26 Change in enrollment.
(a) Change in area of practice. At any time during a period of
enrollment, an enrolled practitioner may apply to practice in a subject
area or areas in which he or she was not previously qualified to
practice (alcohol, tobacco, firearms, or explosives matters).
(b) Application. Each enrolled practitioner applying for a change in
enrollment shall apply to the Director. The enrolled practitioner shall
include in the application all information required by 8.22 but shall
include information relating to technical qualifications only in those
additional subject areas in which he or she is applying to practice.
(c) Fee. Each application for change in enrollment will be
accompanied by a check or money order in the amount of $5, payable to
the Bureau of Alcohol, Tobacco and Firearms.
(Approved by the Office of Management and Budget under control number
1512-0418)
(5 U.S.C. 552(a) (80 Stat. 383, as amended))
(42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16,
1984)
31 CFR 8.27 Enrollment registers.
The Director shall maintain, for public inspection, a register of all
persons enrolled to practice before the Bureau and the subject areas in
which each person is enrolled to practice, a register of all persons
disbarred or suspended from practice, and a register of all persons
whose applications for enrollment before the Bureau have been denied.
31 CFR 8.28 Termination of enrollment.
(a) Attorneys, certified public accountants. The enrollment of a
practitioner to whom an enrollment card has been issued will terminate
when that person becomes eligible to practice without enrollment under
8.2 (a) or (b), and that person shall surrender his or her enrollment
card to the Director for cancellation.
(b) Expiration of enrollment. The enrollment of any person will
automatically terminate after the date indicated on the enrollment card
unless, during the 12-month period prior to the expiration date, that
person applies for renewal of enrollment with the Director as provided
in 8.25. In this case, the person may continue to practice before the
Bureau until his or her application has been finally determined.
31 CFR 8.29 Limited practice without enrollment.
(a) General. Individuals may appear on their own behalf and may
otherwise appear without enrollment, providing they present satisfactory
identification, in the following classes of cases:
(1) An individual may represent another individual who is his or her
regular full-time employer, may represent a partnership of which he or
she is a member or a regular full-time employee, of may represent
without compensation a member of his or her immediate family.
(2) Corporations (including parent corporations, subsidiaries or
affiliated corporations), trusts, estates, associations, or organized
groups may be represented by bona fide officers or regular full-time
employees.
(3) Trusts, receiverships, guardianships, or estates may be
represented by their trustees, receivers, guardians, administrators,
executors, or their regular full-time employees.
(4) Any government unit, agency, or authority may be represented by
an officer or regular employee in the course of his or her official
duties.
(5) Unenrolled persons may participate in rulemaking as provided in 5
U.S.C. 553.
(b) Special appearances. The Director, subject to conditions he or
she deems appropriate, may authorize any person to represent a party
without enrollment, for the purpose of a particular matter.
31 CFR 8.29 Subpart D -- Duties and Restrictions Relating to Practice
31 CFR 8.31 Furnishing of information.
(a) To the Bureau. No attorney, certified public accountant, or
enrolled practitioner may neglect or refuse promptly to submit records
or information in any matter before the Bureau, upon proper and lawful
request by an authorized officer or employee of the Bureau, or may
interfere, or attempt to interfere, with any proper and lawful effort by
the Bureau or its officers or employees, to obtain the requested record
or information, unless he or she believes in good faith and on
reasonable grounds that the record or information is privileged or that
the request for, or effort to obtain, that record or information is of
doubtful legality.
(b) To the Director of Practice. It is the duty of an attorney or
certified public accountant, who practices before the Bureau, or
enrolled practitioner when requested by the Director of Practice, to
provide the Director of Practice with any information he or she may have
concerning violation of the regulations in this part by any person, and
to testify thereto in any proceeding instituted under this part for the
disbarment or suspension of an attorney, certified public accountant, or
enrolled practitioner, unless he or she believes in good faith and on
reasonable grounds that that information is privileged or that the
request is of doubtful legality.
31 CFR 8.32 Prompt disposition of pending matters.
No attorney, certified public accountant, or enrolled practitioner
may unreasonably delay the prompt disposition of any matter before the
Bureau.
31 CFR 8.33 Accuracy.
Each attorney, certified public accountant, and enrolled practitioner
shall exercise due diligence in:
(a) Preparing or assisting in the preparation of, approving, and
filing returns, documents, affidavits, and other papers relating to
Bureau matters;
(b) Determining the correctness of any representations made by him or
her to the Bureau; and
(c) Determining the correctness of any information which he or she
imparts to a client with reference to any matter administered by the
Bureau.
31 CFR 8.34 Knowledge of client's omission.
Each attorney, certified public accountant, or enrolled practitioner
who knows that a client has not complied with applicable law, or has
made an error in or omission from any document, affidavit, or other
paper which the law requires the client to execute, shall advise the
client promptly of the fact of such noncompliance, error, or omission.
31 CFR 8.35 Assistance from disbarred or suspended persons and former
Treasury employees.
No attorney, certified public accountant or enrolled practitioner
shall, in practice before the Bureau, knowingly and directly or
indirectly:
(a) Employ or accept assistance from any person who is under
disbarment or suspension from practice before any agency of the Treasury
Department;
(b) Accept employment as associate, correspondent, or subagent from,
or share fees with, any such person;
(c) Accept assistance in a specific matter from any person who
participated personally and substantially in the matter as an employee
of the Treasury Department.
(44 FR 47059, Aug. 10, 1979)
31 CFR 8.36 Practice by partners of Government employees.
No partner of an officer or employee of the executive branch of the
U.S. Government, of any independent agency of the United States, or of
the District of Columbia, may represent anyone in any matter
administered by the Bureau in which the Government employee participates
or has participated personally and substantially as a Government
employee, or which is the subject of that employee's official
responsibility.
31 CFR 8.37 Practice by former Government employees.
(a) Violation of law. No former officer or employee of the U.S.
Government, of any independent agency of the United States, or of the
District of Columbia, may represent anyone in any matter administered by
the Bureau if the representation would violate any of the laws of the
United States.
(b) Personal and substantial participation. No former officer or
employee of the executive branch of the U.S. Goverment, of any
independent agency of the United States, or of the District of Columbia,
may represent anyone with repect to any matter under the administration
of the Bureau, if he or she participated personally and substantially in
that matter a a Government employee.
(c) Official responsibility. No former officer or employee of the
executive branch of the U.S. Government, of any indepenednt agency of
the United States, or of the District of Columbia, may within one year
after his or her employment has ceased, appear personally as a
practitioner before the Bureau with respect to any matter administered
by the Bureau if that representation involves a specific matter under
the former employee's official responsibility as a Government employee,
within a one-year period prior to the termination of that
responsibility.
(d) Aid or assistance. No former officer or employee of the Bureau,
who is eligible to practice before the Bureau, may aid or assist any
person in the representation of a specific matter in which the former
officer or employee participated personally and substantially as an
officer or employee of the Bureau.
(18 U.S.C. 207)
31 CFR 8.38 Notaries.
No attorney, certified public accountant, or enrolled practitioner
may, with respect to any matter administered by the Bureau, take
acknowledgements, administer oaths, certify papers, or perform any
official act in connection with matters in which he or she is employed
as counsel, attorney, or practioner, or in which he or she may be in any
way interested before the Bureau.
(26 Op. Atty. Gen. 236)
31 CFR 8.39 Fees.
No attorney, certified public accountant, or enrolled practitioner
may charge an unconscionable fee for representing a client in any matter
before the Bureau.
31 CFR 8.40 Conflicting interests.
No attorney, certified public accountant, or enrolled practitioner
may represent conflicting interests in practice before the Bureau,
except by express consent of all directly interested parties after full
disclosure has been made.
31 CFR 8.41 Solicitation.
(a) Advertising and solicitation restrictions. (1) No attorney,
certified public accountant or enrolled practitioner shall, with respect
to any Bureau matter, in any way use or participate in the use of any
form of public communication containing a false, fraudulent, misleading,
deceptive, unduly influencing, coercive or unfair statement or claim.
For the purposes of this subsection, the prohibition includes, but is
not limited to, statements pertaining to the quality of services
rendered unless subject to factual verification, claims of specialized
expertise not authorized by State or Federal agencies having
jurisdiction over the practitioner, and statements or suggestions that
the ingenuity and/or prior record of a representative rather than the
merit of the matter are principal factors likely to determine the result
of the matter.
(2) No attorney, certified public accountant or enrolled practitioner
shall make, directly or indirectly, an uninvited solicitation of
employment, in matters related to the Bureau. Solicitation includes,
but is not limited to, in-person contacts, telephone communications, and
personal mailings directed to the specific circumstances unique to the
recipient. This restriction does not apply to: (i) Seeking new
business from an existing or former client in a related matter; (ii)
solicitation by mailings, the contents of which are designed for the
general public; or (iii) non-coercive in-person solicitation by those
eligible to practice before the Bureau while acting as an employee,
member, or officer of an exempt organization listed in sections 501(c)
(3) or (4) of the Internal Revenue Code of 1954 (26 U.S.C.).
(b) Permissible advertising. (1) Attorneys, certified public
accountants and enrolled practitioners may publish, broadcast, or use in
a dignified manner through any means of communication set forth in
paragraph (d) of this section:
(i) The name, address, telephone number, and office hours of the
practitioner or firm.
(ii) The names of individuals associated with the firm.
(iii) A factual description of the services offered.
(iv) Acceptable credit cards and other credit arrangements.
(v) Foreign language ability.
(vi) Membership in pertinent, professional organizations.
(vii) Pertinent professional licenses.
(viii) A statement that an individual's or firm's practice is limited
to certain areas.
(ix) In the case of an enrolled practitioner, the phrase ''enrolled
to practice before the Bureau of Alcohol, Tobacco and Firearms.''
(x) Other facts relevant to the selection of a practitioner in
matters related to the Bureau which are not prohibited by these
regulations.
(2) Attorneys, certified public accountants and enrolled
practitioners may use, to the extent they are consistent with the
regulations in this section, customary biographical insertions in
approved law lists and reputable professional journals and directories,
as well as professional cards, letterheads and announcements: Provided,
That (i) attorneys do not violate applicable standards of ethical
conduct adopted by the American Bar Association, (ii) certified public
accountants do not violate applicable standards of ethical conduct
adopted by the American Institute of Certified Public Accountants, and
(iii) enrolled practitioners do not violate applicable standards of
ethical conduct adopted by the National Society of Public Accountants.
(c) Fee information. (1) Attorneys, certified public accountants and
enrolled practitioners may disseminate the following fee information:
(i) Fixed fees for specific routine services.
(ii) Hourly rates.
(iii) Range of fees for particular services.
(iv) Fee charged for an initial consultation.
(2) Attorneys, certified public accountants and enrolled
practitioners may also publish the availability of a written schedule of
fees.
(3) Attorneys, certified public accountants and enrolled
practitioners shall be bound to charge the hourly rate, the fixed fee
for specific routine services, the range of fees for particular
services, or the fee for an initial consultation published for a
reasonable period of time, but no less than thirty days from the last
publication of such hourly rate or fees.
(d) Communications. Communications, including fee information, shall
be limited to professional lists, telephone directories, print media,
permissible mailings as provided in these regulations, radio and
television. In the case of radio and television broadcasting, the
broadcast shall be pre-recorded and the practitioner shall retain a
recording of the actual audio transmission.
(e) Improper associations. An attorney, certified public accountant
or enrolled practitioner may, in matters related to the Bureau, employ
or accept employment or assistance as an associate, correspondent, or
subagent from, or share fees with, any person or entity who, to the
knowledge of the practitioner, obtains clients or otherwise practices in
a manner forbidden under this section: Provided, That an attorney,
certified public accountant or enrolled practitioner does not, directly
or indirectly, act or hold himself out as authorized to practice before
the Bureau in connection with that relationship. Nothing herein shall
prohibit an attorney, certified public accountant, or enrolled
practitioner from practice before the Bureau in a capacity other than
that described above.
(44 FR 47060, Aug. 10, 1979)
31 CFR 8.42 Practice of law.
Nothing in the regulations in this part may be construed as
authorizing persons not members of the bar to practice law.
31 CFR 8.42 Subpart E -- Disciplinary Proceedings
31 CFR 8.51 Authority to disbar or suspend.
The Secretary, after due notice and opportunity for hearing, may
suspend or disbar from practice before the Bureau any attorney,
certified public accountant, or enrolled practitioner shown to be
incompetent, disreputable or who refuses to comply with the rules and
regulations in this part or who shall, with intent to defraud, in any
manner willfully and knowingly deceive, mislead, or threaten any client
or prospective client, by word, circular, letter, or by advertisement.
(Sec. 3, 23 Stat. 258 (31 U.S.C. 1026))
31 CFR 8.52 Disreputable conduct.
Disreputable conduct for which an attorney, certified public
accountant, or enrolled practitioner may be disbarred or suspended from
practice before the Bureau includes, but is not limited to:
(a) Conviction of any criminal offense under the revenue laws of the
United States; under any other law of the United States which the
Bureau enforces pursuant to Treasury Department Order No. 221 (37 FR
11696) effective July 1, 1972; or for any offense involving dishonesty
or breach of trust.
(b) Giving false or misleading information, or participating in any
way in the giving of false or misleading information, to the Bureau or
any officer or employee thereof, or to any tribunal authorized to pass
upon matters administered by the Bureau in connection with any matter
pending or likely to be pending before them, knowing the information to
be false or misleading. Facts or other matters contained in testimony,
Federal tax returns, financial statements, applications for enrollment,
affidavits, declarations, or any other document or statement, written or
oral, are included in the term ''information''.
(c) Solicitation of employment as prohibited under 8.41, the use of
false or misleading representations with intent to deceive a client or a
prospective client in order to procure employment, or intimating that
the practitioner is able improperly to obtain special consideration or
action from the Bureau or an officer or employee thereof.
(d) Willfully failing to make a Federal tax return in violation of
the revenue laws of the United States, or evading, attempting to evade,
or participating in any way in evading or attempting to evade any
Federal tax or payment thereof; knowingly counseling or suggesting to a
client or prospective client an illegal plan to evade Federal taxes or
payment thereof, or concealing assets of himself or herself, or of
another in order to evade Federal taxes or payment thereof.
(e) Misappropriation of, or failure properly and promptly to remit
funds received from a client for the purpose of payment of taxes or
other obligations due the United States.
(f) Directly or indirectly attempting to influence, or offering or
agreeing to attempt to influence, the official action of any officer or
employee of the Bureau by the use of threats, false accusations, duress
or coercion, by the offer of any special inducement or promise of
advantage or by the bestowing of any gift, favor, or thing of value.
(g) Disbarment or suspension from practice as an attorney or
certified public accountant by any duly constituted authority of any
State, possession, Commonwealth, the District of Columbia, or by any
Federal court of record.
(h) Disbarment or suspension from practice as an attorney, certified
public accountant, or other person admitted to practice before the
Internal Revenue Service.
(i) Knowingly aiding and abetting another person to practice before
the Bureau during a period of suspension, disbarment, or ineligibility
of the other person. Maintaining a partnership for the practice of law,
accountancy, or other related professional service with a person who is
under disbarment from practice before the Bureau or the Intenal Revenue
Service is presumed to be a violation of this provision.
(j) Contemptuous conduct in connection with practice before the
Bureau, including the use of abusive language, making false accusations
and statements knowing them to be false, or circulating or publishing
malicious or libelous matter.
(k) Willful violatin of any of the regulations contained in this
part.
(42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977)
31 CFR 8.53 Initiation of disciplinary proceedings.
(a) Receipt of information. If an officer or employee of the Bureau
has reason to believe that an attorney, certified public accountant, or
enrolled practitioner has violated any of the provisions of this part or
engaged in any disreputable conduct as defined in 8.52, the employee
shall promptly make a report thereof which will be forwarded to the
Director of Practice. Any other person possessing information
concerning violations or disreputable conduct may make a report thereof
to the Director of Practice or to any officer or employee of the Bureau.
(b) Institution of proceeding. When the Director of Practice has
reason to believe that any attorney, certified public accountant, or
enrolled practitioner has violated any provisions of the laws or
regulations governing practice before the Bureau, he or she may
reprimand the person or institute a proceeding for the disbarment or
suspension of that person. The proceeding will be instituted by a
complaint which names the respondent and is signed by the Director of
Practice and filed in his or her office. Except in cases of
willfulness, or when time, the nature of the proceeding, or the public
interest does not permit, the Director of Practice may not institute a
proceeding until he or she has called to the attention of the proposed
respondent, in writing, facts or conduct which warrant institution of a
proceeding, and has accorded the proposed respondent the opportuity to
demonstrate or achieve compliance with all lawful requirements.
31 CFR 8.54 Conferences.
(a) General. The Director of Practice may confer with an attorney,
certified public accountant, or enrolled practioner concerning
allegations of misconduct whether or not a proceeding for disbarment or
suspension has been instituted. If a conference results in a
stipulation in connection with a proceeding in which that person is the
respondent, the stipulaton may be entered in the record at the instance
of either party to the proceeding.
(b) Resignation or voluntary suspension. An attorney, certified
public accountant, or enrolled practitioner, in order to avoid the
institution or conclusion of a disbarment or suspension proceeding, may
offer his or her consent to suspension from practice before the Bureau.
An enrolled practitioner may also offer a resignation. The Director of
Practice, at his or her discretion, may accept the offered resignation
of an enrolled practitioner and may suspend an attorney, certified
public accountant, or enrolled practitioner in accordance with the
consent offered.
31 CFR 8.55 Contents of complaint.
(a) Charges. A complaint will give a plain and concise description
of the allegations which constitute the basis for the proceeding. A
complaint will be deemed sufficient if it fairly informs the respondent
of the charges to that he or she is able to prepare a defense.
(b) Demand for answer. The complaint will give notification of the
place and time prescribed for the filing of an answer by the respondent;
that time will be not less than 15 days from the date of service of the
complaint. Notice will be given that a decision by default may be
rendered against the respondent if the complaint is not answered as
required.
31 CFR 8.56 Service of complaint and other papers.
(a) Complaint. A copy of the complaint may be served upon the
respondent by certified mail or by first-class mail. The copy of the
complaint may be delivered to the respondent or the respondent's
attorney or agent of record either in person or by leaving it at the
office or place of business of the respondent, attorney or agent, or the
complaint may be delivered in any manner which has been agreed to by the
respondent. If the service is by certified mail, the post office
receipt signed by or on behalf of the respondent will be proof of
service. If the certified matter is not claimed or accepted by the
respondent and is returned undelivered, complete service may be made
upon the respondent by mailing the complaint to him or her by
first-class mail, addressed to the respondent at the address under which
he or she is enrolled or at the last address known to the Director of
Practice. If service is made upon the respondent or the respondent's
attorney or agent in person, or by leaving the complaint at the office
or place of business of the respondent, attorney or agent, the verified
return by the person making service, setting forth the manner of
service, will be proof of service.
(b) Service of other papers. Any paper other than the complaint may
be served upon an attorney, certified public accountant, or enrolled
practitioner as provided in paragraph (a) of this section, or by mailing
the paper by first-class mail to the respondent at the last address
known to the Director of Practice, or by mailing the paper by
first-class mail to the respondent's attorney or agent of record. This
mailing will constitute complete service. Notices may be served upon
the respondent or his attorney or agent by telegram.
(c) Filing of papers. When the filing of a paper is required or
permitted in connection with a disbarment or suspension proceeding, and
the place of filing is not specified by this subpart or by rule or order
of the Administrative Law Judge, the papers will be filed with the
Director of Practice, Treasury Department, Washington, D.C. 20220. All
papers will be filed in duplicate.
31 CFR 8.57 Answer.
(a) Filing. The respondent shall file the answer in writing within
the time specified in the complaint or notice of institution of the
proceeding, unless on application the time is extended by the Director
of Practice or the Administrative Law Judge. The respondent shall file
the answer in duplicate with the director of Practice.
(b) Contents. The respondent shall include in the answer a statement
of facts which constitute the grounds of defense, and shall specifically
admit or deny each allegation set forth in the complaint, except that
the respondent shall not deny a material allegation in the complaint
which he or she knows to be true, or state that he or she is without
sufficient information to form a belief when in fact the respondent
possesses that information. The respondent may also state affirmatively
special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer is deemed
to be admitted and may be considered as proven, and no further evidence
in respect of that allegation need be adduced at a hearing. Failure to
file an answer within the time prescribed in the notice to the
respondent, except as the time for answer is extended by the Director of
Practice or the Administrative Law Judge, will constitute an admission
of the allegations of the complaint and a waiver of hearing, and the
Administrative Law Judge may make a decision by default without a
hearing or further procedure.
(d) Reply by Director of Practice. No reply to the respondent's
answer is required, and new matter in the answer will be deemed to be
denied, but the Director of Practice may file a reply at his or her
discretion or at the request of the Administrative Law Judge.
31 CFR 8.58 Supplemental charges.
If it appears that the respondent in his or her answer, falsely and
in bad faith, denies a material allegation of fact in the complaint or
states that the respondent has no knowledge sufficient to form a belief,
when he or she in fact possesses that information, or if it appears that
the respondent has knowingly introduced false testimony during
proceedings for his or her disbarment or suspension, the Director of
Practice may file supplemental charges against the respondent. These
supplemental charges may be tried with other charges in the case,
provided the respondent is given due notice and is afforded an
opportunity to prepare to a defense to them.
31 CFR 8.59 Proof; variance; amendment of pleadings.
In the case of a variance between the allegations in a pleading, the
Administrative Law Judge may order or authorize amendment of the
pleading to conform to the evidence. The party who would otherwise be
prejudiced by the amendment will be given reasonable opportunty to meet
the allegation of the pleading as amended, and the Administrative Law
Judge shall make findings on an issue presented by the pleadings as so
amended.
31 CFR 8.60 Motions and requests.
Motions and requests may be filed with the Director of Practice or
with the Administrative Law Judge.
31 CFR 8.61 Representation.
A respondent or proposed respondent may appear in person or be
represented by counsel or other representative who need not be enrolled
to practice before the Bureau. The Director of Practice may be
represented by an Attorney or other employee of the Treasury Department.
31 CFR 8.62 Administrative Law Judge.
(a) Appointment. An Administrative Law Judge, appointed as provided
by 5 U.S.C. 3105, shall conduct proceedings upon complaints for the
disbarment or suspension of attorneys, certified public accountants, or
enrolled practitioners.
(b) Responsibilities. The Administrative Law Judge in connection
with any disbarment or suspension proceeding shall have authority to:
(1) Administer oaths and affirmation;
(2) Make rulings upon motions and requests; these rulings may not be
appealed prior to the close of the hearing except at the discretion of
the Administrative Law Judge in extraordinary circumstances;
(3) Rule upon offers of proof, receive relevant evidence, and examine
witnesses;
(4) Take or authorize to the taking of depositions;
(5) Determine the time and place of hearing and regulate its course
and conduct;
(6) Hold or provide for the holding of conferences to settle or
simplify the issues by consent of the parties;
(7) Receive and consider oral or written arguments on facts or law;
(8) Make initial decisions;
(9) Adopt rules of procedure and modify them from time to time as
occasion requires for the orderly disposition of proceedings; and
(10) Perform acts and take measures as necessary to promote the
efficient conduct of any proceeding.
31 CFR 8.63 Hearings.
(a) Conduct. The Administrative Law Judge shall preside at the
hearing on a complaint for the disbarment or suspension of an attorney,
certified public accountant, or enrolled practitioner. Hearings will be
stenographically recorded and transcribed and the testimony of witnesses
will be received under oath or affirmation. The Administrative Law
Judge shall conduct hearings pursuant to 5 U.S.C. 556.
(b) Failure to appear. If either party to the proceedings fails to
appear at the hearing, after due notice has been sent, the
Administrative Law Judge may deem them to have waived the right to a
hearing and may make a decision against the absent party by default.
31 CFR 8.64 Evidence.
(a) Rules of evidence. The rules of evidence prevailing in courts of
law and equity are not controlling in hearings. However, the
Administrative Law Judge shall exclude evidence which is irrelevant,
immaterial, or unduly repetitious.
(b) Depositions. Depositions of witnesses taken pursuant to 8.65
may be admitted as evidence.
(c) Government documents. Official documents, records, and papers of
the Bureau of Alcohol, Tobacco and Firearms and the Office of the
Director of Practice are admissible in evidence without the prouction of
an officer or employee to authenticate them. These documents, records
and papers may be evidenced by a copy attested or identified by an
officer or employee of the Bureau or the Treasury Department.
(d) Exhibits. If any document, record, or other paper is introduced
in evidence as an exhibit, the Administrative Law Judge may authorize
the withdrawal of the exhibit subject to any conditions he or she deems
proper.
(e) Objections. Objections to evidence will be in short form,
stating the grounds of objection and the record may not include
arguments thereon, except as ordered by the Administrative Law Judge.
Rulings on objections will be a part of the record. No exception to the
ruling is necessary to preserve the rights of the parties.
31 CFR 8.65 Depositions.
Depositions for use at a hearing may, with the written approval of
the Administrative Law Judge, be taken by either the Director of
Practice or the respondent or their authorized representatives.
Depositions may be taken upon oral or written questioning, upon not less
than 10 days' written notice to the other party before any officer
authorized to administer an oath for general purposes or before an
officer or employee of the Bureau authorized to administer an oath
pursuant to 27 CFR 70.35. The written notice will state the names of the
witnesses and the time and place where the depositions are to be taken.
The requirement of 10 days' notice may be waived by the parties in
writing, and depositions may then be taken from the persons and at the
times and places mutually agreed to by the parties. When a deposition
is taken upon written questioning, any cross-examination will be upon
written questioning. Copies of the written questioning will be served
upon the other party with the notice, and copies of any written
cross-interrogation will be mailed or delivered to the opposing party at
least 5 days before the date of taking the depositions, unless the
parties mutually agree otherwise. A party on whose behalf a deposition
is taken must file it with the Administrative Law Judge and serve one
copy upon the opposing party. Expenses in the reproduction of
depositions will be borne by the party at whose instance the deposition
is taken.
31 CFR 8.66 Transcript.
In cases in which the hearing is stenographically reported by a
Government contract reporter, copies of the transcript may be obtained
from the reporter at rates not to exceed the maximum rates fixed by
contract between the Government and the reporter. If the hearing is
stenographically reported by a regular employee of the Bureau, a copy of
the hearing will be supplied to the respondent either without charge or
upon the payment of a reasonable fee. Copies of exhibits introduced at
the hearing or at the taking of depositions will be supplied to the
parties upon the payment of a reasonable fee.
(Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a))
31 CFR 8.67 Proposed findings and conclusions.
Except in cases when the respondent has failed to answer the
complaint or when a party has failed to appear at the hearing, the
Administrative Law Judge, prior to making his or her decision, shall
afford the parties a reasonable opportunity to submit proposed findings
and conclusions and their supporting reasons.
31 CFR 8.68 Decision of Administrative Law Judge.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the Administrative Law Judge shall make the initial decision in
the case. The decision will include (a) a statement of findings and
conclusions, as well as the reasons or basis therefor, upon all the
material issues of fact, law, or discretion presented on the record, and
(b) an order of disbarment, suspension, or reprimand or an order of
dismissal of the complaint. The Administrative Law Judge shall file the
decision with the Director of Practice and shall transmit a copy to the
respondent or the respondent's attorney of record. In the absence of an
appeal to the Secretary, or review of the decision upon motion of the
Secretary, the decision of the Administrative Law Judge will, without
further proceedings, become the decision of the Secretary of the
Treasury 30 days from the date of the Administrative Law Judge's
decision.
31 CFR 8.69 Appeal to the Secretary.
Within 30 days from the date of the Administrative Law Judge's
decision, either party may appeal to the Secretary. The appeal will be
filed with the Director of Practice in duplicate and will include
exceptions to the decision of the Administrative Law Judge and
supporting reasons for those exceptions. If the Director of Practice
files the appeal, he or she shall transmit a copy of it to the
respondent. Within 30 days after receipt of an appeal or copy thereof,
the other party may file a reply brief in duplicate with the Director of
Practice. If the Director of Practice files the reply brief, he or she
shall transmit a copy of it to the respondent. Upon the filing of an
appeal and a reply brief, if any, the Director of Practice shall
transmit the entire record to the Secretary.
31 CFR 8.70 Decision of the Secretary.
On appeal from or review of the intial decision of the Administrative
Law Judge, the Secretary shall make the agency decision. In making this
decision, the Secretary shall review the record or those portions of the
records as may be cited by the parties in order to limit the issues.
The Director of Prasctice shall transmit a copy of the Secretary's
decision to the respondent.
31 CFR 8.71 Effect of disbarment or suspension.
(a) Disbarment. If the final order against the respondent is for
disbarment, the respondent will not thereafter be permitted to practice
before the Bureau unless authorized to do so by the Director of Practice
pursuant to 8.72.
(b) Suspension. If the final order against the respondent is for
suspension, the respondent will not thereafter be permitted to practice
before the Bureau during the period of suspension.
(c) Surrender of enrollment card. If an enrolled practitioner is
disbarred or suspended, he or she shall surrender the enrollment card to
the Director of Practice for cancellation, in the case of disbarment, or
for retention during the period of suspension.
(d) Notice of disbarment or suspension. Upon the issuance of a final
order for suspension or disbarment, the Director of Practice shall give
notice of the order to appropriate officers and employees of the Bureau
of Alcohol, Tobacco and Firearms and to interested departments and
agencies of the Federal Government. The Director of Practice may also
give notice as he or she may determine to the proper authorities of the
State in which the disbarred or suspended person was licensed to
practice as an attorney or certified public accountant.
31 CFR 8.72 Petition for reinstatement.
The Director of Practice may entertain a petition for reinstatement
from any person disbarred from practice before the Bureau after the
expiration of 5 years following disbarment. The director of Practice
may not grant reinstatement unless he or she is satisfied that the
petitioner is not likely to conduct himself or herself contrary to the
regulations in this part, and that granting reinstatement would not be
contrary to the public interest.
31 CFR 8.72 PART 9 -- EFFECTS OF IMPORTED ARTICLES ON THE NATIONAL
SECURITY
Sec.
9.2 Definitions.
9.3 General.
9.4 Criteria for determining effects of imports on national security.
9.5 Applications for investigation.
9.6 Confidential information.
9.7 Conduct of investigation.
9.8 Emergency action.
9.9 Report.
Authority: Sec. 232, as amended, 76 Stat. 877, 80 Stat. 369 (19
U.S.C. 1862); 5 U.S.C. 301; Reorg. Plan No. 1 of 1973; and E.O.
11725, June 27, 1973 (38 FR 17175).
31 CFR 9.2 Definitions.
As used herein, Secretary means the Secretary of the Treasury and
''Assistant Secretary'' means the Assistant Secretary of the Treasury
(Enforcement, Operations, and Tariff Affairs).
(40 FR 50717, Oct. 31, 1975)
31 CFR 9.3 General.
(a) Upon request of the head of any Government department or agency,
upon application of an interested party, or upon his own motion, the
Assistant Secretary shall set in motion an immediate investigation to
determine the effects on the national security of imports of any
article.
(b) The Secretary shall report the findings of his investigation
under paragraph (a) of this section with respect to the effect of the
importation of such article in such quantities or under such
circumstances upon the national security and, based on such findings,
his recommendation for action or inaction to the President within one
year after receiving an application from an interested party or
otherwise beginning an investigation under this section.
(39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31,
1975)
31 CFR 9.4 Criteria for determining effects of imports on national
security.
(a) In determining the effect on the national security of imports of
the article which is the subject of the investigation, the Secretary is
required to take into consideration the following:
(1) Domestic production needed for projected national defense
requirements including restoration and rehabilitation.
(2) The capacity of domestic industries to meet such projected
requirements, including existing and anticipated availabilities of:
(i) Human resources.
(ii) Products.
(iii) Raw materials.
(iv) Production equipment and facilities.
(v) Other supplies and services essential to the national defense.
(3) The requirement of growth of such industries and such supplies
and services including the investment, exploration and development
necessary to assure capacity to meet projected defense requirements.
(4) The effect which the quantities, availabilities, character and
uses of imported goods have or will have on such industries and the
capacity of the United States to meet national security requirements.
(5) The economic welfare of the Nation as it is related to our
national security, including the impact of foreign competition on the
economic welfare of individual domestic industries. In determining
whether such impact may impair the national security, any substantial
unemployment, decrease in revenues of government, loss of skills or
investment, or other serious effects shall be considered.
(b) The Secretary shall also consider other relevant factors in
determining whether the national security is affected by imports of the
article.
(39 FR 10898, Mar. 22, 1974)
31 CFR 9.5 Applications for investigation.
(a) Applications shall be in writing. Twenty-five copies shall be
filed by mail with the Assistant Secretary (Enforcement, Operations, and
Tariff Affairs), Department of the Treasury, Washington, D.C. 20220.
(b) Applications shall describe how the quantities or circumstances
of imports of the particular article affect the national security and
shall contain the following information:
(1) Identification of the person, partnership, association,
corporation, or other entity on whose behalf the application is filed.
(2) A precise description of the article.
(3) Description of the applicant and the domestic industry concerned,
including pertinent information regarding companies and their plants,
locations, capacity and current output of the domestic industry
concerned with the article in question.
(4) Pertinent statistics showing the quantities and values of both
imports and production in the United States.
(5) Nature, sources, and degree of the competition created by imports
of the article in question.
(6) The effect, if any, of imports of the article in question upon
the restoration of domestic production capacity in an emergency.
(7) Employment and special skills involved in the domestic production
of the article.
(8) Extent to which investment and specialized productive capacity is
or will be adversely affected.
(9) Revenues of Federal, State, or local Governments which are or may
be affected by the volume or circumstances of imports of the article.
(10) Defense or defense supporting uses of the article including data
on defense contracts or sub-contracts, both past and current.
(c) Statistical material presented should be on a calendar-year basis
for sufficient periods of time to indicate trends and afford the
greatest possible assistance to the Assistant Secretary. Monthly or
quarterly data for the latest complete years should be included as well
as any other breakdowns which may be pertinent to show seasonal or
short-term factors.
(39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31,
1975)
31 CFR 9.6 Confidential information.
Information submitted in confidence which the Assistant Secretary
determines would disclose trade secrets and commercial or financial
information obtained from a person and privileged, within the meaning of
5 U.S.C. 552 and 31 CFR part 1, will be accorded confidential treatment.
All information submitted in confidence must be on separate pages
marked ''Business Confidential.''
(40 FR 50717, Oct. 31, 1975)
31 CFR 9.7 Conduct of investigation.
(a) The investigation by the Assistant Secretary or by such official
or agency as he may designate, shall be such as to enable the Secretary
to arrive at a fully informed opinion as to the effect on the national
security of imports of the article in question.
(b) If the Assistant Secretary determines that it is appropriate to
hold public hearings or otherwise afford interested parties an
opportunity to present information and advice relevant to an
investigation, he shall issue a public notice which shall be published
in the Federal Register. Such notice shall include a statement of the
time, place and nature of any public hearing or shall solicit from any
interested party written comments, opinions, or data relative to the
investigation, to be submitted to the Assistant Secretary within the
time period specified in the notice. Rebuttal to material so submitted
may be filed with the Assistant Secretary within such time as is
specified in the public notice. All data, comments and opinions shall
be submitted with 25 copies.
(c) All applications filed and all comments, opinions, and data
submitted pursuant to paragraph (b) of this section, except information
determined to be confidential as provided in 9.6, will be available for
inspection and copying at the Office of the Assistant Secretary
(Enforcement, Operations, and Tariff Affairs), Department of the
Treasury, in Washington, D.C. The Assistant Secretary will maintain a
roster of persons who have submitted materials.
(d) The Assistant Secretary or his designee may also request further
data from other sources through the use of questionnaires,
correspondence, or other means.
(e) The Assistant Secretary or his delegate shall, in the course of
the investigation, seek information or advice from, and consult with,
the Secretary of Defense, the Secretary of Commerce, or their delegates,
and any other appropriate officer of the United States as the Assistant
Secretary shall determine.
(f) In addition, the Assistant Secretary, or his designee, may, when
he deems it appropriate, hold public hearings to elicit further
information. If a hearing is held:
(1) The time and place thereof will be published in the Federal
Register.
(2) It will be conducted by the Assistant Secretary or his designee,
and the full record will be considered by the Secretary in arriving at
his determination.
(3) Interested parties may appear, either in person or by
representation, and produce oral or written evidence relevant and
material to the subject matter of the investigation.
(4) After a witness has testified the Assistant Secretary or his
designee may question the witness. Questions submitted to the Assistant
Secretary or his designee in writing by any interested party may, at the
discretion of the Assistant Secretary or his designee, be posed to the
witness for reply for the purpose of assisting the Assistant Secretary
in obtaining the material facts with respect to the subject matter of
the investigation.
(5) The hearing will be stenographically reported. The Assistant
Secretary will not cause transcripts of the record of the hearing to be
distributed to the interested parties, but a transcript may be inspected
at the Office of the Assistant Secretary (Enforcement, Operations, and
Tariff Affairs), Department of the Treasury, in Washington, D.C., or
purchased from the reporter.
(39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31,
1975)
31 CFR 9.8 Emergency action.
In emergency situations or when in his judgment national security
interests require it, the Secretary may vary or dispense with any of the
procedures set forth above and may formulate his views without following
such procedures.
(39 FR 10898, Mar. 22, 1974)
31 CFR 9.9 Report.
A report will be made and published in the Federal Register upon the
disposition of each request, application or motion under 9.3. Copies
of the report will be available at the Office of the Assistant Secretary
(Enforcement, Operations, and Tariff Affairs), Department of the
Treasury.
(40 FR 50718, Oct. 31, 1975)
31 CFR 9.9 Pt. 10
31 CFR 9.9 PART 10 -- PRACTICE BEFORE THE INTERNAL REVENUE SERVICE
Sec.
10.0 Scope of part.
31 CFR 9.9 Subpart A -- Rules Governing Authority to Practice
10.1 Director of Practice.
10.2 Definitions.
10.3 Who may practice.
10.4 Eligibility for enrollment.
10.5 Application for enrollment.
10.6 Enrollment.
10.7 Limited practice; special appearances; return preparation and
furnishing information.
10.8 Customhouse brokers.
31 CFR 9.9 Subpart B -- Duties and Restrictions Relating to Practice
Before the Internal Revenue Service
10.20 Information to be furnished.
10.21 Knowledge of client's omission.
10.22 Diligence as to accuracy.
10.23 Prompt disposition of pending matters.
10.24 Assistance from disbarred or suspended persons and former
Internal Revenue Service employees.
10.25 Practice by partners of Government employees.
10.26 Practice by former Government employees, their partners and
their associates.
10.27 Notaries.
10.28 Fees.
10.29 Conflicting interests.
10.30 Solicitation.
10.31 Negotiation of taxpayer refund checks.
10.32 Practice of law.
10.33 Tax shelter opinions.
31 CFR 9.9 Subpart C -- Rules Applicable to Disciplinary Proceedings
10.50 Authority to disbar or suspend.
10.51 Disreputable conduct.
10.52 Violation of regulations.
10.53 Receipt of information concerning attorneys, certified public
accountants and enrolled agents.
10.54 Institution of proceeding.
10.55 Conferences.
10.56 Contents of complaint.
10.57 Service of complaint and other papers.
10.58 Answer.
10.59 Supplemental charges.
10.60 Reply to answer.
10.61 Proof; variance; amendment of pleadings.
10.62 Motions and requests.
10.63 Representation.
10.64 Administrative Law Judge.
10.65 Hearings.
10.66 Evidence.
10.67 Depositions.
10.68 Transcript.
10.69 Proposed findings and conclusions.
10.70 Decision of the Administrative Law Judge.
10.71 Appeal to the Secretary.
10.72 Decision of the Secretary.
10.73 Effect of disbarment or suspension; surrender of card.
10.74 Notice of disbarment or suspension.
10.75 Petition for reinstatement.
10.76 Advisory committee.
31 CFR 9.9 Subpart D -- Rules Applicable to Disqualification of
Appraisers
10.77 Authority to disqualify; effect of disqualification.
10.78 Institution of proceeding.
10.79 Contents of complaint.
10.80 Service of complaint and other papers.
10.81 Answer.
10.82 Supplemental charges.
10.83 Reply to answer.
10.84 Proof, variance, amendment of pleadings.
10.85 Motions and requests.
10.86 Representation.
10.87 Administrative Law Judge.
10.88 Hearings.
10.89 Evidence.
10.90 Depositions.
10.91 Transcript.
10.92 Proposed findings and conclusions.
10.93 Decision of the Administrative Law Judge.
10.94 Appeal to the Secretary.
10.95 Decision of the Secretary.
10.96 Final order.
10.97 Petition for reinstatement.
31 CFR 9.9 Subpart E -- General Provisions
10.98 Records.
10.99 Effective date of regulations.
10.100 Saving clause.
10.101 Special orders.
Authority: Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.
; 5 U.S.C. 301, 500, 551-559, 31 U.S.C. 1026; Reorg. Plan No. 26 of
1950, 15 FR 4935, 64 Stat. 1280, 3 CFR, 1949-1953 Comp., p. 1017.
Source: Department Circular 230, Revised, 31 FR 10773, Aug. 13,
1966, unless otherwise noted.
31 CFR 10.0 Scope of part.
This part contains rules governing the recognition of attorneys,
certified public accountants, enrolled agents, and other persons
representing clients before the Internal Revenue Service. Subpart A of
this part sets forth rules relating to authority to practice before the
Internal Revenue Service; Subpart B of this part prescribes the duties
and restrictions relating to such practice; Subpart C of this part
contains rules relating to disciplinary proceedings; and Subpart D of
this part contains general provisions, including provisions relating to
availability of official records.
(42 FR 38352, July 28, 1977)
31 CFR 10.0 Subpart A -- Rules Governing Authority To Practice
31 CFR 10.1 Director of Practice.
(a) Establishment of office. There is established in the Office of
the Secretary of the Treasury the office of Director of Practice. The
Director of Practice shall be appointed by the Secretary of the
Treasury.
(b) Duties. The Director of Practice shall act upon applications for
enrollment to practice before the Internal Revenue Service; institute
and provide for the conduct of disciplinary proceedings relating to
attorneys, certified public accountants, enrolled agents, enrolled
actuaries and appraisers; make inquiries with respect to matters under
his jurisdiction; and perform such other duties as are necessary or
appropriate to carry out his functions under this part or as are
prescribed by the Secretary of the Treasury.
(c) Acting Director. The Secretary of the Treasury will designate an
officer or employee of the Treasury Department to act as Director of
Practice in the event of the absence of the director or of a vacancy in
that office.
(31 FR 10773, Aug. 13, 1966, as amended at 51 FR 2878, Jan. 22, 1986)
31 CFR 10.2 Definitions.
As used in this part, except where the context clearly indicates
otherwise, the term:
(a) Practice before the Internal Revenue Service comprehends all
matters connected with presentation to the Internal Revenue Service or
any of its officers or employees relating to a client's rights,
privileges, or liabilities under laws or regulations administered by the
Internal Revenue Service. Such presentations include the preparation
and filing of necessary documents, correspondence with and
communications to the Internal Revenue Service, and the representation
of a client at conferences, hearings, and meetings.
(b) Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory,
Commonwealth, or the District of Columbia.
(c) Certified public accountant means any person who is duly
qualified to practice as a certified public accountant in any State,
possession, territory, Commonwealth, or the District of Columbia.
(d) Commissioner refers to the Commission of Internal Revenue.
(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 U.S.C.
301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR
4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))
(31 FR 10773, Aug. 13, 1966, as amended at 37 FR 1017, Jan. 21, 1972;
42 FR 38352, July 28, 1977; 49 FR 6722, Feb. 23, 1984)
31 CFR 10.3 Who may practice.
(a) Attorneys. Any attorney who is not currently under suspension or
disbarment from practice before the Internal Revenue Service may
practice before the Service upon filing with the Service a written
declaration that he is currently qualified as an attorney and is
authorized to represent the particular party on whose behalf he acts.
An enrollment card issued to such person before the effective date of
this regulation shall be invalid and may not be used in lieu of such
written declaration. 1001
(b) Certified public accountants. Any certified public accountant
who is not currently under suspension or disbarment from practice before
the Internal Revenue Service may practice before the Service upon filing
with the Service a written declaration that he is currently qualified as
a certified public accountant and is authorized to represent the
particular party on whose behalf he acts. An enrollment card issued to
such person before the effective date of this regulation shall be
invalid and may not be used in lieu of such written declaration. 1
(c) Enrolled agents. Any person enrolled as an agent pursuant to
this part may practice before the Internal Revenue Service.
(d) Enrolled Actuaries. (1) Any individual who is enrolled as an
actuary by the Joint Board for the Enrollment of Actuaries pursuant to
29 U.S.C. 1242 may practice before the Internal Revenue Service upon
filing with the Service a written declaration that he/she is currently
qualified as an enrolled actuary and is authorized to represent the
particular party on whose behalf he/she acts. Practice as an enrolled
actuary is limited to representation with respect to issues involving
the following statuatory provisions.
Internal Revenue Code (Title 26 U.S.C.) sections: 401 (qualification
of employee plans), 403(a) (relating to whether an annuity plan meets
the requirements of section 404(a)(2)), 404 (deductibility of employer
contributions), 405 (qualification of bond purchase plans), 412 (funding
requirements for certain employee plans), 413 (application of
qualification requirements to collectively bargained plans and to plans
maintained by more than one employer), 414 (containing definitions and
special rules relating to the employee plan area), 4971 (relating to
excise taxes payable as a result of an accumulated funding deficiency
under section 412), 6057 (annual registration of plans), 6058
(information required in connection with certain plans of deferred
compensation), 6059 (periodic report of actuary), 6652(e) (failure to
file annual regustration and other notifications by pension plan),
6652(f) (failure to file information required in connection with certain
plans of deferred compensation), 6692 (failure to file acuarial report),
7805(b) (relating to the extent, if any, to which an Internal Revenue
Service ruling or determination letter coming under the herein listed
statutory provisions shall be applied without retroactive effect); and
29 U.S.C. 1083 (relating to waiver of funding for nonqualified plans).
(2) An individual who practices before the Internal Revenue Service
pursuant to this subsection shall be subject to the provisions of this
part in the same manner as attorneys, certified public accountants and
enrolled agents.
(e) Others. Any person qualifying under 10.7 or 10.5(c) may
practice before Internal Revenue Service.
(f) Government officers and employees; others. No officer or
employee of the United States in the executive, legislative, or judicial
branch of the Government, or in any agency of the United States,
including the District of Columbia, may practice before the Service,
except that such officer or employee may, subject to the conditions and
requirements of these regulations and of 18 U.S.C. 205, represent a
member of his immediate family or any other person or estate for which
he serves as guardian, executor, administrator, trustee, or other
personal fiduciary. No Member of Congress or Resident Commissioner
(elect or serving) may practice before the Service in connection with
any matter for which he directly or indirectly receives, agrees to
receive, or seeks any compensation. 18 U.S.C. 203, 205. Nothing herein
shall be construed as prohibiting an officer or employee of the United
States as aforesaid, who is otherwise eligible to practice under the
provision of this part, from representing others before the Internal
Revenue Service when doing so in the proper discharge of his official
duties.
(g) State officers and employees. No officer or employee of any
State, or subdivision thereof, whose duties require him to pass upon,
investigate, or deal with tax matters of such State or subdivision, may
practice before the Service, if such State employment may disclose facts
or information applicable to Federal tax matters.
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19,
1970; 36 FR 8671, May 11, 1971; 44 FR 4946, Jan. 24, 1979)
0011This supersedes the provision contained in a notice of interim
course of action published in the Federal Register, Nov. 16, 1965 (30
FR 14331) which permitted attorneys and certified public accountants,
who were enrolled as of Nov. 8, 1965, to continue to use their
enrollment cards as evidence of authority to practice before the
Service.
31 CFR 10.4 Eligibility for enrollment.
(a) Enrollment upon examination. The Director of Practice may grant
enrollment to an applicant who demonstrates special competence in tax
matters by written examination administered by the Internal Revenue
Service and who has not engaged in any conduct which would justify the
suspension or disbarment of any attorney, certified public accountant,
or enrolled agent under the provisions of this part.
(b) Enrollment of former Internal Revenue Service employees. The
Director of Practice may grant enrollment to an applicant who has not
engaged in any conduct which would justify the suspension or disbarment
of any attorney, certified public accountant, or enrolled agent under
the provisions of this part and who, by virtue of his past service and
technical experience in the Internal Revenue Service has qualified for
such enrollment, as follows:
(1) Application for enrollment on account of former employment in the
Internal Revenue Service shall be made to the Director of Practice.
Each applicant will be supplied a form by the Director of Practice,
which shall indicate the information required respecting the applicant's
qualifications. In addition to the applicant's name, address,
citizenship, age, educational experience, etc., such information shall
specifically include a detailed ascount of the applicant's employment in
the Internal Revenue Service, which account shall show (i) positions
held, (ii) date of each appointment and termination thereof, (iii)
nature of services rendered in each position, with particular reference
to the degree of technical experience involved, and (iv) name of
supervisor in such positions, together with such other information
regarding the experience and training of the applicant as may be
relevant.
(2) Upon receipt of each such application, it shall be transmitted to
the appropriate officer of the Internal Revenue Service with the request
that a detailed report of the nature and rating of the applicant's
services in the Internal Revenue Service, accompanied by the
recommendation of the superior officer in the particular unit or
division of the Internal Revenue Service that such employment does or
does not qualify the applicant technically or otherwise for the desired
authorization, be furnished to the Director of Practice.
(3) In examining the qualification of an applicant for enrollment on
account of employment in the Internal Revenue Service, the Director of
Practice will be governed by the following policies:
(i) Enrollment on account of such employment may be of unlimited
scope or may be limited to permit the presentation of matters only of
the particular class or only before the particular unit or division of
the Internal Revenue Service for which his former employment in the
Internal Revenue Service has qualified the applicant.
(ii) Application for enrollment on account of employment in the
Internal Revenue Service must be made within 3 years from the date of
separation from such employment.
(iii) It shall be requisite for enrollment on account of such
employment that the applicant shall have had a minimum of 5 years
continuous employment in the Service during which he shall have been
regularly engaged in applying and interpreting the provisions of the
Internal Revenue Code and the regulations thereunder relating to income,
estate, gift, employment, or excise taxes.
(iv) For the purposes of paragraph (b)(3)(iii) of this section an
aggregate of 10 or more years of employment, at least 3 of which
occurred within the 5 years preceding the date of application, shall be
deemed the equivalent of 5 years continuous employment.
(c) Natural persons. Enrollment to practice may be granted only to
natural persons.
(d) Attorneys; certified public accountants. Enrollment is not
available to persons who qualify to practice under 10.3(a) or (b).
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19,
1970; 42 FR 38352, July 28, 1977; 51 FR 2878, Jan. 22, 1986)
31 CFR 10.5 Application for enrollment.
(a) Form; fee. An applicant for enrollment shall file with the
Director of Practice of Internal Revenue an application on Form 23,
properly executed under oath or affirmation. Such application shall be
accompanied by a check or money order in the amount set forth on Form
23, payable to the Internal Revenue Service, which amount shall
constitute a fee which shall be charged to each applicant for
enrollment. The fee shall be retained by the United States whether or
not the applicant is granted enrollment.
(b) Additional information; examination. The Director of Practice,
as a condition to consideration of an application for enrollment, may
require the applicant to file additional information and to submit to
any written or oral examination under oath or otherwise. The Director
of Practice shall, upon written request, afford an applicant the
opportunity to be heard with respect to his application for enrollment.
(c) Temporary recognition. Upon receipt of a properly executed
application, the Director of Practice may grant the applicant temporary
recognition to practice pending a determination as to whether enrollment
to practice should be granted. Such temporary recognition shall not be
granted if the application is not regular on its face; if the
information stated therein, if true, is not sufficient to warrant
enrollment to practice; if there is any information before the Director
of Practice which indicates that the statements in the application are
untrue; or which indicates that the applicant would not otherwise
qualify for enrollment. Issuance of temporary recognition shall not
constitute enrollment to practice or a finding of eligibility for
enrollment, and the temporary recognition may be withdrawn at any time
by the Director of Practice.
(d) Appeal from denial of application. The Director of Practice, in
denying an application for enrollment, shall inform the applicant as to
the reason(s) therefor. The applicant may, within 30 days after receipt
of the notice of denial, file a written appeal therefrom, together with
his/her reasons in support thereof, to the Secretary of the Treasury. A
decision on the appeal will be rendered by the Secretary of the Treasury
as soon as practicable.
(Sec. 501, Pub. L. 82-137, 65 Stat. 290; 31 U.S.C. 483a)
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38352, July 28,
1977; 51 FR 2878 Jan. 22, 1986)
31 CFR 10.6 Enrollment.
(a) Roster. The Director of Practice shall maintain rosters of all
individuals:
(1) Who have been granted active enrollment to practice before the
Internal Revenue Service;
(2) Whose enrollment has been placed in an inactive status for
failure to meet the requirements for renewal of enrollment;
(3) Whose enrollment has been placed in an inactive retirement
status;
(4) Who have been disbarred or suspended from practice before the
Internal Revenue Service;
(5) Whose offer of consent to resignation from enrollment to practice
before the Internal Revenue Service has been accepted by the Director of
Practice under 10.55 of this part; and
(6) Whose application for enrollment has been denied.
(b) Enrollment card. The Director of Practice will issue an
enrollment card to each individual whose application for enrollment to
practice before the Internal Revenue Service is approved after the
effective date of this regulation. Each such enrollment card will be
valid for the period stated thereon. Enrollment cards issued
individuals before February 1, 1987 shall become invalid after March 31,
1987. An individual having an invalid enrollment card is not eligible
to practice before the Internal Revenue Service.
(c) Term of enrollment. Active enrollment to practice before the
Internal Revenue Service is accorded each individual enrolled, so long
as renewal of enrollment is effected as provided in this part.
(d) Renewal of enrollment. To maintain active enrollment to practice
before the Internal Revenue Service, each individual enrolled is
required to have his/her enrollment renewed as set forth herein.
Failure by an individual to receive notification from the Director of
Practice of the renewal requirement will not be justification for
circumvention of such requirement.
(1) All individuals enrolled to practice before the Internal Revenue
Service before November 1, 1986 shall apply for renewal of enrollment
during the period between November 1, 1986 and January 31, 1987. Those
who receive initial enrollment between November 1, 1986 and January 31,
1987 shall apply for renewal of enrollment by March 1, 1987. The first
effective date of renewal will be April 1, 1987.
(2) Thereafter, applications for renewal will be required between
November 1, 1989 and January 31, 1990, and between November 1 and
January 31 of every third year subsequent thereto. Those who receive
initial enrollment during the renewal application period shall apply for
renewal of enrollment by March 1 of the renewal year. The effective
date of renewed enrollment will be April 1, 1990, and April 1 of every
third year subsequent thereto.
(3) The Director of Practice will notify the individual of renewal of
enrollment and will issue a card evidencing such renewal.
(4) A reasonable nonrefundable fee may be charged for each
application for renewal of enrollment filed with the Director of
Practice.
(5) Forms required for renewal may be obtained from the Director of
Practice, Internal Revenue Service, Washington, DC 20224.
(e) Condition for renewal: Continuing Professional Education. In
order to qualify for renewal of enrollment, an individual enrolled to
practice before the Internal Revenue Service must certify, on the
application for renewal form prescribed by the Director of Practice,
that he/she has satisfied the following continuing professional
education requirements.
(1) For renewed enrollment effective April 1, 1987. (i) A minimum of
24 hours of continuing education credit must be completed between
January 1, 1986 and January 31, 1987.
(ii) An individual who receives initial enrollment between January 1,
1986 and January 31, 1987 is exempt from the continuing education
requirement for the renewal of enrollment effective April 1, 1987, but
is required to file a timely application for renewal of enrollment.
(2) For renewed enrollment effective April 1, 1990 and every third
year thereafter. (i) A minimum of 72 hours of continuing education
credit must be completed between February 1, 1987 and January 31, 1990,
and during each three year period subsequent thereto. Each such three
year period is known as an enrollment cycle.
(ii) A minimum of 16 hours of continuing education credit must be
completed in each year of an enrollment cycle.
(iii) An individual who receives initial enrollment during an
enrollment cycle must complete two (2) hours of qualifying continuing
education credit for each month enrolled during such enrollment cycle.
Enrollment for any part of a month is considered enrollment for the
entire month.
(f) Qualifying continuing education -- (1) General. To qualify for
continuing education credit, a course of learning must:
(i) Be a qualifying program designed to enhance the professional
knowledge of an individual in Federal taxation or Federal tax related
matters, i.e. programs comprised of current subject matter in Federal
taxation or Federal tax related matters to include accounting, financial
management, business computer science and taxation; and
(ii) Be conducted by a qualifying sponsor.
(2) Qualifying programs. (i) Formal programs. Formal programs
qualify as continuing education programs if they:
(A) Require attendance;
(B) Require that the program be conducted by a qualified instructor,
discussion leader or speaker, i.e. a person whose background, training,
education and/or experience is appropriate for instructing or leading a
discussion on the subject matter of the particular program; and
(C) Require a written outline and/or textbook and certificate of
attendance provided by the sponsor, all of which must be retained by the
attendee for a three year period following renewal of enrollment.
(ii) Correspondence or individual study programs (including taped
programs). Qualifying continuing education programs include
correspondence or individual study programs completed on an individual
basis by the enrolled individual and conducted by qualifying sponsors.
The allowable credit hours for such programs will be measured on a basis
comparable to the measurement of a seminar or course for credit in an
accredited educational institution. Such programs qualify as continuing
education programs if they:
(A) Require registration of the participants by the sponsor;
(B) Provide a means for measuring completion by the participants
(e.g., written examination); and
(C) Require a written outline and/or textbook and certificate of
completion provided by the sponsor which must be retained by the
participant for a three year period following renewal of enrollment.
(iii) Serving as an instructor, discussion leader or speaker.
(A) One hour of continuing education credit will be awarded for each
contact hour completed as an instructor, discussion leader or speaker at
an educational program which meets the continuing education requirements
of this part.
(B) Two hours of continuing education credit will be awarded for
actual subject preparation time for each contact hour completed as an
instructor, discussion leader or speaker at such programs. It will be
the responsibility of the individual claiming such credit to maintain
records to verify preparation time.
(C) The maximum credit for instruction and preparation may not exceed
50% of the continuing education requirement for an enrollment cycle.
(D) Presentation of the same subject matter in an instructor,
discussion leader or speaker capacity more than one time during an
enrollment cycle will not qualify for continuing education credit.
(iv) Credit for published articles, books, etc.
(A) Continuing education credit will be awarded for publications on
Federal taxation or Federal tax related matters to include accounting,
financial management, business computer science, and taxation, provided
the content of such publications is current and designed for the
enhancement of the professional knowledge of an individual enrolled to
practice before the Internal Revenue Service.
(B) The credit allowed will be on the basis of one hour credit for
each hour of preparation time for the material. It will be the
responsibility of the person claiming the credit to maintain records to
verify preparation time.
(C) The maximum credit for publications may not exceed 25% of the
continuing education requirement of any enrollment cycle.
(3) Periodic examination. Individuals may establish eligibility for
renewal of enrollment for any enrollment cycle by:
(i) Achieving a passing score on each part of the Special Enrollment
Examination administered under this part during the three year period
prior to renewal; and
(ii) Completing a minimum of 16 hours of qualifying continuing
education during the last year of an enrollment cycle.
(g) Sponsors. (1) Sponsors are those responsible for presenting
programs.
(2) To qualify as a sponsor, a program presenter must:
(i) Be an accredited educational institution;
(ii) Be recognized for continuing education purposes by the licensing
body of any State, possession, territory, Commonwealth, or the District
of Columbia responsible for the issuance of a license in the field of
accounting or law;
(iii) Be recognized by the Director of Practice as a professional
organization or society whose programs include offering continuing
professional education opportunities in subject matter within the scope
of this part; or
(iv) File a sponsor agreement with the Director of Practice to obtain
approval of the program as a qualified continuing education program.
(3) A qualifying sponsor must ensure the program complies with the
following requirements:
(i) Programs must be developed by individual(s) qualified in the
subject matter;
(ii) Program subject matter must be current;
(iii) Instructors, discussion leaders, and speakers must be qualified
with respect to program content;
(iv) Programs must include some means for evaluation of technical
content and presentation;
(v) Certificates of completion must be provided those who have
successfully completed the program; and
(vi) Records must be maintained by the sponsor to verify completion
of the program and attendance by each participant. Such records must be
retained for a period of three years following completion of the
program. In the case of continuous conferences, conventions, and the
like, records must be maintained to verify completion of the program and
attendance by each participant at each segment of the program.
(4) Professional organizations or societies wishing to be considered
as qualified sponsors shall request such status of the Director of
Practice and furnish information in support of the request together with
any further information deemed necessary by the Director of Practice.
(5) Sponsor agreements and qualified professional organization or
society sponsors approved by the Director of Practice shall remain in
effect for one enrollment cycle. The names of such sponsors will be
published on a periodic basis.
(h) Measurement of continuing education coursework. (1) All
continuing education programs will be measured in terms of contact
hours. The shortest recognized program will be one contact hour.
(2) A contact hour is 50 minutes of continuous participation in a
program. Credit is granted only for a full contact hour, i.e. 50
minutes or multiples thereof. For example, a program lasting more than
50 minutes but less than 100 minutes will count as one contact hour.
(3) Individual segments at continuous conferences, conventions and
the like will be considered one total program. For example, two
90-minute segments (180 minutes) at a continuous conference will count
as three contact hours.
(4) For university or college courses, each semester hour credit will
equal 15 contact hours and a quarter hour credit will equal 10 contact
hours.
(i) Recordkeeping requirements. (1) Each individual applying for
renewal shall retain for a period of three years following the date of
renewal of enrollment the information required with regard to qualifying
continuing professional education credit hours. Such information shall
include:
(i) The name of the sponsoring organization;
(ii) The location of the program;
(iii) The title of the program and description of its content e.g.,
course syllibi and/or textbook;
(iv) The dates attended;
(v) The credit hours claimed;
(vi) The name(s) of the instructor(s), discussion leader(s), or
speaker(s), if appropriate; and
(vii) The certificate of completion and/or signed statement of the
hours of attendance obtained from the sponsor.
(2) To receive continuing education credit for service completed as
an instructor, discussion leader, or speaker, the following information
must be maintained for a period of three years following the date of
renewal of enrollment:
(i) The name of the sponsoring organization;
(ii) The location of the program;
(iii) The title of the program and description of its content;
(iv) The dates of the program; and
(v) The credit hours claimed.
(3) To receive continuing education credit for publications, the
following information must be maintained for a period of three years
following the date of renewal of enrollment:
(i) The publisher;
(ii) The title of the publication;
(iii) A copy of the publication; and
(iv) The date of publication.
(j) Waivers. (1) Waiver from the continuing education requirements
for a given period may be granted by the Director of Practice for the
following reasons:
(i) Health, which prevented compliance with the continuing education
requirements;
(ii) Extended active military duty;
(iii) Absence from the United States for an extended period of time
due to employment or other reasons, provided the individual does not
practice before the Internal Revenue Service during such absence; and
(iv) Other compelling reasons, which will be considered on a
case-by-case basis.
(2) A request for waiver must be accompanied by appropriate
documentation. The individual will be required to furnish any
additional documentation or explanation deemed necessary by the Director
of Practice. Examples of appropriate documentation could be a medical
certificate, military orders, etc.
(3) A request for waiver must be filed no later than the last day of
the renewal application period.
(4) If a request for waiver is not approved, the individual will be
so notified by the Director of Practice and placed on a roster of
inactive enrolled individuals.
(5) If a request for waiver is approved, the individual will be so
notified and issued a card evidencing such renewal.
(6) Those who are granted waivers are required to file timely
applications for renewal of enrollment.
(k) Failure to comply. (1) Compliance by an individual with the
requirements of this part shall be determined by the Director of
Practice. An individual who fails to meet the requirements of
eligibility for renewal of enrollment will be notified by the Director
of Practice at his/her last known address by first class mail. The
notice will state the basis for the non-compliance and will provide the
individual an opportunity to furnish in writing information relating to
the matter within 60 days of the date of the notice. Such information
will be considered by the Director of Practice in making a final
determination as to eligibility for renewal of enrollment.
(2) The Director of Practice may require any individual, by first
class mail to his/her last known mailing address, to provide copies of
any records required to be maintained under this part. The Director of
Practice may disallow any continuing professional education hours
claimed if the individual concerned fails to comply with such
requirement.
(3) An individual who has not filed a timely application for renewal
of enrollment, who has not made a timely response to the notice of
non-compliance with the renewal requirements, or who has not satisfied
the requirements of eligibility for renewal will be placed on a roster
of inactive enrolled individuals for a period of three years. During
this time, the individual will be ineligible to practice before the
Internal Revenue Service.
(4) During inactive enrollment status or at any other time an
individual is ineligible to practice before the Internal Revenue
Service, such individual shall not in any manner, directly or
indirectly, indicate he or she is enrolled to practice before the
Internal Revenue Service, or use the term ''enrolled agent,'' the
designation ''E. A.,'' or other form of reference to eligibility to
practice before the Internal Revenue Service.
(5) An individual placed in an inactive status may satisfy the
requirements for renewal of enrollment during his/her period of inactive
enrollment. If such satisfaction includes completing the continuing
education requirement, a minimum of 16 hours of qualifying continuing
education hours must be completed in the 12 month period preceding the
date on which the renewal application is filed. Continuing education
credit under this subsection may not be used to satisfy the requirements
of the enrollment cycle in which the individual has been placed back on
the active roster.
(6) An individual placed in an inactive status must file an
application for renewal of enrollment and satisfy the requirements for
renewal as set forth in this section within three years of being placed
in an inactive status. The name of such individual otherwise will be
removed from the inactive enrollment roster and his/her enrollment will
terminate. Eligibility for enrollment must then be reestablished by the
individual as provided in this part.
(7) Inactive enrollment status is not available to an individual who
is the subject of a discipline matter in the Office of Director of
Practice.
(l) Inactive retirement status. An individual who no longer
practices before the Internal Revenue Service may request being placed
in an inactive status at any time and such individual will be placed in
an inactive retirement status. The individual will be ineligible to
practice before the Internal Revenue Service. Such individual must file
a timely application for renewal of enrollment at each applicable
renewal or enrollment as provided in this part. An individual who is
placed in an inactive retirement status may be reinstated to an active
enrollment status upon filing an application for renewal of enrollment
and providing evidence of the completion of the required continuing
professional education hours for the enrollment cycle. Inactive
retirement status is not available to an individual who is the subject
to a discipline matter in the Office of Director of Practice.
(m) Renewal while under suspension or disbarment. An individual who
is ineligible to practice before the Internal Revenue Service by virtue
of disciplinary action is required to meet the requirements for renewal
of enrollment during the period of ineligibility.
(n) Verification. The Director of Practice may review the continuing
education records of an enrolled individual and/or qualified sponsor in
a manner deemed appropriate to determine compliance with the
requirements and standards for renewal of enrollment as provided in this
part.
(Approved by the Office of Management and Budget under control number
1545-0946)
(51 FR 2878, Jan. 22, 1986)
31 CFR 10.7 Limited practice; special appearances; return preparation
and furnishing information.
(a) In general. Individuals may appear on their own behalf and may
otherwise appear without enrollment, provided they present satisfactory
identification, in the following classes of cases:
(1) An individual may represent another individual who is his regular
full-time employer, may represent a partnership of which he is a member
or a regular full-time employee, or may represent without compensation a
member of his immediate family.
(2) Corporations (including parents, subsidiaries or affiliated
corporations), trust, estates, associations, or organized groups may be
represented by bona fide officers or regular full-time employees.
(3) Trusts, receiverships, guardianships, or estates may be
represented by their trustees, receivers, guardians, administrators or
executors or their regular full-time employees.
(4) Any governmental unit, agency, or authority may be represented by
an officer or regular employee in the course of his official duties.
(5) Unenrolled persons may participate in rule making as provided by
section 4 of the Administrative Procedure Act, 60 Stat. 238 (5 U.S.C.
1003).
(6) Enrollment is not required for representation outside of the
United States before personnel of the Internal Revenue Service.
(7) Any individual who is not under disbarment or suspension from
practice before the Internal Revenue Service or other practice of his
profession by any other authority (in the case of attorneys, certified
public accountants, and public accountants) and who signs a return as
having prepared it for the taxpayer, or who prepared a return with
respect to which the instructions or regulations do not require that it
be signed by the person who prepared the return for the taxpayer, may
appear without enrollment as the taxpayer's representative, with or
without the taxpayer, before revenue agents and examining officers of
the Audit Division in the offices of District Directors (but not at the
District Conference in a District Director's office) with respect to the
tax liability of the taxpayer for the taxable year or period covered by
that return. Proper authorization from the taxpayer will be required.
All such persons will be subject to such rules regarding standards of
conduct, the extent of their authority, and other matters as the
Director of Practice of Internal Revenue shall prescribe. Such persons
will be permitted to represent taxpayers within those limits without
enrollment, except that the Director of Practice may deny permission to
engage in such limited practice to any person who has engaged in conduct
which would justify suspension or disbarment of any attorney, certified
public accountant, or enrolled agent under the provisions of this part.
(b) Special appearance. The Director of Practice, subject to such
conditions as he deems appropriate, may authorize any person to
represent another without enrollment for the purpose of a particular
matter.
(c) Preparation of tax returns and furnishing information. Any
person may prepare a tax return, may appear as a witness for the
taxpayer before the Internal Revenue Service, or furnish information at
the request of the Internal Revenue Service or any of its officers or
employees.
(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 U.S.C.
301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR
4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19,
1970; 49 FR 6722, Feb. 23, 1984; 51 FR 2878, Jan. 22, 1985)
31 CFR 10.8 Customhouse brokers.
Nothing contained in the regulations in this part shall be deemed to
affect or limit the right of a customhouse broker, licensed as such by
the Commissioner of Customs in accordance with the regulations
prescribed therefor, in any customs district in which he is so licensed,
at the office of the District Director of Internal Revenue or before the
National Office of the Internal Revenue Service, to act as a
representative in respect to any matters relating specifically to the
importation or exportation of merchandise under the customs or internal
revenue laws, for any person for whom he has acted as a customhouse
broker.
31 CFR 10.8 Subpart B -- Duties and Restrictions Relating to Practice Before the Internal Revenue Service
31 CFR 10.20 Information to be furnished.
(a) To the Internal Revenue Service. No attorney, certified public
accountant, or enrolled agent shall neglect or refuse promptly to submit
records or information in any matter before the Internal Revenue
Service, upon proper and lawful request by a duly authorized officer or
employee of the Internal Revenue Service, or shall interfere, or attempt
to interfere, with any proper and lawful effort by the Internal Revenue
Service or its officers or employees to obtain any such record or
information, unless he believes in good faith and on reasonable grounds
that such record or information is privileged or that the request for,
or effort to obtain, such record or information is of doubtful legality.
(b) To the Director of Practice. It shall be the duty of an attorney
or certified public accountant, who practices before the Internal
Revenue Service, or enrolled agent, when requested by the Director of
Practice, to provide the Director with any information he may have
concerning violation of the regulations in this part by any person, and
to testify thereto in any proceeding instituted under this part for the
disbarment or suspension of an attorney, certified public accountant, or
enrolled agent, unless he believes in good faith and on reasonable
grounds that such information is privileged or that the request therefor
is of doubtful legality.
31 CFR 10.21 Knowledge of client's omission.
Each attorney, certified public accountant, or enrolled agent who,
having been retained by a client with respect to a matter administered
by the Internal Revenue Service, knows that the client has not complied
with the revenue laws of the United States or has made an error in or
omission from any return, document, affidavit, or other paper which the
client is required by the revenue laws of the United States to execute,
shall advise the client promptly of the fact of such noncompliance,
error, or omission.
(42 FR 38352, July 28, 1977)
31 CFR 10.22 Diligence as to accuracy.
Each attorney, certified public accountant, or enrolled agent shall
exercise due diligence:
(a) In preparing or assisting in the preparation of, approving, and
filing returns, documents, affidavits, and other papers relating to
Internal Revenue Service matters;
(b) In determining the correctness of oral or written representations
made by him to the Department of the Treasury; and
(c) In determining the correctness of oral or written representations
made by him to clients with reference to any matter administered by the
Internal Revenue Service.
(35 FR 13205, Aug. 19, 1970, as amended at 42 FR 38352, July 28,
1977)
31 CFR 10.23 Prompt disposition of pending matters.
No attorney, certified public accountant, or enrolled agent shall
unreasonably delay the prompt disposition of any matter before the
Internal Revenue Service.
31 CFR 10.24 Assistance from disbarred or suspended persons and former
Internal Revenue Service employees.
No attorney, certified public accountant or enrolled agent shall, in
practice before the Internal Revenue Service, knowingly and directly or
indirectly:
(a) Employ or accept assistance from any person who is under
disbarment or suspension from practice before the Internal Revenue
Service.
(b) Accept employment as associate, correspondent, or subagent from,
or share fees with, any such person.
(c) Accept assistance from any former government employee where the
provisions of 10.26 of these regulations or any Federal law would be
violated.
(44 FR 4943, Jan. 24, 1979)
31 CFR 10.25 Practice by partners of Government employees.
No partner of an officer or employee of the executive branch of the
U.S. Government, of any independent agency of the United States, or of
the District of Columbia, shall represent anyone in any matter
administered by the Internal Revenue Service in which such officer or
employee of the Government participates or has participated personally
and substantially as a Government employee or which is the subject of
his official responsibility.
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19,
1970)
31 CFR 10.26 Practice by former Government employees, their partners
and their associates.
(a) Definitions. For purposes of 10.26. (1) Assist means to act in
such a way as to advise, furnish information to or otherwise aid another
person, directly of indirectly.
(2) Government employee is an officer or employee of the United
States or any agency of the United States, including a ''special
government employee'' as defined in 18 U.S.C. 202(a), or of the District
of Columbia, or of any State, or a member of Congress or of any State
legislature.
(3) Member of a firm is a sole practioner or an employee or associate
thereof, or a partner, stockholder, associate, affiliate or employee of
a partnership, joint venture, corporation, professional association or
other affiliation of two or more practitioners who represent
non-Government parties.
(4) Practitioner is an attorney, certified public accountant,
enrolled agent or any other person authorized to practice before the
Internal Revenue Service.
(5) Official responsibility means the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and either personally or through
subordinates, to approve, disapprove, or otherwise direct Government
action, with or without knowledge of the action.
(6) Participate or participation means substantial involvement as a
Government employee by making decisions, or preparing or reviewing
documents with or without the right to exercise a judgment of approval
or disapproval, or participating in conferences or investigations, or
rendering advice of a substantial nature.
(7) Rule includes Treasury Regulations, whether issued or under
preparation for issuance as Notices of Proposed Rule Making or as
Treasury Decisions, and revenue rulings and revenue procedures published
in the Internal Revenue bulletin. ''Rule'' shall not include a
''transaction'' as defined in paragraph (a)(9) of this section.
(8) Transaction means any decision, determination, finding, letter
ruling, technical advice, contract or approval or disapproval thereof,
relating to a particular factual situation or situations involving a
specific party or parties whose rights, privileges, or liabilities under
laws or regulations administered by the Internal Revenue Service, or
other legal rights, are determined or immediately affected therein and
to which the United States is a party or in which it has a direct and
substantial interest, whether or not the same taxable periods are
involved. ''Transaction'' does not include ''rule'' as defined in
paragraph (a)(7) of this section.
(b) General rules. (1) No former Government employee shall,
subsequent to his Government employment, represent anyone in any matter
administered by the Internal Revenue Service if the representation would
violate 18 U.S.C. 207 (a) or (b) of any other laws of the United States.
(2) No former Government employee who participated in a transaction
shall, subsequent to his Government employment, represent or knowingly
assist, in that transaction, any person who is or was a specific party
to that transaction.
(3) No former Government employee who within a period of one year
prior to the termination of his Government employment had official
responsibility for a transaction shall, within one year after his
Government employment is ended, represent or knowingly assist in that
transaction any person who is or was a specific party to that
transaction.
(4) No former Government employee shall, within one year after his
Government employment is ended, appear before any employee of the
Treasury Department in connection with the publication, withdrawal,
amendment, modification, or interpretation of a rule in the development
of which the former Government employee participated or for which,
within a period of one year prior to the termination of his Government
employment, he had official responsibility. However, this subparagraph
does not preclude such former employee for appearing on his own behalf
or from representing a taxpayer before the Internal Revenue Service in
connection with a transaction involving the application or
interpretation of such a rule with respect to that transaction:
Provided, That such former employee shall not utilize or disclose any
confidential information acquired by the former employee in the
development of the rule, and shall not contend that the rule is invalid
or illegal. In addition, this subparagraph does not preclude such
former employee from otherwise advising or acting for any person.
(c) Firm representation. (1) No member of a firm of which a former
Government employee is a member may represent or knowingly assist a
person who was or is a specific party in any transaction with respect to
which the restrictions of paragraph (b)(1) (other than 18 U.S.C. 207
(b)) or (b)(2) of this section apply to the former Government employee,
in that transaction, unless:
(i) No member of the firm who had knowledge of the participation by
the Government employee in the transaction initiated discussions with
the Government employee concerning his becoming a member of the firm
until his Government employment is ended or six months after the
termination of his participation in the transaction, whichever is
earlier;
(ii) The former Government employee did not initiate any discussions
concerning becoming a member of the firm while participating in the
transaction or, if such discussions were intitiated, they conformed with
the requirements of 18 U.S.C. 208(b); and
(iii) The firm isolates the former Government employee in such a way
that he does not assist in the representation.
(2) No member of a firm of which a former Government employee is a
member may represent or knowingly assist a person who was or is a
specific party in any transaction with respect to which the restrictions
of paragraph (b)(3) of this section apply to the former employee, in
that transaction unless the firm isolates the former Government employee
in such a way that he does not assist in the representation.
(3) When isolation of the former Government employee is required
under paragraph (c)(1) or (c)(2) of this section, a statement affirming
the fact of such isolation shall be executed under oath by the former
Government employee and by a member of the firm acting on behalf of the
firm, and shall be filed with the Director of Practice and in such other
place and in the manner prescribed by regulation. This statement shall
clearly identify the firm, the former Government employee, and the
transaction or transactions requiring such isolation.
(d) Pending representation. Practice by former Government employees,
their partners and associates with respect to representation in specific
matters where actual representation commenced before publication of this
regulation is governed by the regulations set forth in the June 1972
amendments to the regulations of this part (published at 37 FR 11676):
Provided, That the burden of showing that representation commenced
before publication is with the former Government employees, their
partners and associates.
(42 FR 38352, July 28, 1977)
31 CFR 10.27 Notaries.
No attorney, certified public accountant, or enrolled agent as notary
public shall with respect to any matter administered by the Internal
Revenue Service take acknowledgments, administer oaths, certify papers,
or perform any official act in connection with matters in which he is
employed as counsel, attorney, or agent, or in which he may be in any
way interested before the Internal Revenue Service (26 Op. Atty. Gen.
236).
31 CFR 10.28 Fees.
No attorney, certified public accountant, or enrolled agent shall
charge an unconscionable fee for representation of a client in any
matter before the Internal Revenue Service.
31 CFR 10.29 Conflicting interests.
No attorney, certified public accountant, or enrolled agent shall
represent conflicting interests in his practice before the Internal
Revenue Service, except by express consent of all directly interested
parties after full disclosure has been made.
31 CFR 10.30 Solicitation.
(a) Advertising and solicitation restrictions. (1) No attorney,
certified public accountant, enrolled agent, or other individual
eligible to practice before the Internal Revenue Service shall, with
respect to any Internal Revenue Service matter, in any way use or
participate in the use of any form of public communication containing a
false, fraudulent, misleading, deceptive, unduly influencing, coercive
or unfair statement or claim. For the purposes of this subsection, the
prohibition includes, but is not limited to, statements pertaining to
the quality of services rendered unless subject to factual verification,
claims of specialized expertise not authorized by State or Federal
agencies having jurisdiction over the practioner, and statements or
suggestions that the ingenuity and/or prior record of a representative
rather than the merit of the matter are principal factors likely to
determine the result of the matter.
(2) No attorney, certified public accountant, enrolled agent or other
individual eligible to practice before the Internal Revenue Service
shall make, directly or indirectly, an uninvited solicitation of
employment, in matters related to the Internal Revenue Service.
Solicitation includes, but is not limited to, in-person contacts,
telephone communications, and personal mailings directed to the specific
circumstances unique to the recipient. This restriction does not apply
to: (i) Seeking new business from an existing or former client in a
related matter; (ii) solicitation by mailings, the contents of which
are designed for the general public; or (iii) non-coercive in-person
solicitation by those eligible to practice before the Internal Revenue
Service while acting as an employee, member, or officer of an exempt
organization listed in sections 501(c) (3) or (4) of the Internal
Revenue Code of 1954 (26 U.S.C.).
(b) Permissible advertising. (1) Attorneys, certified public
accountants, enrolled agents and other individuals eligible to practice
before the Internal Revenue Service, may publish, broadcast, or use in a
dignified manner through any means of communication set forth in
paragraph (d) of this section:
(i) The name, address, telephone number, and office hours of the
practitioner or firm.
(ii) The names of individuals associated with the firm.
(iii) A factual description of the services offered.
(iv) Acceptable credit cards and other credit arrangements.
(v) Foreign language ability.
(vi) Membership in pertinent, professional organizations.
(vii) Pertinent professional licenses.
(viii) A statement that an individual's or firm's practice is limited
to certain areas.
(ix) In the case of an enrolled agent, the phrase ''enrolled to
represent taxpayers before the Internal Revenue Service'' or ''enrolled
to practice before the Internal Revenue Service.''
(x) Other facts relevant to the selection of a practitioner in
matters related to the Internal Revenue Service which are not prohibited
by these regulations.
(2) Attorneys, certified public accountants, enrolled agents and
other individuals eligible to practice before the Internal Revenue
Service may use, to the extent they are consistent with the regulations
in this section, customary biographical insertions in approved law lists
and reputable professional journals and directories, as well as
professional cards, letterheads and announcements: Provided, That: (i)
Attorneys do not violate applicable standards of ethical conduct adopted
by the American Bar Association, (ii) certified public accountants do
not violate applicable standards of ethical conduct adopted by the
American Institute of Certified Public Accountants, and (iii) enrolled
agents do not violate applicable standards of ethical conduct adopted by
either the National Society of Public Accountants or the National
Association of Enrolled Agents.
(c) Fee information. (1) Attorneys, certified public accountants,
enrolled agents and other individuals eligible to practice before the
Internal Revenue Service may disseminate the following fee information:
(i) Fixed fees for specific routine services.
(ii) Hourly rates.
(iii) Range of fees for particular services.
(iv) Fee charged for an initial consultation.
(2) Attorneys, certified public accountants, enrolled agents and
other individuals eligible to practice before the Internal Revenue
Service may also publish the availability of a written schedule of fees.
(3) Attorneys, certified public accountants, enrolled agents and
other individuals eligible to practice before the Internal Revenue
Service shall be bound to charge the hourly rate, the fixed fee for
specific routine services, the range of fees for particular services, or
the fee for an initial consultation published for a reasonable period of
time, but no less than thirty days from the last publication of such
hourly rate or fees.
(d) Communications. Communications, including fee information, shall
be limited to professional lists, telephone directories, print media,
permissible mailings as provided in these regulations, radio and
television. In the case of radio and television broadcasting, the
broadcast shall be pre-recorded and the practitioner shall retain a
recording of the actual audio transmission.
(e) Improper associations. An attorney, certified public accountant
or enrolled agent may, in matters related to the Internal Revenue
Service, employ or accept employment or assistance as an associate,
correspondent, or subagent from, or share fees with, any person or
entity who, to the knowledge of the practitioner, obtains clients or
otherwise practices in a manner forbidden under this section: Provided,
That a practitioner does not, directly or indirectly, act or hold
himself out as an Internal Revenue Service practitioner in connection
with that relationship. Nothing herein shall prohibit an attorney,
certified public accountant, or enrolled agent from practice before the
Internal Revenue Service in a capacity other than that described above.
(44 FR 4943, Jan. 24, 1979)
31 CFR 10.31 Negotiation of taxpayer refund checks.
No attorney, certified public accountant or enrolled agent who is an
income tax return preparer shall endorse or otherwise negotiate any
check made in respect of income taxes which is issued to a taxpayer
other than the attorney, certified public accountant or enrolled agent.
(42 FR 38353, July 28, 1977)
31 CFR 10.32 Practice of law.
Nothing in the regulations in this part shall be construed as
authorizing persons not members of the bar to practice law.
(31 FR 10773, Aug. 13, 1966. Redesignated at 42 FR 38353, July 28,
1977)
31 CFR 10.33 Tax shelter opinions.
(a) Tax shelter opinions and offering materials. A practitioner who
provides a tax shelter opinion analyzing the Federal tax effects of a
tax shelter investment shall comply with each of the following
requirements:
(1) Factual matters. (i) The practitioner must make inquiry as to
all relevant facts, be satisfied that the material facts are accurately
and completely described in the offering materials, and assure that any
representations as to future activities are clearly identified,
reasonable and complete.
(ii) A practitioner may not accept as true asserted facts pertaining
to the tax shelter which he/she should not, based on his/her background
and knowledge, reasonably believe to be true. However, a practitioner
need not conduct an audit or independent verification of the asserted
facts, or assume that a client's statement of the facts cannot be relied
upon, unless he/she has reason to believe that any relevant facts
asserted to him/her are untrue.
(iii) If the fair market value of property or the expected financial
performance of an investment is relevant to the tax shelter, a
practitioner may not accept an appraisal or financial projection as
support for the matters claimed therein unless:
(A) The appraisal or financial projection makes sense on its face;
(B) The practitioner reasonably believes that the person making the
appraisal or financial projection is competent to do so and is not of
dubious reputation; and
(C) The appraisal is based on the definition of fair market value
prescribed under the relevant Federal tax provisions.
(iv) If the fair market value of purchased property is to be
established by reference to its stated purchase price, the practitioner
must examine the terms and conditions upon which the property was (or is
to be) purchased to determine whether the stated purchase price
reasonably may be considered to be its fair market value.
(2) Relate law to facts. The practitioner must relate the law to the
actual facts and, when addressing issues based on future activities,
clearly identify what facts are assumed.
(3) Identification of material issues. The practitioner must
ascertain that all material Federal tax issues have been considered, and
that all of those issues which involve the reasonable possibility of a
challenge by the Internal Revenue Service have been fully and fairly
addressed in the offering materials.
(4) Opinion on each material issue. Where possible, the practitioner
must provide an opinion whether it is more likely than not that an
investor will prevail on the merits of each material tax issue presented
by the offering which involves a reasonable possibility of a challenge
by the Internal Revenue Service. Where such an opinion cannot be given
with respect to any material tax issue, the opinion should fully
describe the reasons for the practitioner's inability to opine as to the
likely outcome.
(5) Overall evaluation. (i) Where possible, the practitioner must
provide an overall evaluation whether the material tax benefits in the
aggregate more likely than not will be realized. Where such an overall
evaluation cannot be given, the opinion should fully describe the
reasons for the practitioner's inability to make an overall evaluation.
Opinions concluding that an overall evaluation cannot be provided will
be given special scrutiny to determine if the stated reasons are
adequate.
(ii) A favorable overall evaluation may not be rendered unless it is
based on a conclusion that substantially more than half of the material
tax benefits, in terms of their financial impact on a typical investor,
more likely than not will be realized if challenged by the Internal
Revenue Service.
(iii) If it is not possible to give an overall evaluation, or if the
overall evaluation is that the material tax benefits in the aggregate
will not be realized, the fact that the practitioner's opinion does not
constitute a favorable overall evaluation, or that it is an unfavorable
overall evaluation, must be clearly and prominently disclosed in the
offering materials.
(iv) The following examples illustrate the principles of this
paragraph:
Example (1). A limited partnership acquires real property in a
sale-leaseback transaction. The principal tax benefits offered to
investing partners consist of depreciation and interest deductions.
Lesser tax benefits are offered to investors by reason of several
deductions under Internal Revenue Code section 162 (ordinary and
necessary business expenses). If a practitioner concludes that it is
more likely than not that the partnership will not be treated as the
owner of the property for tax purposes (which is required to allow the
interest and depreciation deductions), then he/she may not opine to the
effect that it is more likely than not that the material tax benefits in
the aggregate will be realized, regardless of whether favorable opinions
may be given with respect to the deductions claimed under Code section
162.
Example (2). A corporation electing under subchapter S of the
Internal Revenue Code is formed to engage in research and development
activities. The offering materials forecast that deductions for
research and experimental expenditures equal to 75% of the total
investment in the corporation will be available during the first two
years of the corporation's operations, other expenses will account for
another 15% of the total investment, and that little or no gross income
will be received by the corporation during this period. The
practitioner concludes that it is more likely than not that deductions
for research and experimental expenditures will be allowable. The
practitioner may render an opinion to the effect that based on this
conclusion, it is more likely than not that the material tax benefits in
the aggregate will be realized, regardless of whether he/she can opine
that it is more likely than not that any of the other tax benefits will
be achieved.
Example (3). An investment program is established to acquire
offsetting positions in commodities contracts. The objective of the
program is to close the loss positions in year one and to close the
profit positions in year two. The principal tax benefit offered by the
program is a loss in the first year, coupled with the deferral of
offsetting gain until the following year. The practitioner concludes
that the losses will not be deductible in year one. Accordingly, he/she
may not render an opinion to the effect that it is more likely than not
that the material tax benefits in the aggregate will be realized,
regardless of the fact that he/she is of the opinion that losses not
allowable in year one will be allowable in year two, because the
principal tax benefit offered is a one-year deferral of income.
Example (4). A limited partnership is formed to acquire, own and
operate residential rental real estate. The offering material forecasts
gross income of $2,000,000 and total deductions of $10,000,000,
resulting in net losses of $8,000,000 over the first six taxable years.
Of the total deductions, depreciation and interest are projected to be
$7,000,000, and other deductions $3,000,000. The practitioner concludes
that it is more likely than not that all of the depreciation and
interest deductions will be allowable, and that it is more likely than
not that the other deductions will not be allowed. The practitioner may
render an opinion to the efect that it is more likely than not that the
material tax benefits in the aggregate will be realized.
(6) Description of opinion. The practitioner must assure that the
offering materials correctly and fairly represent the nature and extent
of the tax shelter opinion.
(b) Reliance on other opinions -- (1) In general. A practitioner may
provide an opinion on less than all of the material tax issues only if:
(i) At least one other competent practitioner provides an opinion on
the likely outcome with respect to all of the other material tax issues
which involve a reasonable possibility of challenge by the Internal
Revenue Service, and an overall evalution whether the material tax
benefits in the aggregate more likely than not will be realized, which
is disseminated in the same manner as the practitioner's opinion; and
(ii) The practitioner, upon reviewing such other opinions and any
offering materials, has no reason to believe that the standards of
paragraph (a) of this section have not been complied with.
Notwithstanding the foregoing, a practitioner who has not been
retained to provide an overall evaluation whether the material tax
benefits in the aggregate more likely than not will be realized may
issue an opinion on less than all the material tax issues only if he/she
has no reason to believe, based on his/her knowledge and experience,
that the overall evaluation given by the practitioner who furnishes the
overall evaluation is incorrect on its face.
(2) Forecasts and projections. A practitioner who is associated with
forecasts or projections relating to or based upon the tax consequences
of the tax shelter offering that are included in the offering materials,
or are disseminated to potential investors other than the practitioner's
clients, may rely on the opinion of another practitioner as to any or
all material tax issues, provided that the practitioner who desires to
rely on the other opinion has no reason to believe that the standards of
paragraph (a) of this section have not been complied with by the
practitioner rendering such other opinion, and the requirements of
paragraph (b)(1) of this section are satisfied. The practitioner's
report shall disclose any material tax issue not covered by, or
incorrectly opined upon, by the other opinion, and shall set forth
his/her opinion with respect to each such issue in a manner that
satisfies the requirements of paragraph (a) of this section.
(c) Definitions. For purposes of this section:
(1) Practitioner is any person authorized under 10.3 of this part to
practice before the Internal Revenue Service.
(2) A tax shelter, as the term is used in this section, is an
investment which has as a significant and intended feature for Federal
income or excise tax purposes either of the following attributes:
(i) Deductions in excess of income from the investment being
available in any year to reduce income from other sources in that year,
or
(ii) Credits in excess of the tax attributable to the income from the
investment being available in any year to offset taxes on income from
other sources in that year. Excluded from the term are municipal bonds;
annuities; family trusts (but not including schemes or arrangements
that are marketed to the public other than in a direct
practitioner-client relationship); qualified retirement plans;
individual retirement accounts; stock option plans; securities issued
in a corporate reorganization; mineral development ventures, if the
only tax benefit would be percentage depletion; and real estate where
it is anticipated that in no year is it likely that deductions will
exceed gross income from the investment in that year, or that tax
credits will exceed the tax attributable to gross income from the
investment in that year. Whether an investment is intended to have tax
shelter features depends on the objective facts and circumstances of
each case. Significant weight will be given to the features described
in the offering materials to determine whether the investment is a tax
shelter.
(3) A tax shelter opinion, as the term is used in this section, is
advice by a practitioner concerning the Federal tax aspects of a tax
shelter either appearing or referred to in the offering materials, or
used or referred to in connection with sales promotion efforts, and
directed to persons other than the client who engaged the practitioner
to give the advice. The term includes the tax aspects or tax risks
portion of the offering materials prepared by or at the direction of a
practitioner, whether or not a separate opinion letter is issued or
whether or not the practitioner's name is referred to in the offering
materials or in connection with the sales promotion efforts. In
addition, a financial forcast or projection prepared by a practitioner
is a tax shelter opinion if it is predicated on assumptions regarding
Federal tax aspects of the investment, and it meets the other
requirements of the first sentence of this paragraph. The term does
not, however, include rendering advice solely to the offeror or
reviewing parts of the offering materials, so long as neither the name
of the practitioner, nor the fact that a practitioner has rendered
advice concerning the tax aspects, is referred to in the offering
materials or in connection with the sales promotion efforts.
(4) A material tax issue as the term is used in this section is
(i) Any Federal income or excise tax issue relating to a tax shelter
that would make a significant contribution toward sheltering from
Federal taxes income from other sources by providing deductions in
excess of the income from the tax shelter investment in any year, or tax
credits available to offset tax liabilities in excess of the tax
attributable to the tax shelter investment in any year;
(ii) Any other Federal income or excise tax issue relating to a tax
shelter that could have a significant impact (either benefical or
adverse) on a tax shelter investor under any reasonably foreseeable
circumstances (e.g., depreciation or investment tax credit recapture,
availability of long-term capital gain treatment, or realization of
taxable income in excess of cash flow, upon sale or other disposition of
the tax shelter investment); and
(iii) The potential applicability of penalties, additions to tax, or
interest charges that reasonably could be asserted against a tax shelter
investor by the Internal Revenue Service with respect to the tax
shelter. The determination of what is material is to be made in good
faith by the practitioner, based on information available at the time
the offering materials are circulated.
(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 U.S.C.
301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR
4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))
(49 FR 6722, Feb. 23, 1984; 49 FR 7116, Feb. 27, 1984)
31 CFR 10.33 Subpart C -- Rules Applicable to Disciplinary Proceedings
31 CFR 10.50 Authority to disbar or suspend.
Pursuant to section 3 of the Act of July 7, 1884, 23 Stat. 258 (31
U.S.C. 1026), the Secretary of the Treasury, after due notice and
opportunity for hearing, may suspend or disbar from practice before the
Internal Revenue Service any attorney, certified public accountant, or
enrolled agent shown to be incompetent, disreputable or who refuses to
comply with the rules and regulations in this part or who shall, with
intent to defraud, in any manner willfully and knowingly deceive,
mislead, or threaten any claimant or prospective claimant, by word,
circular, letter, or by advertisement.
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19,
1970)
31 CFR 10.51 Disreputable conduct.
Disreputable conduct for which an attorney, certified public
accountant, or enrolled agent may be disbarred or suspended from
practice before the Internal Revenue Service includes, but is not
limited to:
(a) Conviction of any criminal offense under the revenue laws of the
United States, or of any offense involving dishonesty, or breach of
trust.
(b) Giving false or misleading information, or participating in any
way in the giving of false or misleading information to the Department
of the Treasury or any officer or employee thereof, or to any tribunal
authorized to pass upon Federal tax matters, in connection with any
matter pending or likely to be pending before them, knowing such
information to be false or misleading. Facts or other matters contained
in testimony, Federal tax returns, financial statements, applications
for enrollment, affidavits, declarations, or any other document or
statement, written or oral, are included in the term ''information.''
(c) Solicitation of employment as prohibited under 10.30, the use of
false or misleading representations with intent to deceive a client or
prospective client in order to procure employment, or intimating that
the practitioner is able improperly to obtain special consideration or
action from the Internal Revenue Service or officer or employee thereof.
(d) Willfully failing to make Federal tax return in violation of the
revenue laws of the United States, or evading, attempting to evade, or
participating in any way in evading or attempting to evade any Federal
tax or payment thereof, knowingly counseling or suggesting to a client
or prospective client an illegal plan to evade Federal taxes or payment
thereof, or concealing assets of himself or another to evade Federal
taxes or payment thereof.
(e) Misappropriation of, or failure properly and promptly to remit
funds received from a client for the purpose of payment of taxes or
other obligations due the United States.
(f) Directly or indirectly attempting to influence, or offering or
agreeing to attempt to influence, the official action of any officer or
employee of the Internal Revenue Service by the use of threats, false
accusations, duress or coercion, by the offer of any special inducement
or promise of advantage or by the bestowing of any gift, favor or thing
of value.
(g) Disbarment or suspension from practice as an attorney, certified
public accountant, public accountant, or actuary by any duly constituted
authority of any State, possession, territory, Commonwealth, the
District of Columbia, any Federal court of record or any Federal agency,
body or board.
(h) Knowingly aiding and abetting another person to practice before
the Internal Revenue Service during a period of suspension, disbarment,
or ineligibility of such other person. Maintaining a partnership for
the practice of law, accountancy, or other related professional service
with a person who is under disbarment from practice before the Service
shall be presumed to be a violation of this provision.
(i) Contemptuous conduct in connection with practice before the
Internal Revenue Service, including the use of abusive language, making
false accusations and statements knowing them to be false, or
circulating or publishing malicious or libelous matter.
(j) Giving a false opinion, knowingly, recklessly, or through gross
incompetence, including an opinion which is intentionally or recklessly
misleading, or a pattern of providing incompetent opinions on questions
arising under the Federal tax laws. False opinions described in this
paragraph include those which reflect or result from a knowing
misstatement of fact or law; from an assertion of a position known to
be unwarranted under existing law; from counseling or assisting in
conduct known to be illegal or fraudulent; from concealment of matters
required by law to be revealed; or from conscious disregard of
information indicating that material facts expressed in the tax opinion
or offering material are false or misleading. For the purpose of this
paragraph, reckless conduct is a highly unreasonable omission or
misrepresentation, involving not merely simple or inexcusable
negligence, but an extreme departure from the standards of ordinary care
that is either known or is so obvious that the competent practitioner
must or should have been aware of it. Gross incompetence includes
conduct that reflects gross indifference, preparation which is grossly
inadequate under the circumstances, and a consistent failure to perform
obligations to the client.
(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 U.S.C.
301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR
4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19,
1970; 42 FR 38353, July 28, 1977; 44 FR 4946, Jan. 24, 1979; 49 FR
6723, Feb. 23, 1984)
31 CFR 10.52 Violation of regulations.
(a) In general. Any attorney, certified public accountant, or
enrolled agent may be disbarred or suspended from practice before the
Internal Revenue Service for willful violation of any of the regulations
contained in this part.
(b) Tax shelter opinions. An attorney, certified public accountant,
enrolled agent or enrolled actuary may be disbarred or suspended from
practice before the Internal Revenue Service for violating any part of
10.33 of this part, if such violation is willfull, reckless or through
gross incompetence (within the meaning of 10.51(j) of this part); or
if the violation is part of a pattern of providing tax shelter opinions
that fail to comply with 10.33 of this part.
(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 U.S.C.
301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR
4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))
(31 FR 10773, Aug. 13, 1966, as amended at 49 FR 6724, Feb. 23, 1984)
31 CFR 10.53 Receipt of information concerning attorneys, certified
public accountants and enrolled agents.
If an officer or employee of the Internal Revenue Service has reason
to believe that an attorney, certified public accountant, or enrolled
agent has violated any provision of this part, or if any such officer or
employee receives information to that effect, he shall promptly make a
written report thereof, which report or a copy thereof shall be
forwarded to the Director of Practice. If any other person has
information of such violations, he may make a report thereof to the
Director of Practice or to any officer or employee of the Internal
Revenue Service.
31 CFR 10.54 Institution of proceeding.
Whenever the Director of Practice has reason to believe that any
attorney, certified public accountant, or enrolled agent has violated
any provision of the laws or regulations governing practice before the
Internal Revenue Service, he may reprimand such person or institute a
proceeding for disbarment or suspension of such person. The proceeding
shall be instituted by a complaint which names the respondent and is
signed by the Director of Practice and filed in his office. Except in
cases of willfulness, or where time, the nature of the proceeding, or
the public interest does not permit, a proceeding will not be instituted
under this section until facts or conduct which may warrant such action
have been called to the attention of the proposed respondent in writing
and he has been accorded opportunity to demonstrate or achieve
compliance with all lawful requirements.
31 CFR 10.55 Conferences.
(a) In general. The Director of Practice may confer with an
attorney, certified public accountant, or enrolled agent concerning
allegations of misconduct irrespective of whether a proceeding for
disbarment or suspension has been instituted against him. If such
conference results in a stipulation in connection with a proceeding in
which such person is the respondent, the stipulation may be entered in
the record at the instance of either party to the proceeding.
(b) Resignation or voluntary suspension. An attorney, certified
public accountant, or enrolled agent, in order to avoid the institution
or conclusion of a disbarment or suspension proceeding, may offer his
consent to suspension from practice before the Internal Revenue Service.
An enrolled agent may also offer his resignation. The Director of
Practice, in his discretion, may accept the offered resignation of an
enrolled agent and may suspend an attorney, certified public accountant,
or enrolled agent in accordance with the consent offered.
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13206, Aug. 19,
1970)
31 CFR 10.56 Contents of complaint.
(a) Charges. A complaint shall give a plain and concise description
of the allegations which constitute the basis for the proceeding. A
complaint shall be deemed sufficient if it fairly informs the respondent
of the charges against him so that he is able to prepare his defense.
(b) Demand for answer. In the complaint, or in a separate paper
attached to the complaint, notification shall be given of the place and
time within which the respondent shall file his answer, which time shall
not be less than 15 days from the date of service of the complaint, and
notice shall be given that a decision by default may be rendered against
the respondent in the event he fails to file his answer as required.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38353, July 28,
1977)
31 CFR 10.57 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon
the respondent by certified mail, or first-class mail as hereinafter
provided; by delivering it to the respondent or his attorney or agent
of record either in person or by leaving it at the office or place of
business of the respondent, attorney or agent; or in any other manner
which has been agreed to by the respondent. Where the service is by
certified mail, the return post office receipt duly signed by or on
behalf of the respondent shall be proof of service. If the certified
matter is not claimed or accepted by the respondent and is returned
undelivered, complete service may be made upon the respondent by mailing
the complaint to him by first-class mail, addressed to him at the
address under which he is enrolled or at the last address known to the
Director of Practice. If service is made upon the respondent or his
attorney or agent of record in person or by leaving the complaint at the
office or place of business of the respondent, attorney or agent, the
verified return by the person making service, setting forth the manner
of service, shall be proof of such service.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served upon an attorney, certified public accountant,
or enrolled agent as provided in paragraph (a) of this section or by
mailing the paper by first-class mail to the respondent at the last
address known to the Director of Practice, or by mailing the paper by
first-class mail to the respondent's attorney or agent of record. Such
mailing shall constitute complete service. Notices may be served upon
the respondent or his attorney or agent of record by telegraph.
(c) Filing of papers. Whenever the filing of a paper is required or
permitted in connection with a disbarment or suspension proceeding, and
the place of filing is not specified by this subpart or by rule or order
of the Administrative Law Judge, the paper shall be filed with the
Director of Practice, Treasury Department, Washington, D.C. 20220. All
papers shall be filed in duplicate.
(Dept. Circ. 230, Rev., 31 FR 10773, Aug. 13, 1966, as amended at 31
FR 13992, Nov. 2, 1966; 42 FR 38354, July 28, 1977)
31 CFR 10.58 Answer.
(a) Filing. The respondent's answer shall be filed in writing within
the time specified in the complaint or notice of institution of the
proceeding, unless on application the time is extended by the Director
of Practice or the Administrative Law Judge. The answer shall be filed
in duplicate with the Director of Practice.
(b) Contents. The answer shall contain a statement of facts which
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint, except that the
respondent shall not deny a material allegation in the complaint which
he knows to be true, or state that he is without sufficient information
to form a belief when in fact he possesses such information. The
respondent may also state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved, and no further
evidence in respect of such allegation need be adduced at a hearing.
Failure to file an answer within the time prescribed in the notice to
the respondent, except as the time for answer is extended by the
Director of Practice or the Administrative Law Judge, shall constitute
an admission of the allegations of the complaint and a waiver of
hearing, and the Examiner may make his decision by default without a
hearing or further procedure.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.59 Supplemental charges.
If it appears that the respondent in his answer, falsely and in bad
faith, denies a material allegation of fact in the complaint or states
that the respondent has no knowledge sufficient to form a belief, when
he in fact possesses such information, or if it appears that the
respondent has knowingly introduced false testimony during proceedings
for his disbarment or suspension, the Director of Practice may thereupon
file supplemental charges against the respondent. Such supplemental
charges may be tried with other charges in the case, provided the
respondent is given due notice thereof and is afforded an opportunity to
prepare a defense thereto.
31 CFR 10.60 Reply to answer.
No reply to the respondent's answer shall be required, and new matter
in the answer shall be deemed to be denied, but the Director of Practice
may file a reply in his discretion or at the request of the
Administrative Law Judge.
(31 FR 10773, Aug. 13, 1966 as amended at 42 FR 38354, July 28, 1977)
31 CFR 10.61 Proof; variance; amendment of pleadings.
In the case of a variance between the allegations in a pleading and
the evidence adduced in support of the pleading, the Examiner may order
or authorize amendment of the pleading to conform to the evidence:
Provided, That the party who would otherwise be prejudiced by the
amendment is given reasonable opportunity to meet the allegations of the
pleading as amended; and the Administrative Law Judge shall make
findings on any issue presented by the pleadings as so amended.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.62 Motions and requests.
Motions and requests may be filed with the Director of Practice or
with the Administrative Law Judge.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.63 Representation.
A respondent or proposed respondent may appear in person or he may be
represented by counsel or other representative who need not be enrolled
to practice before the Internal Revenue Service. The Director may be
represented by an attorney or other employee of the Internal Revenue
Service.
31 CFR 10.64 Administrative Law Judge.
(a) Appointment. An Administrative Law Judge appointed as provided
by 5 U.S.C. 3105 (1966), shall conduct proceedings upon complaints for
the disbarment or suspension of attorneys, certified public accountants,
or enrolled agents.
(b) Powers of Examiner. Among other powers, the Examiner shall have
authority, in connection with any disbarment or suspension proceeding
assigned or referred to him, to do the following:
(1) Administer oaths and affirmations;
(2) Make rulings upon motions and requests, which rulings may not be
appealed from prior to the close of a hearing except, at the discretion
of the Administrative Law Judge, in extraordinary circumstances;
(3) Determine the time and place of hearing and regulate its course
and conduct;
(4) Adopt rules of procedure and modify the same from time to time as
occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and examine
witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the settlement
or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or
appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38353, 38354, July
28, 1977)
31 CFR 10.65 Hearings.
(a) In general. The Administrative Law Judge shall preside at the
hearing on a complaint for the disbarment or suspension of an attorney,
certified public accountant, or enrolled agent. Hearings shall be
stenographically recorded and transcribed and the testimony of witnesses
shall be taken under oath or affirmation. Hearings will be conducted
pursuant to 5 U.S.C. 556 (1966).
(b) Failure to appear. If either party to the proceeding fails to
appear at the hearing, after due notice thereof has been sent to him, he
shall be deemed to have waived the right to a hearing and the
Administrative Law Judge may make his decision against the absent party
by default.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.66 Evidence.
(a) In general. The rules of evidence prevailing in courts of law
and equity are not controlling in hearings on complaints for the
disbarment or suspension of attorneys, certified public accountants, and
enrolled agents. However, the Administrative Law Judge shall exclude
evidence which is irrelevant, immaterial, or unduly repetitious.
(b) Depositions. The deposition of any witness taken pursuant to
10.67 may be admitted.
(c) Proof of documents. Official documents, records, and papers of
the Internal Revenue Service and the Office of Director of Practice
shall be admissible in evidence without the production of an officer or
employee to authenticate them. Any such documents, records, and papers
may be evidenced by a copy attested or identified by an officer or
employee of the Internal Revenue Service or the Treasury Department, as
the case may be.
(d) Exhibits. If any document, record, or other paper is introduced
in evidence as an exhibit, the Administrative Law Judge may authorize
the withdrawal of the exhibit subject to any conditions which he deems
proper.
(e) Objections. Objections to evidence shall be in short form,
stating the grounds of objection relied upon, and the record shall not
include argument thereon, except as ordered by the Administrative Law
Judge. Rulings on such objections shall be a part of the record. No
exception to the ruling is necessary to preserve the rights of the
parties.
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13206, Aug. 19,
1970; 42 FR 38354, July 28, 1977)
31 CFR 10.67 Depositions.
Depositions for use at a hearing may, with the written approval of
the Administrative Law Judge be taken by either the Director of Practice
or the respondent or their duly authorized representatives. Depositions
may be taken upon oral or written interrogatories, upon not less than 10
days' written notice to the other party before any officer duly
authorized to administer an oath for general purposes or before an
officer or employee of the Internal Revenue Service who is authorized to
administer an oath in internal revenue matters. Such notice shall state
the names of the witnesses and the time and place where the depositions
are to be taken. The requirement of 10 days' notice may be waived by
the parties in writing, and depositions may then be taken from the
persons and at the times and places mutually agreed to by the parties.
When a deposition is taken upon written interrogatories, any
cross-examination shall be upon written interrogatories. Copies of such
written interrogatories shall be served upon the other party with the
notice, and copies of any written cross-interrogation shall be mailed or
delivered to the opposing party at least 5 days before the date of
taking the depositions, unless the parties mutually agree otherwise. A
party upon whose behalf a deposition is taken must file it with the
Administrative Law Judge and serve one copy upon the opposing party.
Expenses in the reporting of depositions shall be borne by the party at
whose instance the deposition is taken.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.68 Transcript.
In cases where the hearing is stenographically reported by a
Government contract reported, copies of the transcript may be obtained
from the reporter at rates not to exceed the maximum rates fixed by
contract between the Government and the reporter. Where the hearing is
stenographically reported by a regular employee of the Internal Revenue
Service, a copy thereof will be supplied to the respondent either
without charge or upon the payment of a reasonable fee. Copies of
exhibits introduced at the hearing or at the taking or depositions will
be supplied to the parties upon the payment of a reasonable fee (Sec.
501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a)).
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.69 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the
complaint or where a party has failed to appear at the hearing, the
Administrative Law Judge prior to making his decision, shall afford the
parties a reasonable opportunity to submit proposed findings and
conclusions and supporting reasons therefor.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.70 Decision of the Administrative Law Judge.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the Administrative Law Judge shall make the initial decision in
the case. The decision shall include (a) a statement of findings and
conclusions, as well as the reasons or basis therefor, upon all the
material issues of fact, law, or discretion presented on the record, and
(b) an order of disbarment, suspension, or reprimand or an order of
dismissal of the complaint. The Administrative Law Judge shall file the
decision with the Director of Practice and shall transmit a copy thereof
to the respondent or his attorney of record. In the absence of an
appeal to the Secretary of the Treasury, or review of the decision upon
motion of the Secretary, the decision of the Administrative Law Judge
shall without further proceedings become the decisions of the Secretary
of the Treasury 30 days from the date of the Administrative Law Judge's
decision.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.71 Appeal to the Secretary.
Within 30 days from the date of the Administrative Law Judge's
decision, either party may appeal to the Secretary of the Treasury. The
appeal shall be filed with the Director of Practice in duplicate and
shall include exceptions to the decision of the Administrative Law Judge
and supporting reasons for such exceptions. If an appeal is filed by
the Director of Practice, he shall transmit a copy thereof to the
respondent. Within 30 days after receipt of an appeal or copy thereof,
the other party may file a reply brief in duplicate with the Director of
Practice. If the reply brief is filed by the Director, he shall
transmit a copy of it to the respondent. Upon the filing of an appeal
and a reply brief, if any, the Director of Practice shall transmit the
entire record to the Secretary of the Treasury.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.72 Decision of the Secretary.
On appeal from or review of the initial decision of the
Administrative Law Judge, the Secretary of the Treasury will make the
agency decision. In making his decision the Secretary of the Treasury
will review the record or such portions thereof as may be cited by the
parties to permit limiting of the issues. A copy of the Secretary's
decision shall be transmitted to the respondent by the Director of
Practice.
(31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28,
1977)
31 CFR 10.73 Effect of disbarment or suspension; surrender of card.
In case the final order against the respondent is for disbarment, the
respondent shall not thereafter be permitted to practice before the
Internal Revenue Service unless and until authorized to do so by the
Director of Practice pursuant to 10.75. In case the final order against
the respondent is for suspension, the respondent shall not thereafter be
permitted to practice before the Internal Revenue Service during the
period of suspension. If an enrolled agent is disbarred or suspended,
he shall surrender his enrollment card to the Director of Practice for
cancellation, in the case of disbarment, or for retention during the
period of suspension.
31 CFR 10.74 Notice of disbarment or suspension.
Upon the issuance of a final order disbarring or suspending an
attorney, certified public accountant, or enrolled agent, the Director
of Practice shall give notice thereof to appropriate officers and
employees of the Internal Revenue Service and to interested departments
and agencies of the Federal Government. Notice in such manner as the
Director of Practice may determine may be given to the proper
authorities of the State by which the disbarred or suspended person was
licensed to practice as an attorney or accountant.
31 CFR 10.75 Petition for reinstatement.
The Director of Practice may entertain a petition for reinstatement
from any person disbarred from practice before the Internal Revenue
Service after the expiration of 5 years following such disbarment.
Reinstatement may not be granted unless the Director of Practice is
satisfied that the petitioner, thereafter, is not likely to conduct
himself contrary to the regulations in this part, and that granting such
reinstatement would not be contrary to the public interest.
(31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13206, Aug. 19,
1970)
31 CFR 10.76 Advisory committee.
For purposes of advising the Director of Practice whether an
individual may have violated 10.33 of this part, the Director of
Practice is authorized to establish an Advisory Committee, composed of
at least five individuals authorized to practice before the Internal
Revenue Service. Under procedures established by the Director of
Practice, such Advisory Committee shall, at the request of the Director
of Practice, review and make recommendations with regard to alleged
violations of 10.33 of this part.
(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 U.S.C.
301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR
4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))
(49 FR 6724, Feb. 23, 1984)
31 CFR 10.76 Subpart D -- Rules Applicable to Disqualification of
Appraisers
Source: 50 FR 42016, Oct. 17, 1985, unless otherwise noted.
31 CFR 10.77 Authority to disqualify; effect of disqualification.
(a) Authority to disqualify. Pursuant to section 156 of the Deficit
Reduction Act of 1984, 98 Stat. 695, amending 31 U.S.C. 330, the
Secretary of the Treasury, after due notice and opportunity for hearing
may disqualify any appraiser with respect to whom a penalty has been
assessed after July 18, 1984, under section 6701(a) of the Internal
Revenue Code of 1954, as amended (26 U.S.C. 6701(a)).
(b) Effect of disqualification. If any appraiser is disqualified
pursuant to 31 U.S.C. 330 and this subpart:
(1) Appraisals by such appraiser shall not have any probative effect
in any administrative proceeding before the Department of the Treasury
or the Internal Revenue Service; and
(2) Such appraiser shall be barred from presenting evidence or
testimony in any such administrative proceeding. Paragraph (b)(1) of
this section shall apply to appraisals made by such appraiser after the
effective date of disqualification, but shall not apply to appraisals
made by the appraiser on or before such date. Notwithstanding the
foregoing sentence, an appraisal otherwise barred from admission into
evidence pursuant to paragraph (b)(1) of this section may be admitted
into evidence solely for the purpose of determining the taxpayer's
reliance in good faith on such appraisal. Paragraph (b)(2) of this
section shall apply to the presentation of testimony or evidence in any
administrative proceeding after the date of such disqualification,
regardless of whether such testimony or evidence would pertain to an
appraisal made prior to such date.
31 CFR 10.78 Institution of proceeding.
(a) In general. Whenever the Director of Practice is advised or
becomes aware that a penalty has been assessed against an appraiser
under 26 U.S.C. 6701(a), he/she may reprimand such person or institute a
proceeding for disqualification of such appraiser through the filing of
a complaint. Irrespective of whether a proceeding for disqualification
has been instituted against an appraiser, the Director of Practice may
confer with an appraiser against whom such a penalty has been assessed
concerning such penalty.
(b) Voluntary disqualification. In order to avoid the initiation or
conclusion of a disqualification proceeding, an appraiser may offer
his/her consent to disqualification. The Director of Practice, in
his/her discretion, may disqualify an appraiser in accordance with the
consent offered.
31 CFR 10.79 Contents of complaint.
(a) Charges. A proceeding for disqualification of an appraiser shall
be instituted through the filing of a complaint, which shall give a
plain and concise description of the allegations that constitute the
basis for the proceeding. A complaint shall be deemed sufficient if it
refers to the penalty previously imposed on the respondent under section
6701(a) of the Internal Revenue Code of 1954, as amended (26 U.S.C.
6701(a)), and advises him/her of the institution of the proceeding.
(b) Demand for answer. In the complaint, or in a separate paper
attached to the complaint, notification shall be given of the place and
time within which the respondent shall file his/her answer, which time
shall not be less than 15 days from the date of service of the
complaint, and notice shall be given that a decision by default may be
rendered against the respondent in the event there is failure to file an
answer.
31 CFR 10.80 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon
the respondent by certified mail, or first-class mail as hereinafter
provided, by delivering it to the respondent or his/her attorney or
agent of record either in person or by leaving it at the office or place
of business of the respondent, attorney or agent, or in any other manner
that has been agreed to by the respondent. Where the service is by
certified mail, the return post office receipt duly signed by or on
behalf of the respondent shall be proof of service. If the certified
mail is not claimed or accepted by the respondent and is returned
undelivered, complete service may be made by mailing the complaint to
the respondent by first-class mail, addressed to the respondent at the
last address known to the Director of Practice. If service is made upon
the respondent in person or by leaving the complaint at the office or
place of business of the respondent, the verified return by the person
making service, setting forth the manner of service, shall be proof of
such service.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served as provided in paragraph (a) of this section or
by mailing the paper by first-class mail to the respondent at the last
address known to the Director of Practice, or by mailing the paper by
first-class mail to the respondent's attorney or agent of record. Such
mailing shall constitute complete service. Notices may be served upon
the respondent or his/her attorney or agent of record by telegraph.
(c) Filing of papers. Whenever the filing of a paper is required or
permitted in connection with a disqualification proceeding under this
subpart or by rule or order of the Administrative Law Judge, the paper
shall be filed with the Director of Practice, Treasury Department,
Internal Revenue Service, Washington, D.C. 29224. All papers shall be
filed in duplicate.
31 CFR 10.81 Answer.
(a) Filing. The respondent's answer shall be filed in writing within
the time specified in the complaint or notice of institution of the
proceeding, unless on application the time is extended by the Director
of Practice or the Administrative Law Judge. The answer shall be filed
in duplicate with the Director of Practice.
(b) Contents. The answer shall contain a statement of facts that
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint, except that the
respondent shall not deny a material allegation in the complaint that
he/she knows to be true, or state that he/she is without sufficient
information to form a belief when in fact he/she possesses such
information.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved, and no further
evidence in respect of such allegation need be adduced at a hearing.
Failure to file an answer within the time prescribed in the notice to
the respondent, except as the time for answer is extended by the
Director of Practice or the Administrative Law Judge, shall constitute
an admission of the allegations of the complaint and a waiver of
hearing, and the Administrative Law Judge may make his/her decision by
default without a hearing or further procedure.
31 CFR 10.82 Supplemental charges.
If it appears that the respondent in his/her answer, falsely and in
bad faith, denies a material allegation of fact in the complaint or
states that the respondent has no knowledge sufficient to form a belief,
when he/she in fact possesses such information, or if it appears that
the respondent has knowingly introduced false testimony during
proceedings for his/her disqualification, the Director of Practice may
thereupon file supplemental charges against the respondent. Such
supplemental charges may be tried with other charges in the case,
provided the respondent is given due notice thereof and is afforded an
opportunity to prepare a defense thereto.
31 CFR 10.83 Reply to answer.
No reply to the respondent's answer shall be required, and any new
matter in the answer shall be deemed to be denied, but the Director of
Practice may file a reply in his/her discretion or at the request of the
Administrative Law Judge.
31 CFR 10.84 Proof, variance, amendment of pleadings.
In the case of a variance between the allegations in a pleading and
the evidence adduced in support of the pleading, the Administrative Law
Judge may order or authorize amendment of the pleading to conform to the
evidence; provided, that the party who would otherwise be prejudiced by
the amendment is given reasonable opportunity to meet the allegations of
the pleading as amended, and the Administrative Law Judge shall make
findings on any issue presented by the pleadings as so amended.
31 CFR 10.85 Motions and requests.
Motions and requests may be filed with the Director of Practice or
with the Administrative Law Judge.
31 CFR 10.86 Representation.
A respondent may appear in person or may be represented by counsel or
other representative. The Director of Practice may be represented by an
attorney or other employee of the Department of the Treasury.
31 CFR 10.87 Administrative Law Judge.
(a) Appointment. An Administrative Law Judge appointed as provided
by 5 U.S.C. 3105, shall conduct proceedings upon complaints for the
disqualification of appraisers.
(b) Powers of Administrative Law Judge. Among other powers, the
Administrative Law Judge shall have authority, in connection with any
disqualification proceeding assigned or referred to him/her, to do the
following:
(1) Administer oaths and affirmations;
(2) Make rulings upon motions and requests, which rulings may not be
appealed from prior to the close of a hearing except at the discretion
of the Administrative Law Judge, in extraordinary circumstances;
(3) Determine the time and place of hearing and regulate its course
and conduct;
(4) Adopt rules of procedure and modify the same from time to time as
occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and examine
witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the settlement
or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or
appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
31 CFR 10.88 Hearings.
(a) In general. The Administrative Law Judge shall preside at the
hearing on a complaint for the disqualification of an appraiser.
Hearings shall be stenographically recorded and transcribed and the
testimony of witnesses shall be taken under oath or affirmation.
Hearings will be conducted pursuant to 5 U.S.C. 556.
(b) Failure to appear. If either party to the proceeding fails to
appear at the hearing after due notice thereof has been sent to him/her,
the right to a hearing shall be deemed to have been waived and the
Administrative Law Judge may make a decision by default against the
absent party.
31 CFR 10.89 Evidence.
(a) In general. The rules of evidence prevailing in courts of law
and equity are not controlling in hearings on complaints for the
disqualification of appraisers. However, the Administrative Law Judge
shall exclude evidence which is irrelevant, immaterial, or unduly
repetitious.
(b) Depositions. The deposition of any witness taken pursuant to
10.90 may be admitted.
(c) Proof of documents. Official documents, records, and papers of
the Internal Revenue Service or the Department of the Treasury shall be
admissible in evidence without the production of an officer or employee
to authenticate them. Any such documents, records, and papers may be
evidenced by a copy attested or identified by an officer or employee of
the Internal Revenue Service or the Department of the Treasury, as the
case may be.
(d) Exhibits. If any document, record, or other paper is introduced
in evidence as an exhibit, the Administrative Law Judge may authorize
the withdrawal of the exhibit subject to any conditions which he/she
deems proper.
(e) Objections. Objections to evidence shall be in short form,
stating the grounds of objection relied upon, and the record shall not
include argument thereon, except as ordered by the Administrative Law
Judge. Rulings on such objections shall be a part of the record. No
exception to the ruling is necessary to preserve the rights of the
parties.
31 CFR 10.90 Depositions.
Depositions for use at a hearing may, with the written approval of
the Administrative Law Judge, be taken either by the Director of
Practice or the respondent or their duly authorized representatives.
Depositions may be taken upon oral or written interrogatories, upon not
less than 10 days' written notice to the other party before any officer
duly authorized to administer an oath for general purposes or before an
officer or employee of the Internal Revenue Service who is authorized to
administer an oath in internal revenue matters. Such notice shall state
the names of the witnesses and the time and place where the depositions
are to be taken. The requirement of 10 days' notice may be waived by
the parties in writing, and depositions may then be taken from the
persons and at the times and places mutually agreed to by the parties.
When a deposition is taken upon written interrogatories, any
cross-examination shall be upon written interrogatories. Copies of such
written interrogatories shall be served upon the other party with the
notice, and copies of any written cross-interrogation shall be mailed or
delivered to the opposing party at least 5 days before the date of
taking the depositions, unless the parties mutually agree otherwise. A
party upon whose behalf a deposition is taken must file it with the
Administrative Law Judge and serve one copy upon the opposing party.
Expenses in the reporting of depositions shall be borne by the party at
whose instance the deposition is taken.
31 CFR 10.91 Transcript.
In cases where the hearing is stenographically reported by a
Government contract reporter, copies of the transcript may be obtained
from the reporter at rates not to exceed the maximum rates fixed by
contract between the Government and the reporter. Where a hearing is
stenographically reported by a regular employee of the Internal Revenue
Service, a copy thereof will be supplied to the respondent either
without charge or upon the payment of a reasonable fee. Copies of
exhibits introduced at the hearing or at the taking of depositions will
be supplied to the parties upon the payment of a reasonable fee (Sec.
501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a)).
31 CFR 10.92 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the
complaint or where a party has failed to appear at the hearing, the
Administrative Law Judge, prior to making a decision, shall afford the
parties a reasonable opportunity to submit proposed findings and
conclusions and supporting reasons therefor.
31 CFR 10.93 Decision of the Administrative Law Judge.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the Administrative Law Judge shall make the initial decision in
the case. The decision shall include (a) a statement of findings and
conclusions, as well as the reasons or basis therefor, upon all the
material issues of fact, law, or discretion presented on the record, and
(b) an order of disqualification or an order of dismissal of the
complaint. The Administrative Law Judge shall file the decision with
the Director of Practice and shall transmit a copy thereof to the
respondent or his attorney of record. In the absence of an appeal to
the Secretary of the Treasury, or review of the decision upon motion of
the Secretary, the decision of the Administrative Law Judge shall
without further proceedings become the decision of the Secretary of the
Treasury 30 days from the date of the Administrative Law Judge's
decision.
31 CFR 10.94 Appeal to the Secretary.
Within 30 days from the date of the Administrative Law Judge's
decision, either party may appeal such decision to the Secretary of the
Treasury. If an appeal is by the respondent, the appeal shall be filed
with the Director of Practice in duplicate and shall include exceptions
to the decision of the Administrative Law Judge and supporting reasons
for such exceptions. If an appeal is filed by the Director of Practice,
a copy thereof shall be transmitted to the respondent. Within 30 days
after receipt of an appeal or copy thereof, the other party may file a
reply brief in duplicate with the Director of Practice. If the reply
brief is filed by the Director, a copy shall be transmitted to the
respondent. Upon the filing of an appeal and a reply brief, if any, the
Director of Practice shall transmit the entire record to the Secretary
of the Treasury.
31 CFR 10.95 Decision of the Secretary.
On appeal from or review of the initial decision of the
Administrative Law Judge, the Secretary of the Treasury shall make the
agency decision. In making such decision, the Secretary of the Treasury
will review the record or such portions thereof as may be cited by the
parties. A copy of the Secretary's decision shall be transmitted to the
respondent by the Director of Practice.
31 CFR 10.96 Final order.
Upon the issuance of a final order disqualifying an appraiser, the
Director of Practice shall give notice thereof to appropriate officers
and employees of the Internal Revenue Service and to interested
departments and agencies of the Federal Government.
31 CFR 10.97 Petition for reinstatement.
The Director of Practice may entertain a petition for reinstatement
from any disqualified appraiser after the expiration of 5 years
following such disqualification. Reinstatement may not be granted
unless the Director of Practice is satisfied that the petitioner,
thereafter, is not likely to conduct himself/herself contrary to 26
U.S.C. 6701(a), and that granting such reinstatement would not be
contrary to the public interest.
31 CFR 10.97 Subpart E -- General Provisions
31 CFR 10.98 Records.
(a) Availability. There are made available to public inspection at
the Office of Director of Practice the roster of all persons enrolled to
practice, the roster of all persons disbarred or suspended from
practice, and the roster of all disqualified appraisers. Other records
may be disclosed upon specific request, in accordance with the
disclosure regulations of the Internal Revenue Service and the Treasury
Department.
(b) Disciplinary procedures. A request by a practitioner that a
hearing in a disciplinary proceeding concerning him be public, and that
the record thereof be made available for inspection by interested
persons may be granted if agreement is reached by stipulation in advance
to protect from disclosure tax information which is confidential, in
accordance with the applicable statutes and regulations.
(31 FR 10773, Aug. 13, 1966. Redesignated at 50 FR 42016, Oct. 17,
1985, and amended at 50 FR 42018, Oct. 17, 1985)
31 CFR 10.99 Effective date of regulations.
The regulations of this part shall become effective on January 22,
1986 and shall supersede all prior regulations related to this part.
(51 FR 2881, Jan. 22, 1986)
31 CFR 10.100 Saving clause.
Any proceeding for the disbarment or suspension of an attorney,
certified public accountant, or enrolled agent, instituted but not
closed prior to the effective date of these revised regulations, shall
not be affected by such regulations. Any proceeding under this part
based on conduct engaged in prior to the effective date of these
regulations may be instituted subsequent to such effective date.
(50 FR 42019, Oct. 17, 1985)
31 CFR 10.101 Special orders.
The Secretary of the Treasury reserves the power to issue such
special orders as he may deem proper in any cases within the purview of
this part.
(31 FR 10773, Aug. 13, 1966. Redesignated at 50 FR 42016, Oct. 17,
1985)
31 CFR 10.101 PART 11 -- OPERATION OF VENDING STANDS BY THE BLIND ON
FEDERAL PROPERTY UNDER THE CONTROL OF THE TREASURY DEPARTMENT
Sec.
11.1 Purpose.
11.2 Definitions.
11.3 Department policy on permits for vending stands.
11.4 Permits.
11.5 Report on noncompliance with provisions of permit or on other
matters.
11.6 Referral of disagreements and appeals on provisions of permit.
11.7 Bureaus' procedures for assuring preference.
Authority: Sec. 1, 49 Stat. 1559, as amended; 20 U.S.C. 107.
Source: Administrative Circular 112, 29 FR 11531, Aug. 12, 1964,
unless otherwise noted.
31 CFR 11.1 Purpose.
This part prescribes policies and procedures governing the approval,
installation, and operation of vending stands and services by the blind
under the provisions of the Randolph-Sheppard Vending Stand Act on all
Federal property, the maintenance, operation, and protection of which is
under the control of the Treasury Department.
31 CFR 11.2 Definitions.
As used in this part, the following terms shall have the following
meanings:
(a) Act means the Randolph-Sheppard Vending Stand Act, Act of June
20, 1936, c. 638, 49 Stat. 1559, as amended by the Act of August 3,
1954, c. 655, 68 Stat. 652, 663 (20 U.S.C. 107-107f).
(b) Bureau means any bureau, office, or corporation of the Treasury
Department and such comparable administrative units as may hereafter be
created or made a part of the Department. Where the Department is in
control of the maintenance operation, and protection of Federal
property, but such property is not operated by a bureau, the Office of
Administrative Assistant Secretary of the Treasury shall exercise the
power and responsibility of a bureau under this part with regard to such
property.
(c) Federal property means any building, land or other real property
owned, leased, or occupied by any department or agency of the United
States or any instrumentality owned by the United States, or by any
department or agency of the District of Columbia or any territory or
possession of the United States.
(d) Property or property location means any real property of which
the Treasury Department or a bureau thereof is in control of the
maintenance, operation and protection.
(e) Permit means the official authorization given by a bureau on
behalf of the Treasury Department, whereby the State licensing agency is
authorized to place a vending stand (or stands) to be operated by a
licensed blind person (or persons).
(f) Denial of a permit means the termination of a permit or the
refusal to issue a permit.
(g) Vending stand means:
(1) Such shelters, counters, shelving, display and wall cases,
refrigerating apparatus, and other appropriate auxiliary equipment as
are necessary for the vending of such articles as may be approved by the
State licensing agency and the bureau.
(2) Manual or coin-operated vending machines or similar devices for
vending such articles.
(h) State licensing agency means the State agency designated by the
Director of the Office of Vocational Rehabilitation pursuant to the Act
to issue licenses to blind persons for the operation of vending stands
on Federal and other properties. The term ''State'' includes, in
addition to the 50 States of the Union, the District of Columbia, the
Virgin Islands, Puerto Rico, and Guam.
(i) Licensed blind person means a blind person who is licensed by a
State licensing agency to operate a vending stand on Federal or other
property.
31 CFR 11.3 Department policy on permits for vending stands.
(a) In accordance with the provisions of the Randolph-Sheppard
Vending Stand Act, it will be the policy of this Department with respect
to property of which it is in control of the maintenance, operation, and
protection, to issue a permit authorizing the operation of such vending
stands without charge for space or necessary utilities as, in the
opinion of the State licensing agency, are suitable for operation by a
licensed blind person and for which the State licensing agency makes
application.
(b) The application of a State licensing agency for a permit may be
denied or a permit revoked if the Administrative Assistant Secretary of
the Treasury determines that the interest of the United States would be
adversely affected or this Department unduly inconvenienced by its
issuance or continuance. Loss of revenue by reason of granting a rent
free permit for operation of a vending stand by a licensed blind person
shall not be a basis for denying such permits as unduly inconveniencing
this Department or adversely affecting the interest of the United
States. If a bureau believes factors other than loss of revenue justify
denial or revocation of permit the matter should be referred to the
Administrative Assistant Secretary of the Treasury for decision,
together with the recommendation of the head of the bureau.
(c) A permit shall not be issued without first consulting the
appropriate State licensing agency, unless express permission is given
by the Administrative Assistant Secretary of the Treasury.
(d) Articles shall not be offered for sale on property after issuance
of permit which would compete with articles approved for sale under the
permit, except that this prohibition shall not apply to (1) sale by
cafeterias or restaurants of articles of a type considered as food and
usually sold as part of a meal, (2) sales by Coast Guard exchanges, and
(3) sale of articles by vending machines. The income from such vending
machines which are located within reasonable proximity to and are in
direct competition with a licensed vending stand shall be assigned to
the licensed blind operator. If a vending machine vends articles of a
type authorized by the permit and is so located that it attracts
customers who would otherwise patronize the vending stand, such machine
shall be considered in reasonable proximity to and in direct competition
with the stand.
(e) In the exercise of any function of this Department in connection
with planning for construction, alteration, or remodeling of a building
which is or will become Federal property, provision shall be made for
suitable space for vending stand or stands, if operations of one or more
on such property will be feasible. This shall include facilities
necessary to the operation of the stand, such as adequate electrical
wiring and outlets, heating, plumbing and ventilation. The bureau will
consult the State licensing agency in carrying out this provision.
(f) The following factors shall be considered in establishing the
location for the vending stand:
(1) It shall be conveniently located with reference to prospective
patrons.
(2) It shall be located so as not to create hazard through congestion
at, or in entrances, lobbies, corridors, or elevators.
(3) It shall be located and designed so it will not detract from
appearance of building.
(4) It shall be located so as to facilitate delivery of supplies and
removal of trash and garbage.
(5) It shall be located where most profitable operation may be
expected.
The bureau shall consult with the State licensing agencies in
applying the foregoing criteria.
31 CFR 11.4 Permits.
(a) Issuance of the permit shall be conditioned upon the vending
stand meeting specified standards, including standards relating to
appearance, safety, sanitation, and efficiency of operation. Due regard
shall be given to provisions of laws and regulations for the public
welfare which are applicable or would be applicable, if the property
involved were not under jurisdiction of the Federal Government.
(b) The permit shall specify types of articles which may be sold.
The articles may include newspapers, periodicals, confections, tobacco
products, articles dispensed automatically or in containers or wrapping
in which they are placed before receipt by vending stand, and such other
related articles as may be approved by the State licensing agency and
the bureau. Food and beverages may be permitted even though they are
not wrapped, packaged, boxed, or bottled off the premises in individual
sales portions, if they can be dispensed under sanitary conditions. The
State licensing agency may be required to obtain statements from State
or local health authorities to establish that such sale does not
endanger health.
(c) The permit shall contain adequate provisions to prevent material
defacement or damage to property, including provision that when
alterations are to be made by other than the United States, they will be
made with approval of, and under supervision of, the appropriate
official of the Federal Government.
(d) The permit shall contain any other reasonable conditions
necessary for the protection of the Government and prospective patrons
of vending stands, including, where appropriate, public liability
insurance when food and beverages are prepared on the premises.
However, under no circumstances shall conditions be imposed which would
require a vending stand to provide a service not usually associated with
such a stand.
(e) The State licensing agencies or the blind operators shall secure
all the necessary licenses or permits required by the United States,
State, or local governments, and shall comply with all lawful orders of
the Health Department of the interested city, county, or State and the
Medical Units of the Department.
(f) The permit shall describe the location of the vending stand
proper and locations of vending machines to be operated on the property.
31 CFR 11.5 Report on noncompliance with provisions of permit or on
other matters.
The permit, together with the applicable rules, regulations, and
policies of the State licensing agency, shall govern operation of the
vending stand, and all officials and employees of the Treasury
Department shall encourage conduct and operation in accordance with such
permit, rules, regulations, and policies. Bureaus shall cooperate with
the State licensing agency with respect to the foregoing and report to
it any significant violations or other relevant matters which come to
their attention. If a bureau believes that a State licensing agency is
not taking proper action, the matter should be referred to the
Administrative Assistant Secretary of the Treasury, through the head of
the bureau.
31 CFR 11.6 Referral of disagreements and appeals on provisions of
permit.
(a) If the individual representing a bureau and responsible for
granting a permit is unable to agree with a State licensing agency upon
(1) whether a vending stand is to be permitted, (2) a suitable location,
(3) whether a vending machine is in competition with a vending stand, or
(4) other terms of the permit (including the articles which may be
sold), the matter shall be referred to the Administrative Assistant
Secretary of the Treasury through the head of the bureau. The
Administrative Assistant Secretary will determine the action to be
taken. These provisions shall be equally applicable whether
disagreement relates to terms and conditions of a new permit or of any
amendment of the permit.
(b) Upon appeal, full investigation will be undertaken. A full
report shall be obtained from the representative from whose decision the
appeal is being taken. The State licensing agency shall be given
opportunity to present information. A final decision shall be rendered,
within ninety days of the filing of the appeal, by the Administrative
Assistant Secretary.
(c) Notification of the decision on appeal and the action taken
thereon will be reported by the Administrative Assistant Secretary to
the State licensing agency and to the Department of Health, Education,
and Welfare. At the end of each fiscal year the Administrative
Assistant Secretary will report to the Department of Health, Education,
and Welfare the total number of applications for vending stand locations
received from State licensing agencies, the number accepted, the number
denied, and the number still pending.
31 CFR 11.7 Bureaus' procedures for assuring preference.
(a) The head of each bureau in control of the maintenance, operation,
and protection of any Federal property shall maintain procedures in
order to insure compliance with this part.
(b) The bureau shall designate a representative for each property
location under its control to cooperate with the State licensing agency.
(c) The name of each representative shall be communicated in writing
to the State licensing agency of the State in which the property is
located.
(d) The representative of the bureau and the State licensing agency,
if requested by the latter, shall conduct a joint survey in order to
ascertain whether, and if so, in what locations, vending stands may be
properly, profitably, and satisfactorily operated by blind persons.
(e) The bureau shall make alterations or repairs that are reasonable
and feasible to accommodate the vending stands. If it is not feasible
for the bureau to make such alterations or repairs, the State licensing
agency may be permitted to arrange for such repairs at its own expense,
provided adequate steps are taken to protect the interest of the Federal
Government, including an understanding that the State licensing agency
will make such repairs and alterations subject to the approval of and
under the supervision of the appropriate official of the Federal
Government.
31 CFR 11.7 PART 13 -- PROCEDURES FOR PROVIDING ASSISTANCE TO STATE AND
LOCAL GOVERNMENTS IN PROTECTING FOREIGN DIPLOMATIC MISSIONS
Sec.
13.1 Purpose.
13.2 Definitions.
13.3 Eligibility to receive protection or reimbursement.
13.4 Requests for protection and advance notices of reimbursement
requests.
13.5 Utilization of the services, personnel, equipment, and
facilities of State and local govenments.
13.6 Reimbursement of State and local governments.
13.7 Reimbursement when the Assistant Secretary makes no
determination to utilize State and local government services, personnel,
equipment and facilities.
13.8 Protection for motorcades and other places associated with a
visit qualifying under section 202(7) of Title 3, U.S. Code.
Appendix I(F) -- Estimated Overhead and Administrative Costs
Appendix II(F) -- Overhead and Administrative Costs
Appendix I -- Form of Request for Assistance
Appendix II -- Form of Bill for Reimbursement
Authority: Secs. 202 and 208, Title 3, U.S. Code, as amended and
added, respectively by Pub. L. 94-196 (89 Stat. 1109); 5 U.S.C. 301.
Source: 41 FR 55179, Dec. 17, 1976, unless otherwise noted.
31 CFR 13.1 Purpose.
This part prescribes the procedures governing protective and
financial assistance to State and local governments when an
extraordinary protective need requires the protection of foreign
diplomatic missions as authorized by sections 202 and 208 of Title 3,
U.S. Code, as amended and added, respectively, by Pub. L. 94-196 (89
Stat. 1109).
31 CFR 13.2 Definitions.
As used in this part, these terms shall have the following meaning:
(a) The term Assistant Secretary means the Assistant Secretary of the
Treasury (Enforcement and Operations).
(b) The term extraordinary protective need means a need for
protection requiring measurable reinforcements of police personnel or
equipment, or both, significantly beyond the ordinary deployment of the
State or local government, arising out of actual or potential violence
related to: (1) Confrontations between nationalist or other groups, (2)
threats or acts of violence by terrorist or other groups, (3) a specific
diplomatic event or visit, or (4) a specific international event.
(c) The term foreign diplomatic mission means a mission (including
foreign consular offices) of a foreign country located in the United
States.
(d) The term full time officers means permanent officers whose duties
as foreign diplomatic officers occupy their full time.
(e) The term international organization means those international
organizations designated by Presidential Executive Order as being
entitled to the privileges, immunities, and exemptions accorded under
the International Organization Immunities Act of December 29, 1945 (22
U.S.C. 288).
(f) The term metropolitan area means a city in the United States
(other than the District of Columbia) and those areas contiguous to it.
(g) The term observer mission means a mission invited to participate
in the work of an international organization by that organization. The
invitation to participate shall be extended by the international
organization pursuant to the same internal rules of the international
organization as are applicable to any permanent mission.
(h) The term permanent mission means a fixed continuing mission
staffed by full time officers and maintained by a member state of an
international organization.
(i) The term temporary domicile means a domicile of limited duration
of a visiting foreign dignitary or officer in connection with a visit to
a permanent or observer mission to an international organization in a
metropolitan area.
(41 FR 55179, Dec. 17, 1976, as amended at 45 FR 30621, May 9, 1980)
31 CFR 13.3 Eligibility to receive protection or reimbursement.
(a) Protection, as determined by the Assistant Secretary, will be
provided by the United States Secret Service Uniformed Division,
pursuant to section 202 of Title 3, U.S. Code, as amended by Pub. L.
94-196, only to foreign diplomatic missions located in metropolitan
areas (other than the District of Columbia) where there are located
twenty or more such missions, as determined by the Secretary of State,
which are headed by full time officers. According to present State
Department figures, the following metropolitan areas have 20 or more
such foreign diplomatic missions: Chicago, Houston, Los Angeles, Miami,
New York City, New Orleans and San Francisco. The protection provided
by State or local governments rather than the United States Secret
Service Uniformed Division will be reimbursed pursuant to section 208(a)
of Title 3, U.S. Code and 13.6, 13.7 and 13.8 of this part.
(b) Protection or reimbursement will be provided for the metropolitan
areas described in paragraph (a) of this section only if:
(1) The affected metropolitan area requests such protection or
reimbursement;
(2) The Assistant Secretary determines that an extraordinary
protective need exists; and
(3) The extraordinary need arises in association with a visit to or
occurs at or, pursuant to 13.6, in the vicinity of: (i) A permanent
mission to an international organization of which the United States is a
member, (ii) an observer mission invited to participate in the work of
an international organization of which the United States is a member, or
(iii) in the case of a visit by a foreign official or dignitary to
participate in an activity of an international organization of which the
United States is a member, a foreign diplomatic mission, including a
consular office of the same country as the visitor.
(c) Protection (or reimbursement) may be extended at places of
temporary domicile in connection with a visit under paragraph (b) of
this section.
(d) Where an extraordinary protective need exists, protection (or
reimbursement) may be extended to missions as described in 13.3(b)(3)
(i) and (ii) whether or not associated with a visit by a foreign
dignitary.
(45 FR 30621, May 9, 1980)
31 CFR 13.4 Requests for protection and advance notices of
reimbursement requests.
(a) In cases where they believe that an extraordinary protective need
exists, the State or local governments may request that protection be
provided by the United States Secret Service Uniformed Division; or
they may give advance notice of their intention to provide, on a
reimbursable basis, all or part of the protection themselves.
(1) Requests for protection or advance notices of reimbursement
requests shall be made to: Assistant Secretary (Enforcement and
Operations), Department of the Treasury, Washington, DC 20220. Each
government requesting the protection authorized pursuant to section 202
of Title 3, U.S. Code, as amended by Pub. L. 94-196, or which intends
to seek reimbursement pursuant to section 208(a) of Title 3, U.S. Code
and 13.6 and 13.7 of this part, shall submit an application describing
the extraordinary protective need. Applications made pursuant to this
section shall be submitted to the Assistant Secretary 14 days before the
extraordinary protective need arises. In association with a visit, the
application shall include the name and title of the visiting foreign
official or dignitary, the country he represents, and the name and
location of the international organization or mission he will be
visting. The application shall also include, if available, the
temporary domicile of the visiting official or dignitary and his
schedule, including dates and times of arrival and departure from the
United States. If the extraordinary protective need occurs at a
permanent mission to an international organization of which the United
States is a member or an observer mission invited to participate in the
work of such organization, or if another foreign diplomatic mission of
the country qualifies under 13.3 (b) or (d), the application shall
include the name and location of the mission.
(b) State and local governments shall also indicate on the
application whether they are requesting the use of the United States
Secret Service Uniformed Division or whether they are giving advance
notice of their intention to provide, on a reimbursable basis, all or
part of the protection themselves. In order to assist the Assistant
Secretary in determining whether to utilize the United States Secret
Service Uniformed Division to meet all or part of the extraordinary
protective need, or to utilize, with their consent, the services,
personnel, equipment, and facilities of the State or local government,
or both, the application must include an estimate of the approximate
number of personnel by grade and rank, the services, equipment, and
facilities required, along with an estimate of the cost of such
personnel, services, equipment and facilities. This application must be
submitted in a format consistent with that illustrated in Appendix I of
this part.
(1) Upon receipt of a request for protection pursuant to paragraph
(a)(1) of this section and for the purposes of reimbursement pursuant to
13.6 and 13.7, the Assistant Secretary will determine whether an
extraordinary protective need exists and whether the United States
Secret Service Uniformed Division will be used for all, part or none of
the protection. In making determinations, the Assistant Secretary may
consult with appropriate Federal, State and local government agencies.
(45 FR 30621, May 9, 1980)
31 CFR 13.5 Utilization of the services, personnel, equipment, and
facilities of State and local governments.
The Assistant Secretary may decide to utilize, on a reimbursable
basis, the services, personnel, equipment, and facilities of State and
local governments of the affected metropolitan area desiring to provide
protection, or he may utilize the United States Secret Service Uniformed
Division, or both. If the United States Secret Service Uniformed
Division is utilized to meet all the extraordinary protective need, the
governments of the affected metropolitan area will not be reimbursed.
If the United States Secret Service Uniformed Division is utilized to
meet part of the extraordinary protective needs, the governments of the
affected metropolitan area will be reimbursed for that qualifying
portion of the protection which is provided by State and local police
authorities. If the Assistant Secretary decides to utilize, with their
consent, the services, personnel, equipment, and facilities of such
State and local governments to meet the extraordinary protective need,
he will so notify the government as soon as possible after receipt of a
request for protection or an advance notice of a reimbursement request
made pursuant to 13.4.
(45 FR 30622, May 9, 1980)
31 CFR 13.6 Reimbursement of State and local governments.
(a) State and local governments providing services, personnel,
equipment, or facilities to the affected metropolitan area pursuant to
13.5 may forward to the Assistant Secretary a bill for reimbursement for
the personel, equipment, facilities, and services utilized in meeting
the extraordinary protective need. The bill shall be in accordance with
the format in Appendix II of this part. The Assistant Secretary will
reimburse only those costs directly related to the extraordinary
protective need including personnel and equipment costs resulting from
assignments made to assist in providing security at an otherwise
qualified location in connection with the arrival, departure, or during
the visit of a foreign dignitary. Reimbursable costs will also include
the costs for establishing both fixed posts at a qualified location and
protective perimeters outside of a qualified location when it is clearly
established to the satisfaction of the Assistant Secretary that such
assignments were necessary to assure the safety of the qualified
location. Overhead and administrative costs associated with an
extraordinary protective need are reimbursable as either a flat 18
percent of the total extraordinary protective need costs, or, if such
costs can be clearly segregated from routine police costs, on a
dollar-for-dollar basis. The jurisdiction seeking such reimbursement
may select either method but may not use both. For the purposes of
reimbursement the Assistant Secretary will, in all cases, determine when
the extraordinary protective need began and terminated.
(45 FR 30622, May 9, 1980)
31 CFR 13.7 Reimbursement when the Assistant Secretary makes no
determination to utilize State and local government services, personnel,
equipment and facilities.
(a) Where events require the State or local governments of the
affected metropolitan area to provide protection to meet an
extraordinary protective need otherwise qualifying for reimbursement,
such reimbursement may be made even if the provisions of 13.4 and 13.5
have not been complied with fully. In such circumstances the provisions
of 13.6 shall apply.
(b) In cases where State or local governments, or both, utilized
their own services, personnel, equipment, and facilities to provide
protection for an extraordinary protective need, and no request for
protective assistance pursuant to 13.4 was made because the
extraordinary protective need occurred prior to the promulgation of this
part but after July 1, 1974, an application by such government to the
Assistant Secretary for reimbursement otherwise conforming to the
requirements of this part will be considered.
(41 FR 55179, Dec. 17, 1976, as amended at 45 FR 30622, May 9, 1980)
31 CFR 13.8 Protection for motorcades and other places associated with
a visit qualifying under section 202(7) of Title 3, U.S. Code.
(a) State and local governments furnishing services, personnel,
equipment, and facilities to provide protection for motorcades and at
other places associated with a visit qualifying under section 202(7) of
Title 3, U.S. Code may forward to the Assistant Secretary a bill for
reimbursement for the personnel, equipment, facilities, and services
utilized in providing such protection.
(b) Requests for payments under this section shall conform to the
procedures established elsewhere in this part governing reimbursements
arising out of an extraordinary protective need.
(45 FR 30622, May 9, 1980)
31 CFR 13.8 Pt. 13, App. I (F)
31 CFR 13.8 Appendix I (F) -- Estimated Overhead and Administrative
Costs
Date:
------ 1. Reimbursement for overhead and administrative costs
will be requested as a flat 18 percent of the total extraordinary
protective need cost as provided in section 13.6 of these regulations.
------ 2. Reimbursement for overhead and administrative costs
will be requested on a dollar-for-dollar basis. Computation of these
costs will be made using the below described method:
(Explain in detail how all of these costs can be directly and
exclusively attributed to the extraordinary protective need.)
(45 FR 30622, May 9, 1980)
31 CFR 13.8 Pt. 13, App. II (F)
31 CFR 13.8 Appendix II (F) -- Overhead and Administrative Costs
Date:
------ 1. Reimbursement for overhead and administrative costs
is requested as a flat 18 percent of the total extraordinary protective
need costs as provided in section 13.6 of these regulations.
------ 2. Reimbursement for overhead and administrative costs
is requested on a dollar-for-dollar basis. Computation of these costs
has been made using the below described method:
(Explain and show in detail how all of these costs have been directly
and exclusively attributed extraordinary protective need costs).
Dated:
(45 FR 30622, May 9, 1980)
31 CFR 13.8 Pt. 13, App. I
31 CFR 13.8 Appendix I -- Form of Request for Assistance
I hereby request assistance from the Department of the Treasury
pursuant to Section 202 of Title 3, U.S. Code, as amended by Pub. L.
94-196. This assistance is needed to enable the affected metropolitan
area of ------------ to meet an extraordinary protective need, which is
expected to arise on ------------ (date).
The nature of the extraordinary protective need prompting this
request is as follows:
(If in association with a visit, include the name and title of the
visiting foreign official or dignitary, the country represented and the
name and location of the international organization involved and/or
mission to be visited. The temporary domicile of the visiting official
or dignitary and his schedule, including dates and times of arrival and
departure from the United States, if available, must also be included.
If the extraordinary protective need occurs at or, pursuant to 13.6 of
31 CFR part 13, in the vicinity of, a permanent mission to an
international organization of which the United States is a member or at
an observer mission invited to participate in the work of the
organization, the application shall include the name and location of the
mission. If the extraordinary protective need occurs at a foreign
diplomatic mission, including a consular office, in conjunction with a
qualifying visit by a foreign official or dignitary of the same country
as that mission, the application shall include the name and location of
the mission or office. If, pursuant to 13.8, the visiting foreign
official is to travel by motorcade and/or visit locations other than his
foreign mission or temporary domicile, the application shall include a
description of the anticipated motorcade routes and all stops on the
routes as well as the name (or description) and location of any other
places to be visited.
The ------------ (Government entity) ------------ (is or is not)
------------ prepared to provide ------------ (all or a portion of) the
protection required to meet this need. Attached is an estimate of the
appropriate number of personnel, by grade and rank, and the specific
services, equipment and facilities which will be required to meet this
extraordinary protective need, along with an estimate of the cost of
such personnel, services, equipment, and facilities.
(Date)
--
(State or local government of the affected metropolitan area)
--
(Signature)
--
(Title)
(45 FR 30622, May 9, 1980)
31 CFR 13.8 Pt. 13, App. II
31 CFR 13.8 Appendix II -- Form of Bill for Reimbursement
I hereby request that ------------ (Governmental entity) be
reimbursed by the Department of the Treasury pursuant to sections 202
and 208 of Title 3, U.S. Code, as amended and added, respectively, by
Public Law 94-196 (89 Stat. 1109) (and/or pursuant to Public Law 96-74)
for expenses incurred while providing an adequate level of protection
during the extraordinary protective need arising in association with a
visit of ------------ (Official or dignitary's name and title) of
------------ (Country) to participate in the work of ------------
(International Organization) or occurring at the --------------
(Permanent or observer mission) to ------------ (International
organization) during the period ------------ (Date) through ------------
(Date).
I certify that the level of protection provided was both reasonable
and necessary; that the costs herein billed are only those direct costs
associated with meeting the extraordinary protective need; and that the
costs herein billed are not costs of an indirect nature such as
administrative costs, overhead, and depreciation, except as provided in
13.6(a) of 31 CFR 13.
Access to all records, accounts, receipts, etc., pertaining to the
costs herein billed will be accorded to representatives of the Assistant
Secretary (Enforcement and Operations) and the General Accounting Office
at such reasonable times and places as may be mutually agreed upon by
said representatives and ------------ (Governmental entity).
Date:
--
(Signature)
--
(Title)
(45 FR 30623, May 9, 1980)
31 CFR 13.8 PART 14 -- RIGHT TO FINANCIAL PRIVACY ACT
Sec.
14.1 Definitions.
14.2 Purpose.
14.3 Authorization.
14.4 Contents of request.
14.5 Certification.
Authority: Sec. 1108, Right to Financial Privacy Act of 1978, 92
Stat. 3697 et seq., 12 U.S.C. 3401 et seq. ; (5 U.S.C. 301); and
Reorganization Plan No. 26 of 1950.
Source: 44 FR 16909, Mar. 20, 1979, unless otherwise noted.
31 CFR 14.1 Definitions.
For purposes of this regulation, the term:
(a) Financial institution means any office of a bank, savings bank,
card issuer as defined in section 103 of the Consumer Credit Protection
Act (15 U.S.C. 1602(n)), industrial loan company, trust company, savings
and loan, building and loan, or homestead association (including
cooperative bank), credit union, or consumer financial institution,
located in any State or territory of the United States, the District of
Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
(b) Financial record means an original of, a copy of, or information
known to have been derived from, any record held by a financial
institution pertaining to a customer's relationship with the financial
institution.
(c) Person means an individual or a partnership of five or fewer
individuals.
(d) Customer means any person or authorized representative of that
person who utilized or is utilizing any service of a financial
institution, or for whom a financial institution is acting or has acted
as a fiduciary, in relation to an account maintained in the person's
name.
(e) Law enforcement inquiry means a lawful investigation or official
proceeding inquiring into a violation of or failure to comply with any
criminal or civil statute or any regulation, rule, or order issued
pursuant thereto.
(f) Departmental unit means those offices, divisions, bureaus, or
other components of the Department of the treasury authorized to conduct
law enforcement inquiries.
(g) Act means the Right to Financial Privacy Act of 1978.
31 CFR 14.2 Purpose.
The purpose of these regulations is to authorize Departmental units
to request financial records from a financial institution pursuant to
the formal written request procedure authorized by section 1108 of the
Act, and to set forth the conditions under which such requests may be
made.
31 CFR 14.3 Authorization.
Departmental units are hereby authorized to request financial records
of any customer from a financial institution pursuant to a formal
written request under the Act only if:
(a) No administrative summons or subpoena authority reasonably
appears to be available to the Departmental unit to obtain financial
records for the purpose for which the records are sought;
(b) There is reason to believe that the records sought are relevant
to a legitimate law enforcement inquiry and will further that inquiry;
(c) The request is issued by a supervisory official of a rank
designated by the head of the requesting Departmental unit. Officials
so designated shall not delegate this authority to others;
(d) The request adheres to the requirements set forth in 14.4; and
(e) The notice requirements set forth in section 1108(4) of the Act,
or the requirements pertaining to delay of notice in section 1109 of the
Act are satisfied, except in situations where no notice is required.
(e.g., section 1113(g))
31 CFR 14.4 Contents of request.
The formal written request shall be in the form of a letter or
memorandum to an appropriate official of the financial institution from
which financial records are requested. The request shall be signed by
an issuing official of the requesting Department unit. It shall set
forth that official's name, title, business address and business phone
number. The request shall also contain the following:
(a) The identity of the customer or customers to whom the records
pertain;
(b) A reasonable description of the records sought;
(c) Any other information that the issuing official deems
appropriate, e.g., the date on which the requesting Departmental unit
expects to present a certificate of compliance with the applicable
provisions of the Act, the name and title of the individual to whom
disclosure is to be made, etc.
In cases where customer notice is delayed by a court order, a copy of
the court order shall be attached to the formal written request.
31 CFR 14.5 Certification.
Prior to obtaining the requested records pursuant to a formal written
request, an official of a rank designated by the head of the requesting
Departmental unit shall certify in writing to the financial institution
that the Departmental unit has complied with the applicable provisions
of the Act.
31 CFR 14.5 PART 15 -- POST EMPLOYMENT CONFLICT OF INTEREST
31 CFR 14.5 Subpart A -- General Provisions
Sec.
15.737-1 Scope.
15.737-2 Definitions.
15.737-3 Director of Practice.
15.737-4 Other discipline.
15.737-5 Records.
31 CFR 14.5 Subpart B -- Rules Applicable to Post Employment Practice
by Officers and Employees of the Department
15.737-6 Interpretative standards.
31 CFR 14.5 Subpart C -- Administrative Enforcement Proceedings
15.737-7 Authority to prohibit practice.
15.737-8 Special orders.
15.737-9 Receipt of information concerning former Treasury employee.
15.737-10 Conferences.
15.737-11 Institution of proceeding.
15.737-12 Contents of complaint.
15.737-13 Service of complaint and other papers.
15.737-14 Answer.
15.737-15 Reply to answer.
15.737-16 Proof; variance; amendment of pleadings.
15.737-17 Motions and requests.
15.737-18 Representation.
15.737-19 Administrative Law Judge.
15.737-20 Hearings.
15.737-21 Evidence.
15.737-22 Depositions.
15.737-23 Transcript.
15.737-24 Proposed findings and conclusions.
15.737-25 Decision of the Administrative Law Judge.
15.737-26 Appeal to the General Counsel.
15.737-27 Decision of the General Counsel.
15.737-28 Notice of disciplinary action.
31 CFR 14.5 Subpart D -- Other Departmental Proceedings
15.737-29 Review by the General Counsel.
Authority: 92 Stat. 1864 (18 U.S.C. 207), as amended.
Source: 45 FR 39842, June 12, 1980, unless otherwise noted.
31 CFR 14.5 Subpart A -- General Provisions
31 CFR 15.737-1 Scope.
This part contains rules governing discipline of a former officer or
employee of the Department of the Treasury because of a post employment
conflict of interest. Such discipline may include prohibition from
practice before the Department or a separate statutory agency thereof as
those terms are defined in this part.
31 CFR 15.737-2 Definitions.
For the purpose of this part -- (a) The term Department means the
Department of the Treasury and includes the separate statutory agencies
thereof.
(b) The term Director means the Director of Practice.
(c) The term General Counsel means the General Counsel of the
Department.
(d) The term practice means any informal or formal appearance before,
or, with the intent to influence, any oral or written communication to
the Department or, where applicable, to a separate statutory agency
thereof on a pending matter of business on behalf of any other person
(except the United States).
(e) The term separate statutory agency thereof means an agency or
bureau within the Department designated by rule by the Director, Office
of Government Ethics, as a separate agency or bureau. The Internal
Revenue Service, Bureau of Alcohol, Tobacco and Firearms, United States
Secret Service, Bureau of the Mint, United States Customs Service,
Bureau of Engraving and Printing, and Comptroller of the Currency were
so designated effective July 1, 1979.
31 CFR 15.737-3 Director of Practice.
There is, in the Office of the Secretary of the Treasury, the Office
of Director of Practice. The Director shall institute and provide for
the conduct of disciplinary proceedings involving former employees of
the Department as authorized by 18 U.S.C. 207(j), and perform such other
duties as are necessary or appropriate to carry out his/her functions
under this part.
31 CFR 15.737-4 Other discipline.
For activity alleged to violate 18 U.S.C. 207 (a), (b) or (c), the
Director may also bring a disciplinary proceeding pursuant to the
regulations governing practice before the Bureau of Alcohol, Tobacco and
Firearms or the Internal Revenue Service as found in 31 CFR part 8 and
31 CFR part 10, respectively. Such proceeding may be consolidated with
any proceeding brought pursuant to this part.
31 CFR 15.737-5 Records.
There are made available to public inspection at the Office of
Director of Practice the roster of all persons prohibited from practice
before the Department. Other records may be disclosed upon specific
request, in accordance with appropriate disclosure regulations of the
Department.
31 CFR 15.737-5 Subpart B -- Rules Applicable to Post Employment Practice by Officers and Employees of the Department
31 CFR 15.737-6 Interpretative standards.
A determination that a former officer or employee of the Department
violated 18 U.S.C. 207 (a), (b) or (c) will be made in conformance with
the standards established in the interpretative regulations promulgated
by the Office of Government Ethics and published at 5 CFR part 737.
31 CFR 15.737-6 Subpart C -- Administrative Enforcement Proceedings
31 CFR 15.737-7 Authority to prohibit practice.
Pursuant to 18 U.S.C. 207(j), if the General Counsel finds, after
notice and opportunity for a hearing, that a former officer or employee
of the Department violated 18 U.S.C. 207 (a), (b) or (c), the General
Counsel in his/her discretion may prohibit that person from engaging in
practice before the Department or a separate statutory agency thereof
for a period not to exceed five years, or may take other appropriate
disciplinary action.
31 CFR 15.737-8 Special orders.
The General Counsel may issue special orders as he/she may consider
proper in any case within the purview of this part.
31 CFR 15.737-9 Receipt of information concerning former Treasury
employee.
If an officer or employee of the Department has reason to believe
that a former officer or employee of the Department has violated 18
U.S.C. 207 (a), (b) or (c), or if any such officer or employee receives
information to that effect, he/she shall promptly make a written report
thereof, which report or a copy thereof shall be forwarded to the
Inspector General, Department of the Treasury. If any other person has
information of such violations, he/she may make a report thereof to the
Inspector General or to any officer or employee of the Department. The
Inspector General shall refer any information he/she deems warranted to
the Director.
31 CFR 15.737-10 Conferences.
(a) In general. The Director may confer with a former officer or
employee concerning allegations of misconduct irrespective of whether an
administrative disciplinary proceeding has been instituted against
him/her. If such conference results in a stipulation in connection with
a proceeding in which such person is the respondent, the stipulation may
be entered in the record at the instance of either party to the
proceeding.
(b) Voluntary suspension. A former officer or employee, in order to
avoid the institution or conclusion of a proceeding, may offer his/her
consent to suspension from practice before the Department or a separate
statutory agency thereof. The Director in his/her discretion, may
suspend a former officer or employee in accordance with the consent
offered.
31 CFR 15.737-11 Institution of proceeding.
(a) Whenever the Director has reason to believe that any former
officer or employee of the Department has violated 18 U.S.C. 207 (a),
(b) or (c), he/she may reprimand such person or institute an
administrative disciplinary proceeding for that person's suspension from
practice before the Department or a separate statutory agency thereof.
The proceeding shall be instituted by a complaint which names the
respondent and is signed by the Director and filed in his/her office.
Except in cases of willfulness, or where time, the nature of the
proceeding, or the public interest does not permit, a proceeding will
not be instituted under this section until facts or conduct which may
warrant such action have been called to the attention of the proposed
respondent in writing and he/she has been accorded the opportunity to
provide his/her position on the matter.
(b) The Director shall coordinate proceedings under this part with
the Department of Justice in cases where it initiates criminal
prosecution.
31 CFR 15.737-12 Contents of complaint.
(a) Charges. A complaint shall give a plain and concise description
of the allegations which constitute the basis for the proceeding. A
complaint shall be deemed sufficient if it fairly informs the respondent
of the charges against him/her so that the respondent is able to prepare
a defense.
(b) Demand for answer. In the complaint, or in a separate paper
attached to the complaint, notification shall be given of the place and
time within which the respondent shall file his/her answer, which time
shall not be less than 15 days from the date of service of the
complaint, and notice shall be given that a decision by default may be
rendered against the respondent in the event he/she fails to file an
answer as required.
31 CFR 15.737-13 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon
the respondent by certified mail, or first-class mail as hereinafter
provided; by delivering it to the respondent or his/her attorney or
agent of record either in person or by leaving it at the office or place
of business of the respondent, attorney or agent; or in any other
manner which has been agreed to by the respondent. Where the service is
by certified mail, the return post office receipt duly signed by or on
behalf of the respondent shall be proof of service. If the certified
mail is not claimed or accepted by the respondent and is returned
undelivered, complete service may be made upon the respondent by mailing
the complaint to him/her by first-class mail, addressed to him/her at
the last address known to the Director. If service is made upon the
respondent or his/her attorney or agent of record in person or by
leaving the complaint at the office or place of business of the
respondent, attorney or agent, the verified return by the person making
service, setting forth the manner of service, shall be proof of such
service.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served upon a respondent as provided in paragraph (a)
of this section or by mailing the paper by first-class mail to the
respondent at the last address known to the Director, or by mailing the
paper by first-class mail to the respondent's attorney or agent of
record. Such mailing shall constitute complete service. Notices may be
served upon the respondent or his/her attorney or agent of record by
telegraph.
(c) Filing of papers. Whenever the filing of a paper is required or
permitted in connection with a proceeding, and the place of filing is
not specified by this subpart or by rule or order of the Administrative
Law Judge, the paper shall be filed with the Director of Practice,
Department of the Treasury, Washington, D.C. 20220. All papers shall be
filed in duplicate.
31 CFR 15.737-14 Answer.
(a) Filing. The respondent's answer shall be filed in writing within
the time specified in the complaint, unless on application the time is
extended by the Director or the Administrative Law Judge. The answer
shall be filed in duplicate with the Director.
(b) Contents. The answer shall contain a statement of facts which
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint, except that the
respondent shall not deny a material allegation in the complaint which
he/she knows to be true, or state that he/she is without sufficient
information to form a belief when in fact he/she possesses such
information. The respondent may also state affirmatively special
matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved, and no further
evidence in respect of such allegation need be adduced at a hearing.
Failure to file an answer within the time prescribed in the notice to
the respondent, except as the time for answer is extended by the
Director or the Administrative Law Judge, shall constitute an admission
of the allegations of the complaint and a waiver of hearing, and the
Administrative Law Judge may make his/her decision by default without a
hearing or further procedure.
31 CFR 15.737-15 Reply to answer.
No reply to the respondent's answer shall be required, and new matter
in the answer shall be deemed to be denied, but the Director may file a
reply in his/her discretion or at the request of the Administrative Law
Judge.
31 CFR 15.737-16 Proof; variance; amendment of pleadings.
In the case of a variance between the allegations in a pleading and
the evidence adduced in support of the pleading, the Administrative Law
Judge may order or authorize amendment of the pleading to conform to the
evidence: Provided, That the party who would otherwise be prejudiced by
the amendment is given reasonable opportunity to meet the allegations of
the pleading as amended; and the Administrative Law Judge shall make
findings on any issue presented by the pleadings as so amended.
31 CFR 15.737-17 Motions and requests.
Motions and requests may be filed with the Director or with the
Administrative Law Judge.
31 CFR 15.737-18 Representation.
A respondent or proposed respondent may appear in person or he/she
may be represented by counsel or other representative. The Director may
be represented by an attorney or other employee of the Department.
31 CFR 15.737-19 Administrative Law Judge.
(a) Appointment. An Administrative Law Judge appointed as provided
by 5 U.S.C. 3105 (1966), shall conduct proceedings upon complaints for
the administrative disciplinary proceedings under this part.
(b) Power of Administrative Law Judge. Among other powers, the
Administrative Law Judge shall have authority, in connection with any
proceeding assigned or referred to him/her, to do the following:
(1) Administer oaths and affirmations;
(2) Make rulings upon motions and requests, which rulings may not be
appealed from prior to the close of a hearing except, at the discretion
of the Administrative Law Judge, in extraordinary circumstances;
(3) Determine the time and place of hearing and regulate its course
and conduct;
(4) Adopt rules of procedure and modify the same from time to time as
occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and examine
witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the settlement
or simplification of the issues by consent of the parties;
(9) Assess the responsible party extraordinary costs attributable to
the location of a hearing;
(10) Perform such acts and take such measures as are necessary or
appropriate to the efficient conduct of any proceeding; and
(11) Make initial decisions.
31 CFR 15.737-20 Hearings.
(a) In general. The Administrative Law Judge shall preside at the
hearing on a complaint for the suspension of a former officer or
employee from practice before the Department. Hearings shall be
stenographically recorded and transcribed and the testimony of witnesses
shall be taken under oath or affirmation. Hearings will be conducted
pursuant to 5 U.S.C. 556.
(b) Public access to hearings. Hearings will be closed unless an
open hearing is requested by the respondent, except that if classified
information or protected information of third parties (such as tax
information) is likely to be adduced at the hearing, it will remain
closed. A request for an open hearing must be included in the answer to
be considered.
(c) Failure to appear. If either party to the proceeding fails to
appear at the hearing, after due notice thereof has been sent to
him/her, he/she shall be deemed to have waived the right to a hearing
and the Administrative Law Judge may make a decision against the absent
party by default.
31 CFR 15.737-21 Evidence.
(a) In general. The rules of evidence prevailing in courts of law
and equity are not controlling in hearings on complaints for the
suspension of a former officer or employee from practice before the
Department. However, the Administrative Law Judge shall exclude
evidence which is irrelevant, immaterial, or unduly repetitious.
(b) Depositions. The deposition of any witness taken pursuant to
15.737-22 of this part may be admitted.
(c) Proof of documents. Official documents, records and papers of
the Department shall be admissible in evidence without the production of
an officer or employee to authenticate them. Any such documents,
records, and papers may be evidenced by a copy attested or identified by
an officer or employee of the Department.
(d) Exhibits. If any document, record, or other paper is introduced
in evidence as an exhibit, the Administrative Law Judge may authorize
the withdrawal of the exhibit subject to any conditions which he/she
deems proper.
(e) Objections. Objections to evidence shall be in short form,
stating the grounds of objection relied upon, and the record shall not
include argument thereon, except as ordered by the Administrative Law
Judge. Rulings on such objections shall be a part of the record. No
exception to the ruling is necessary to preserve the rights of the
parties.
31 CFR 15.737-22 Depositions.
Depositions for use at a hearing may, with the consent of the parties
in writing or the written approval of the Administrative Law Judge, be
taken by either the Director or the respondent or their duly authorized
representatives. Depositions may be taken upon oral or written
interrogatories, upon not less than 10 days' written notice to the other
party before any officer duly authorized to administer an oath for
general purposes or before an officer or employee of the Department who
is authorized to administer an oath. Such notice shall state the names
of the witnesses and the time and place where the depositions are to be
taken. The requirement of 10 days' notice may be waived by the parties
in writing, and depositions may then be taken from the persons and at
the times and places mutually agreed to by the parties. When a
deposition is taken upon written interrogatories, any cross-examination
shall be upon written interrogatories. Copies of such written
interrogatories shall be served upon the other party with the notice,
and copies of any written cross-interrogation shall be mailed or
delivered to the opposing party at least 5 days before the date of
taking the depositions, unless the parties mutually agree otherwise. A
party upon whose behalf a deposition is taken must file it with the
Administrative Law Judge and serve one copy upon the opposing party.
Expenses in the reporting of depositions shall be borne by the party at
whose instance the deposition is taken.
31 CFR 15.737-23 Transcript.
In cases where the hearing is stenographically reported by a
Government contract reporter, copies of the transcript may be obtained
from the reporter at rates not to exceed the maximum rates fixed by
contract between the Government and the reporter or from the Department
at actual cost of duplication. Where the hearing is stenographically
reported by a regular employee of the Department, a copy thereof will be
supplied to the respondent either without charge or upon payment of a
reasonable fee. Copies of exhibits introducted at the hearing or at the
taking of depositions will be supplied to the parties upon the payment
of a reasonable fee (Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C.
483a)).
31 CFR 15.737-24 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the
complaint or where a party has failed to appear at the hearing, the
Administrative Law Judge prior to making his/her decision, shall afford
the parties a reasonable opportunity to submit proposed findings and
conclusions and supporting reasons therefor.
31 CFR 15.737-25 Decision of the Administrative Law Judge.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the Administrative Law Judge shall make the initial decision in
the case. The decision shall include (a) a statement of findings and
conclusions, as well as the reasons or basis therefor, upon all the
material issues of fact, law, or discretion presented on the record, and
(b) an order of suspension from practice before the Department or
separate statutory agency thereof or other appropriate disciplinary
action, or an order of dismissal of the complaint. The Administrative
Law Judge shall file the decision with the Director and shall transmit a
copy thereof to the respondent or his/her attorney of record. In the
absence of an appeal to the General Counsel or review of the decision
upon motion of the General Counsel, the decision of the Administrative
Law Judge shall without further proceedings become the decision of the
General Counsel 30 days from the date of the Administrative Law Judge's
decision.
31 CFR 15.737-26 Appeal to the General Counsel.
Within 30 days from the date of the Administrative Law Judge's
decision, either party may appeal to the General Counsel. The appeal
shall be filed with the Director in duplicate and shall include
exceptions to the decision of the Administrative Law Judge and
supporting reasons for such exceptions. If an appeal is filed by the
Director, he/she shall transmit a copy thereof to the respondent.
Within 30 days after receipt of an appeal or copy thereof, the other
party may file a reply brief in duplicate with the Director. If the
reply brief is filed by the Director, he/she shall transmit a copy of it
to the respondent. Upon the filing of an appeal and a reply brief, if
any, the Director shall transmit the entire record to the General
Counsel.
31 CFR 15.737-27 Decision of the General Counsel.
On appeal from or review of the initial decision of the
Administrative Law Judge, the General Counsel will make the agency
decision. In making his/her decision, the General Counsel will review
the record or such portions thereof as may be cited by the parties to
permit limiting of the issues. A copy of the General Counsel's decision
shall be transmitted to the respondent by the Director.
31 CFR 15.737-28 Notice of disciplinary action.
(a) Upon the issuance of a final order suspending a former officer or
employee from practice before the Department or a separate statutory
agency thereof, the Director shall give notice thereof to appropriate
officers and employees of the Department. Officers and employees of the
Department shall refuse to participate in any appearance by such former
officer or employee or to accept any communication which constitutes the
prohibited practice before the Department or separate statutory agency
thereof during the period of suspension.
(b) The Director shall take other appropriate disciplinary action as
may be required by the final order.
31 CFR 15.737-28 Subpart D -- Other Departmental Proceedings
31 CFR 15.737-29 Review by the General Counsel.
In my proceeding before the Department, if an initial decision is
made with respect to the disqualification of a representative or
attorney for a party on the grounds of 18 U.S.C. 207(a), (b) or (c),
such decision may be appealed to the General Counsel, who will make the
agency decision on the issue.
31 CFR 15.737-29 PART 16 -- REGULATIONS IMPLEMENTING THE PROGRAM FRAUD
CIVIL REMEDIES ACT OF 1986
Sec.
16.1 Basis and purpose.
16.2 Definitions.
16.3 Basis for civil penalties and assessments.
16.4 Investigation.
16.5 Review by the reviewing official.
16.6 Prerequisites for issuing a complaint.
16.7 Complaint.
16.8 Service of complaint.
16.9 Answer.
16.10 Default upon failure to file an answer.
16.11 Referral of complaint and answer to the ALJ.
16.12 Notice of hearing.
16.13 Parties to the hearing.
16.14 Separation of functions.
16.15 Ex parte contacts.
16.16 Disqualification of reviewing official or ALJ.
16.17 Rights of parties.
16.18 Authority of the ALJ.
16.19 Prehearing conferences.
16.20 Disclosure of documents.
16.21 Discovery.
16.22 Exchange of witness lists, statements, and exhibits.
16.23 Subpoenas for attendance at hearing.
16.24 Protective order.
16.25 Fees.
16.26 Form, filing and service of papers.
16.27 Computation of time.
16.28 Motions.
16.29 Sanctions.
16.30 The hearing and burden of proof.
16.31 Determining the amount of penalties and assessments.
16.32 Location of hearing.
16.33 Witnesses.
16.34 Evidence.
16.35 The record.
16.36 Post-hearing briefs.
16.37 Initial decision.
16.38 Reconsideration of initial decision.
16.39 Appeal to authority head.
16.40 Stays ordered by the Department of Justice.
16.41 Stay pending appeal.
16.42 Judicial review.
16.43 Collection of civil penalties and assessments.
16.44 Right to administrative offset.
16.45 Deposit in Treasury of United States.
16.46 Compromise or settlement.
16.47 Limitations.
Authority: 31 U.S.C. 3801-3812.
Source: 52 FR 35071, Sept. 17, 1987, unless otherwise noted.
31 CFR 16.1 Basis and purpose.
(a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, Pub. L. 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
requires each authority head to promulgate regulations necessary to
implement the provisions of the statute.
(b) Purpose. This part
(1) Establishes administrative procedures for imposing civil
penalties and assessments against persons who make, submit, or present,
or cause to be made, submitted, or presented, false, fictitious, or
fraudulent claims or written statements to authorities or to their
agents, and
(2) Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments.
31 CFR 16.2 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 the Treasury.
Authority head means the Assistant Secretary of the Treasury for
Management.
Benefit, when used in the context of false statements made with
respect to a benefit, means anything of value including but not limited
to any advantage, preference, privilege, license, permit, favorable
decision, ruling, status, or loan guarantee. This definition should be
distinguished from the limitations on coverage of these regulations with
respect to beneficiaries of specific benefit programs which are found in
16.3(c) of this part.
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, except
that such term does not include any claim made in any return of tax
imposed by the Internal Revenue Code of 1954.
Complaint means the administrative complaint served by the reviewing
official on the defendant under 16.7 of this part.
Defendant means any person alleged in a complaint under 16.7 to be
liable for a civil penalty or assessment under 16.3.
Department means the Department of the Treasury.
Government means the United States Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by
16.10 or 16.37, 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 the Treasury.
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,
private organization, State, political subdivision of a State,
municipality, county, district, and Indian tribe, and includes the
plural of that term.
Presiding officer means an administrative law judge appointed in the
authority pursuant to 5 U.S.C. 3105 or detailed to the authority
pursuant to section 3344 of such title.
Representative means an attorney designated in writing by a defendant
to appear on his or her behalf in administrative hearings before the
Department and to represent a defendant in all other legal matters
regarding a complaint made pursuant to these regulations.
Reviewing official means the General Counsel, or another individual
in the Legal Division of the Department designated by the General
Counsel, who is --
(a) 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; and
(b) Is not subject to supervision by, or required to report to, the
investigating official; and
(c) Is not employed in the organization unit of the authority in
which the investigating official is employed.
Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made --
(a) With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for) --
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from, the authority, or any State,
political subdivision of a State, or other party, if the United States
Government provides any portion of the money or property under such
contract or for such grant, loan, or benefit, or if the government will
reimburse such State, political subdivision, or party of any portion of
the money or property under such contract or for such grant, loan, or
benefit, except that such term does not include any claim made in any
return of tax imposed by the Internal Revenue Code of 1954.
31 CFR 16.3 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 an 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 such authority, recipient, or party.
(4) Each claim for property, services, or money is subject to a civil
penalty under these regulations 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) Includes or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the content 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 an 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 such authority.
(c)(1) In the case of any claim or statement made by any individual
relating to any of the benefits listed in paragraph (c)(2) of this
section, received by such individual, such individual may be held liable
for penalties and assessments under this section only if such claim or
statement is made by such individual in making application for such
benefits with respect to such individual's eligibility to receive such
benefits.
(2) For purposes of this paragraph, the term ''benefits'' means --
(i) Benefits under the food stamp program (as defined in section 3(h)
of the Food Stamp Act of 1977);
(ii) Benefits under Chapters 11, 13, 15, 17, and 21 of Title 38;
(iii) Benefits under the Black Lung Benefits Act;
(iv) Any authority or other benefit under the Railroad Retirement Act
of 1974;
(v) Benefits under the National School Lunch Act;
(vi) Benefits under any housing assistance program for lower income
families or elderly or handicapped persons which is administered by the
Secretary of Housing and Urban Development or the Secretary of
Agriculture;
(vii) Benefits under the special supplemental food program for women,
infants, and children established under section 17 of the Child
Nutrition Act of 1966;
(viii) Benefits under part A of the Energy Conservation in Existing
Buildings Act of 1976;
(ix) Benefits under the supplemental security income program under
title XVI of the Social Security Act;
(x) Old age, survivors, and disability insurance benefits under title
II of the Social Security Act;
(xi) Benefits under title XVIII of the Social Security Act;
(xii) Aid to families with dependent children under a State plan
approved under section 402(a) of the Social Security Act;
(xiii) Medical assistance under a State plan approved under section
1902(a) of the Social Security Act;
(xiv) Benefits under title XX of the Social Security Act;
(xv) Benefits under section 336 of the Older Americans Act; or
(xvi) Benefits under the Low-Income Home Energy Assistance Act of
1981,
which are intended for the personal use of the individual who
receives the benefits or for a member of the individual's family.
(d) No proof of specific intent to defraud is required to establish
liability under this section.
(e) 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.
(f) In any case in which it is determined that more than one person
is liable for making a claim under this section, and 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.
31 CFR 16.4 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 information, records, or documents sought;
(2) The investigating official may designate a person to act on his
behalf to receive the information, records, or documents sought; and
(3) The person receiving such subpoena shall be required to tender to
the investigating official or to the person designated to receive the
information, records, or documents, a certification that the
information, records, or documents sought have been produced, or that
such information, records, or documents are not available and the
reasons therefor, or that such information, records, or documents,
suitably identified, have been withheld based upon the assertion of an
identified legal privilege.
(b) If the investigating official concludes that an action under the
Program Fraud Civil Remedies Act may be warranted, the investigating
official shall report the findings and conclusions of such investigation
to the reviewing official.
(c) Nothing in this section shall preclude or limit the investigating
official's discretion to refer allegations directly to the Department of
Justice for suit under the False Claims Act, 31 U.S.C. 3729-3731, or for
other civil relief, or to preclude or limit such official's discretion
to defer or postpone a report or referral to avoid interference with an
investigation into criminal misconduct or a criminal prosecution.
(d) Nothing in this section modifies any responsibility of the
investigating official to report violations of criminal law to the
Attorney General.
31 CFR 16.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under
16.4(b), the reviewing official determines that there is adequate
evidence to believe that a person is liable under 16.3 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
16.7.
(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, if any, of
property, services, or other benefits requested or demanded in violation
of 16.3 of this part; or, if no monetary value can be put on the
property, service or benefit, a statement regarding the non-monetary
consequences to the agency of a false statement.
(5) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments. Such a statement may
be based upon information then known or an absence of any information
indicating that the person may be unable to pay such an amount.
31 CFR 16.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under 16.7 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)(l), and
(2) In the case of allegations of liability under 16.3(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 16.3(a) does not exceed $150,000.
(b) For the purposes of this section, a related group of claims
submitted at the same time shall include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section shall be construed to limit the reviewing
official's authority to join in a single complaint against a person,
claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money or the value of property or services
demanded or requested, as long as the total amount for each claim does
not exceed $150,000.
31 CFR 16.7 Complaint.
(a) On or after the date the Attorney General or his designee
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 16.8.
(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 an attorney;
(4) That the defendant has a right to review and obtain certain
information pursuant to Section 16.20 herein; and
(5) That failure to file an answer within 30 days of service of the
complaint will result in the imposition of the maximum amount of
penalties and assessments without right to appeal.
(c) At the same time the reviewing official serves the complaint on
the defendant(s), he or she shall serve the defendant with a copy of
these regulations.
31 CFR 16.8 Service of complaint.
(a) Service of a complaint must be made by a certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure.
(b) Proof of service, stating the name 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 making service;
(2) An acknowledged United States Postal Service return receipt card;
or
(3) Written acknowledgement of the defendant or his representative.
31 CFR 16.9 Answer.
(a) The defendant may request a hearing by filing an answer with the
reviewing official within 30 days of service of the complaint. An
answer shall be deemed to be a request for hearing.
(b) In the answer, the defendant --
(1) Shall admit or deny each of the allegations of liability made in
the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum;
and
(4) Shall state whether the defendant has authorized an attorney to
act as defendant's representative, and shall state the name, address,
and telephone number of the representative.
31 CFR 16.10 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time
prescribed in 16.9(a), the reviewing official may refer the complaint
to the ALJ for initial decision.
(b) Upon the referral of the complaint, the ALJ shall promptly serve
on defendant in the manner prescribed in 16.8, a notice that an initial
decision will be issued under this section.
(c) If the defendant fails to file a timely answer, the ALJ shall
assume the facts alleged in the complaint to be true and, if such facts
eatablish liability under 16.3, the ALJ shall issue an initial decision
imposing the maximum amount of penalties and assessments allowed under
the statute.
(d) Except as otherwise provided in this section, by failing to file
a timely answer, the defendant waives any right to further review of the
penalties and assessments imposed under paragraph (c) of this section,
and the initial decision shall become final and binding upon the parties
30 days after it is issued.
(e) If, before such an initial decision becomes final, the defendant
files a motion with the ALJ, and serves a copy on the agency, seeking to
reopen on the grounds that extraordinary circumstances prevented the
defendant from filing a timely answer, the initial decision shall be
stayed pending the ALJ's decision on the motion. The ALJ shall permit
the agency a reasonable amount of time, not less than 15 calendar days,
to respond to the defendant's motion.
(f) If, on such motion, the defendant can demonstrate extraordinary
circumstances excusing the failure to file a timely answer, the ALJ
shall withdraw the initial decision, if such a decision has been issued
pursuant to paragraph (c) of this section, 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
16.38.
(h) The defendant may appeal to the authority head the decision
denying a motion to reopen by filing a notice of appeal with the
authority head within 15 days after the ALJ denies the motion. The
timely filing of a notice of appeal shall stay the initial decision
until the authority head decides the issue.
(i) If the defendant files a timely notice of appeal with the
authority head, the ALJ shall forward the record of the proceeding to
the authority head.
(j) The authority head shall decide expeditiously, and based solely
on the record before the ALJ, whether extraordinary circumstances excuse
the defendant's failure to file a timely answer.
(k) If the authority head decides that extraordinary circumstances
excuse the defendant's failure to file a timely answer, the authority
head shall remand the case to the ALJ with instructions to grant the
defendant an opportunity to file an answer.
(l) If the authority head decides that the defendant's failure to
file a timely answer is not excused, the authority head shall reinstate
the initial decision of the ALJ, which shall become final and binding
upon the parties 30 days after the authority head issues such decision.
31 CFR 16.11 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the
complaint and answer with the ALJ.
31 CFR 16.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing upon the defendant and the agency
representative in the manner prescribed by 16.8.
(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 names, addresses, and telephone numbers of the
representatives of the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
31 CFR 16.13 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.
31 CFR 16.14 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 an attorney employed anywhere
in the Legal Division of the Department, or an attorney employed in the
offices of either the investigating official or the reviewing official;
however the representative of the Government may not participate or
advise in the review of the initial decision by the authority head.
31 CFR 16.15 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
31 CFR 16.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file with the ALJ a motion for disqualification of a
reviewing official or an ALJ. Such motion shall be accompanied by an
affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections shall be deemed waived.
(d) Such affidavit shall state specific facts that support the
party's assertion that personal bias or other reason for
disqualification exists and the time and circumstances of the party's
discovery of such facts. It shall be accompanied by a certificate of
the representative of record that it is made in good faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall
proceed no further in the case until he or she resolves the matter of
disqualification in accordance with paragrpah (f) of this section.
(f)(1) If the ALJ determines that a reviewing official is
disqualified, the ALJ shall dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the agency shall seek
to have the case promptly reassigned 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.
31 CFR 16.17 Rights of parties.
Except as otherwise limited by this part, all parties may --
(a) Be accompanied, represented, and advised by an attorney;
(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 beliefs and proposed findings of fact and
conclusions of law after the hearing.
31 CFR 16.18 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 make any determinations
regarding the validity of Federal statutes or regulations, or
Departmental orders, Directives, or other published rules.
31 CFR 16.19 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, admissions of fact or the content 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.
31 CFR 16.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may
review any relevant and material documents, transcripts, records, and
other material that relate to the allegations set out in the complaint
and upon which the findings and conclusions of the investigating
official under 16.4(b) are based unless such documents are subject to a
privilege under Federal law. The Department shall schedule such review
at a time and place convenient to it. 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 obtian 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 16.5 is not discoverable under any
circumstances.
(d) The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant to
16.9.
31 CFR 16.21 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 purposes of this section and 16.22 and 16.23, the term
''documents'' includes information, documents, reports, answers,
records, accounts, papers, and other data, either paper or electronic,
and other documentary evidence. Nothing contained herein shall be
interpreted to require the creation of a document.
(c) Unless mutually agreed to by the parties, discovery is available
only as ordered by the ALJ. The ALJ shall regulate the timing of
discovery.
(d) Motions for discovery. (1) A party seeking discovery may file a
motion with the ALJ if it is not made available by another party on an
informal basis. Such a motion shall be accompanied by a copy of the
requested discovery, or in the case of depositions, a summary of the
scope of the proposed deposition, and a description of the efforts which
have been made by the party to obtain discovery.
(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 16.24.
(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
16.24.
(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 16.8.
(3) The deponent may file with the ALJ a motion to quash the subpoena
or a motion for a protective order within ten days of service.
(4) The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition, which it shall make available to
all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
31 CFR 16.22 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
16.33(b). At the time the above documents are exchanged, any party that
intends to rely on the transcript of deposition testimony in lieu of
live testimony at the hearing, if permitted by the ALJ, shall provide
each party with a copy of the specific pages of the transcript it
intends to introduce into evidence.
(b) If a party objects, the ALJ shall not admit into evidence the
testimony of any witness whose name does not appear on the witness list
or any exhibit not provided to the opposing party as provided above
unless the ALJ finds good cause and 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.
31 CFR 16.23 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
specify any documents to be produced and shall designate the witnesses
and describe the address and location thereof with sufficient
particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the
witness is to appear and any documents the witness is to bring with him
or her.
(e) The party seeking the subpoena shall serve it in the manner
prescribed in 16.8. A subpoena on a party or upon an individual under
the control of a party may be served by first class mail.
(f) A party or the individual to whom the subpoena is directed may
file with the ALJ a motion to quash the subpoena within ten days after
service or on or before the time specified in the subpoena for
compliance if it is less than ten days after service.
31 CFR 16.24 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 file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
ALJ.
31 CFR 16.25 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.
31 CFR 16.26 Form, filing and service of papers.
(a) Form. (1) Documents filed with the ALJ shall include a original
and two copies.
(2) Every pleading and paper filed in the proceeding shall contain a
caption setting forth the title of the action, the case number assigned
by the ALJ, and a designation of the paper (e.g., motion to quash
subpoena).
(3) Every pleading and paper shall be signed by, and shall contain
the address and telephone number of the party 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 etablished by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
(b) Service. A party filing a document with the ALJ shall, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than the complaint or
notice of hearing shall be made by delivering or mailing a copy to the
party's last known address. When a party is represented by an attorney,
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.
31 CFR 16.27 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. When the
period of time allowed is more than seven days, all intervening calendar
days are included in the computation.
(c) Where a document has been served or issued by mail, an additional
five days will be added to the time permitted for any response.
31 CFR 16.28 Motions.
(a) Any application to the ALJ for an order or ruling shall be by
motion. Motions shall state the relief sought, the authority relied
upon, and the facts alleged, and shall be filed with the ALJ and served
on all other parties.
(b) Except for motions made during a prehearing conference or at the
hearing, all motions shall be in writing. The ALJ may require that oral
motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for filing
responses thereto has expired, except upon consent of the parties or
following a hearing on the motion, but may overrule or deny such motion
without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose of all
outstanding motions prior to the beginning of the hearing.
31 CFR 16.29 Sanctions.
(a) The ALJ may sanction a person, including any party or
representative for --
(1) Failing to comply with an order, rule, or procedure governing the
proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Any such sanction, including but not limited to those listed in
paragraphs (c), (d), and (e) of this section, shall reasonably relate to
the nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may --
(1) Draw an inference in favor of the requesting party with regard to
the information sought;
(2) In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part
commenced by service of a notice of hearing, the ALJ may dismiss the
action or may issue an initial decision imposing penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other document which is not filed in a timely fashion.
31 CFR 16.30 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 16.3 and, if so, the appropriate amount of any such
civil penalty or assessment considering any aggravating or mitigating
factors.
(b) The authority shall have the burden of proving defendant's
liability and any aggravating factors by a preponderance of the
evidence.
(c) The defendant shall have the burden of proving 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.
31 CFR 16.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessements, the ALJ and upon appeal, the authority head, 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, double damages and a
significant civil penalty ordinarily should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the authority head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false, fictitious, or fraudulent claims or
statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the management
of Government programs and operations;
(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.
31 CFR 16.32 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 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.
31 CFR 16.33 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 16.22(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 permited by the ALJ,
cross-examination on matters outside the scope of direct examination
shall be conducted in the manner of direct examination and may proceed
by leading questions only if the witness is a hostile witness, an
adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of --
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or
employee of the party designated by the party's representative; or
(3) An individual whose presence is shown by a party to be essential
to the presentation of its case, including an individual employed by the
Government engaged in assisting the representative for the Government.
31 CFR 16.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided herein, the ALJ shall not be bound by the
Federal Rules of Evidence. However, the ALJ may apply the Federal Rules
of Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The ALJ shall exclude irrelevant, immaterial, or incompetent
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 16.24.
31 CFR 16.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be
obtained following the hearing from the ALJ at a cost not to exceed the
actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted
at the hearing, and all papers and requests filed in the proceeding
constitute the record for the decision by the ALJ and the authority
head.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to 16.24.
31 CFR 16.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. The ALJ
shall fix the time for filing such briefs, not to exceed 60 days from
the date the parties receive the transcript of the hearing or, if
applicable, the stipulated record. Such briefs may be accompanied by
proposed findings of fact and conclusions of law. The ALJ may permit
the parties to file reply briefs.
31 CFR 16.37 Initial decision.
(a) The ALJ shall issue an initial decision, based solely on the
record, which shall contain findings of fact, conclusion 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 16.3;
(2) If the person is liable for penalties of 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 16.31.
(c) The ALJ shall promptly serve the initial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ shall at the same time
serve all defendants with a statement describing the right of any
defendant determined to be liable for a civil penalty or assessment to
file a motion for reconsideration with the ALJ or a notice of appeal
with the authority head. If the ALJ fails to meet the deadline
contained in this paragraph, he or she shall notify the parties of the
reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the
authority head, or a motion for reconsideration of the initial decision
is timely filed, the initial decision shall constitute the final
decision of the authority head and shall be final and binding on the
parties 30 days after it is issued by the ALJ.
31 CFR 16.38 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) When a motion for reconsideration is made, the time periods for
appeal to the authority head contained in 16.38, and for finality of
the initial decision in 16.36(d), shall begin on the date the ALJ
issues the denial of the motion for reconsideration or a revised initial
decision, as appropriate.
31 CFR 16.39 Appeal to authority head.
(a) Any defendant who has filed a timely answer and who is determined
in an initial decision to be liable for a civil penalty or assessment
may appeal such decision to the authority head by filing a notice of
appeal with the authority head in accordance with this section.
(b)(1) No notice of appeal may be filed until the time period for
filing a motion for reconsideration under 16.38 has expired.
(2) If a motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ denies the motion or
issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ issues the initial
decision.
(4) The authority head may extend the initial 30 days period for an
additional 30 days if the defendant files with the authority head a
request for extension within the initial 30 days period and shows good
cause.
(c) If the defendant files a timely notice of appeal with the
authority head, the ALJ shall forward the notice of appeal and 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 agency 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 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, prior to the issuance of the authority head's decision that
additional evidence not presented at such hearing is material and that
there were reasonable grounds for the failure to present such evidence
at the 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
to the ALJ with a copy of the decision of the authority head. At the
same time the authority head shall serve the defendant with a statement
describing the defendant's right to seek judicial review.
(l) Unless a petition for judicial 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 16.3 is final and is
not subject to judicial review.
31 CFR 16.40 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. In such a case, the authority head may order the
process resumed only upon receipt of the written authorization of the
Attorney General.
31 CFR 16.41 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.
31 CFR 16.42 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.
31 CFR 16.43 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.
31 CFR 16.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under 16.42 or 16.43, or any
amount agreed upon in a compromise or settlement under 16.46, 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.
31 CFR 16.45 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).
31 CFR 16.46 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 16.42 or during the pendency of any action to collect penalties
and assessments under 16.43.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
16.42 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 and signed by all
parties and their representatives.
31 CFR 16.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in 16.8 within 6 years after the date
on which such claim or statement is made.
(b) If the defendant fails to file a timely answer, service of a
notice under 16.10(b) shall be deemed a notice of hearing for purposes
of this section.
(c) The time limits of this statute of limitations may be extended by
agreement of the parties.
31 CFR 16.47 PART 17 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS
OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF THE
TREASURY
Sec.
17.101 Purpose.
17.102 Application.
17.103 Definitions.
17.104 -- 17.109 (Reserved)
17.110 Self-evaluation.
17.111 Notice.
17.112 -- 17.129 (Reserved)
17.130 General prohibitions against discrimination.
17.131 -- 17.139 (Reserved)
17.140 Employment.
17.141 -- 17.148 (Reserved)
17.149 Program accessibility: Discrimination prohibited.
17.150 Program accessibility: Existing facilities.
17.151 Program accessibility: New construction and alterations.
17.152 -- 17.159 (Reserved)
17.160 Communications.
17.161 -- 17.169 (Reserved)
17.170 Compliance procedures.
17.171 -- 17.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 56 FR 40788, Aug. 16, 1991, unless otherwise noted.
31 CFR 17.101 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 (''section 504'') to prohibit discrimination on the basis of
handicap in programs or activities conducted by Executive agencies or
the United States Postal Service.
31 CFR 17.102 Application.
This part applies to all programs or activities conducted by the
agency, except for programs or activities conducted outside the United
States that do not involve individuals with handicaps in the United
States.
31 CFR 17.103 Definitions.
For purposes of this part, the term --
(a) Agency means the Department of the Treasury.
(b) Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
(c) Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunications
devices for deaf persons (TDD's), interpreters, notetakers, written
materials and other similar services and devices.
(d) Complete complaint means a written statement that contains the
complainant's name and address, and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes of individuals with
handicaps shall also identify (where possible) the alleged victims of
discrimination.
(e) Facility means all or any portion of a building, structure,
equipment, road, walk, parking lot, rolling stock, or other conveyance,
or other real or personal property.
(f) Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more of the
individual's major life activities, has a record of such an impairment,
or is regarded as having such an impairment. As used in this
definition, the phrase: (1) Physical or mental impairment includes:
(i) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs, cardiovascular; reproductive, digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or (ii) any
mental or psychological disorder such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific learning
disabilities. The term physical or mental impairment includes, but is
not limited to, such diseases and conditions as orthopedic, visual,
speech and hearing impairments, cerebral palsy, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, 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 of the individual's major life
activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this
definition but is treated by the agency as having such an impairment.
(g) Qualified individual with handicaps means -- (1) With respect to
an agency program or activity under which a person is required to
perform services or to achieve a level of accomplishment, an individual
with handicaps who meets the essential eligibility requirements and who
can achieve the purpose of the program or activity without modifications
in the program or activity that the agency can demonstrate would result
in a fundamental alteration in the nature of the program; and
(2) With respect to any other program or activity, an individual with
handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(3) For purposes of employment, ''qualified handicapped person'' is
defined in 29 CFR 1613.702(f), which is made applicable to this part by
17.140.
(h) 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. As used in
this part, section 504 applies only to programs or activities conducted
by Executive agencies and not to federally assisted programs.
17.104 -- 17.109 (Reserved)
31 CFR 17.110 Self-evaluation.
(a) The agency shall, by two years after the effective date of this
part, evaluate its current policies and practices, and the effects
thereof, to determine if they meet the requirements of this part. To
the extent modification of any such policy and practice is required, the
agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process.
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspection: (1) A description of areas examined and any problems
identified; and
(2) A description of any modifications made; and
(3) A list of participants in the self-evaluation process.
31 CFR 17.111 Notice.
The agency shall make available to all Treasury employees, and to all
interested persons, as appropriate, information regarding the provisions
of this part and its applicability to the programs or activities
conducted by the agency, and make such information available to them in
such a manner as is necessary to apprise them of the protections against
discrimination assured them by section 504 and this part.
17.112 -- 17.129 (Reserved)
31 CFR 17.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps in the United States,
shall, by reason of his or her handicap, be excluded from the
participation in, be denied the benefits of, or otherwise be subjected
to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not
directly or through contractual, licensing, or other arrangements, on
the basis of handicap --
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits or services that
are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of 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) 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 individuals with handicaps and for
nonhandicapped persons, but must afford individuals with handicaps 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
appropriate to the individual's needs.
(3) Even if the agency is permitted, under paragraph (b)(1)(iv) of
this section, to operate a separate or different program for individuals
with handicaps or for any class of individuals with handicaps, the
agency must permit any qualified individual with handicaps who wishes to
participate in the program that is not separate or different to do so.
(4) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified individuals with handicaps to discrimination on
the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(5) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(6) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(7) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
17.131 -- 17.139 (Reserved)
31 CFR 17.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the Department. 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 of federally
conducted programs or activities.
17.141 -- 17.148 (Reserved)
31 CFR 17.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 17.150, no qualified individual with
handicaps shall, because the agency's facilities are inaccessible to or
unusable by individuals with handicaps, be denied the benefits of, be
excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the agency.
31 CFR 17.150 Program accessibility; Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not require the agency --
(1) To make structural alterations in each of its existing facilities
in order to make them accessible to and usable by individuals with
handicaps where other methods are effective in achieving compliance with
this section; or
(2) To take any action that it can demonstrate would result in a
fundamental alteration in the nature of a program or activity or in
undue financial and administrative burdens. In those circumstances
where agency personnel believe that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the agency has the burden of
proving that compliance with the 17.150(a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The agency, in making alterations to
existing buildings, shall meet accessibility requirements to the extent
compelled by the Architectural Barriers Act of 1968, as amended (42
U.S.C. 4151-4157), and any regulations implementing it. In choosing
among available methods for meeting the requirements of this section,
the agency shall give priority to those methods that offer programs and
activities to qualified individuals with handicaps in the most
integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section within sixty (60) days of the
effective date of this part except that where structural changes in
facilities are undertaken, such 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.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency 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 or organizations
representing individuals with handicaps, to participate in the
development of the transition plan by submitting comments (both
telephonic and written). A copy of the transition plan shall be made
available for public inspection. The plan shall at a minimum --
(1) Identify physical obstacles in the agency's facilities that limit
the physical 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.
31 CFR 17.151 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 agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 through 101-19.607 apply to buildings
covered by this section.
17.152 -- 17.159 (Reserved)
31 CFR 17.160 Communications.
(a) The agency shall take appropriate steps to effectively
communicate with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal nature
to applicants or participants in programs.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, the agency shall use telecommunication devices for deaf
persons (TDD's) or equally effective telecommunication systems to
communicate with persons with impaired hearing.
(b) The agency shall make available to interested persons, including
persons with impaired vision or hearing, information as to the existence
and location of accessible services, activities, and facilities.
(c) The agency shall post notices at a primary entrance to each of
its inaccessible facilities, directing users to an accessible facility,
or to a location at which they can obtain information about accessible
facilities. The international symbol for accessibility shall be used at
each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens.
In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 17.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all resources available for use in the
funding and operation of the conducted program or activity and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maxium extent possible,
individuals with handicaps receive the benefits and services of the
program or activity.
17.161 -- 17.169 (Reserved)
31 CFR 17.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) All other complaints alleging violations of section 504 may be
sent to the Director, Office of Equal Opportunity Program, Department of
the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. The
Deputy Assistant Secretary for Departmental Finance and Management shall
be responsible for coordinating implementation of this section.
(d)(1) Any person who believes that he or she has been subjected to
discrimination prohibited by this part may by him or herself or by his
or her authorized representative file a complaint. Any person who
believes that any specific class of persons has been subjected to
discrimination prohibited by this part and who is a member of that class
or the authorized representative of a member of that class may file a
complaint.
(2) The agency shall accept and investigate all complete complaints
over which it has jurisdiction.
(3) All complete complaints must be filed within 180 days of the
alleged act of discrimination. The agency may extend this time period
for good cause.
(e) If the agency receive a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g)(1) Within 180 days of the receipt of a complete complaint over
which it has jurisdiction, the agency shall notify the complainant of
the results of the investigation in a letter containing --
(i) Findings of fact and conclusions of law;
(ii) A description of a remedy for each violation found; and
(iii) A notice of the right to appeal.
(2) Agency employees are required to cooperate in the investigation
and attempted resolution of complaints. Employees who are required to
participate in any investigation under this section shall do so as part
of their official duties and during the course of regular duty hours.
(3) If a complaint is resolved informally, the terms of the agreement
shall be reduced to writing and made part of the complaint file, with a
copy of the agreement provided to the complainant. The written
agreement shall describe the subject matter of the complaint and any
corrective action to which the parties have agreed.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 60 days of receipt from
the agency of the letter required by 17.170(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the Director,
Human Resources Directorate, or his or her designee, who will issue the
final agency decision which may include appropriate corrective action to
be taken by the agency.
(j) The agency shall notify the complainant of the results of the
appeal within 30 days of the receipt of the appeal. If the agency
determines that it needs additional information from the complainant, it
shall have 30 days from the date it received 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 for an individual case when the Assistant Secretary for
Departmental Finance and Management determines that there is good cause,
based on the particular circumstances of that case, for the extension.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies or may contract with a
nongovernment investigator to perform the investigation, but the
authority for making the final determination may not be delegated to
another agency.
17.171 -- 17.999 (Reserved)
31 CFR 17.170 PART 18 -- TEMPORARY REGULATIONS RELATING TO THE TAX
TREATMENT OF CONRAIL PUBLIC SALE
Authority: Sec. 8021, Omnibus Budget Reconciliation Act of 1986,
Pub. L. 99-509, 100 Stat. 1874.
31 CFR 18.0 Tax treatment of Conrail public sale.
(a) Scope. Subtitle A of Title VIII of the Omnibus Budget
Reconciliation Act of 1986 (the ''Act'') provides that, for Federal
income tax purposes, new Conrail shall be treated as a new corporation
that purchased all of the assets of old Conrail as of the purchase date
for an amount equal to the deemed purchase price. This section provides
rules for determining the Federal income tax treatment of new Conrail in
connection with the public sale of Conrail common stock pursuant to the
Act. The rules contained in this section are applicable only to the tax
treatment of Conrail resulting from the public sale and no inferences
should be made with respect to the tax treatment of Conrail or of any
other taxpayer in other transactions.
(b) Applicable rules. Except as hereinafter provided, the
determination of the deemed purchase price for old Conrail's assets and
the allocation of such amount as basis to the assets of new Conrail as
of the purchase date shall be based upon the rules adopted in the
temporary regulations issued under section 338(b) of the Internal
Revenue Code. (Unless otherwise indicated, all section references are
to the Internal Revenue Code of 1986). See 1.338(b)-1T, 1.338(b)-2T
and 1.338(b)-3T (26 CFR part 1). As provided in the following
paragraphs, several modifications of those rules shall be applicable to
the tax treatment of the deemed asset sale. No inference from such
special rules shall be made with respect to the tax treatment of Conrail
or any other taxpayer in any other transactions.
(c) Computation of deemed purchase price -- (1) Tentative deemed
purchase price. The tentative deemed purchase price is an amount equal
to the gross amount received from purchasers by the underwriters
pursuant to the public sale as adjusted to account for the qualified
minority stock. The tentative deemed purchase price equals such gross
amount received pursuant to the public sale multiplied by a fraction --
(i) The numerator of which is 100 percent, and
(ii) The denominator of which is a percentage equal to the ratio that
the value of the Conrail common stock sold in the public sale bears to
the value of such stock plus the value of the qualified minority stock.
For purposes of this paragraph (c)(1)(ii), each share of Conrail common
stock shall be deemed to have the same value.
(2) Qualified minority stock -- (i) Defined. The term ''qualified
minority stock'' means only the Conrail common stock held by the Conrail
ESOP as of the purchase date. For this purpose, the following stock
shall not be treated as qualified minority stock:
(A) Any Conrail common stock that Conrail is obligated under section
4024(f)(1) and (3) of the Act to contribute to the ESOP, or to
distribute to persons who are or were ESOP participants, as of the
purchase date, and
(B) Any common stock that may be held by the Conrail Equity
Corporation as of the purchase date.
(ii) Treatment of certain contributions or distributions. Any
contribution or distribution of Conrail common stock pursuant to
Conrail's obligation under section 4024(f)(1) and (3) of the Act, shall
be treated as satisfying the conditions of section 162 and shall not be
treated as an amount paid that is described in section 263(a).
(3) Deemed purchase price. The deemed purchase price is computed by
making appropriate adjustments to the tentative deemed purchase price
for the liabilities of old Conrail and other relevant items.
(i) Liabilities included in the deemed purchase price. The
liabilities that may be included in the deemed purchase price as of the
purchase date are only those described in 1.338(b)-1T(f)(2)(i) (26 CFR
part 1). Liabilities that are initially excluded from the deemed
purchase price under the preceding sentence may be taken into account in
redetermining the deemed purchase price only at the time and to the
extent such an adjustment would be permitted under
1.338(b)-1T(f)(2)(ii) and 1.338(b)-3T (26 CFR part 1).
(ii) Other relevant items. As provided in 1.338(b)-1T(g) and
1.338(b)-3T(a) (26 CFR part 1), other relevant items may arise only from
events that occur after the close of new Conrail's first taxable year.
Any events that occur before the close of new Conrail's first taxable
year are taken into account for purposes of determining the deemed
purchase price as if they had occurred on the purchase date. The only
events that may constitute another relevant item are the change in a
contingent liability of old Conrail to one which is fixed and
determinable and reductions in liabilities of Conrail (and the
liabilities to which its assets are subject) that were taken into
account in determining the deemed purchase price. No other adjustments
shall be made to the tentative deemed purchase price, including, but not
limited to, any adjustment in respect of the various statutory
obligations under the Act to which new Conrail will be subject or to
reflect additional proceeds that might have resulted if the sale of
Conrail common stock had occurred in another manner.
(iii) Deemed asset sales by old Conrail's subsidiaries. The rules of
section 338(h)(3)(B) and 1.338-4T(c)(3) (26 CFR part 1) shall apply to
the deemed acquisition of the assets of old Conrail's subsidiaries.
Thus, each of old Conrail's subsidiaries shall be treated as a new
corporation (and a subsidiary of new Conrail) that purchased all of its
assets as of the purchase date for an amount equal to the portion of the
deemed purchase price allocated to the stock of such subsidiary pursuant
to paragraph (d) of this section, as adjusted for liabilities and other
relevant items of the subsidiary.
(4) Redetermining the deemed purchase price following the close of
new Conrail's first taxable year. Other relevant items (within the
meaning of paragraph (c)(3)(ii) of this section) are accounted for in
redetermining the deemed purchase price and the related allocation of
such amount (as basis) to new Conrail assets following the close of new
Conrail's first taxable year in accordance with the rules applicable to
the redetermination of adjusted grossed-up basis in accounting for
adjustment events under 1.338(b)-3T (26 CFR part 1). For this purpose,
an ''acquisition date asset,'' as defined in 1.338(b)-3T(b)(2)(v),
means any asset held by new Conrail on the purchase date.
(d) Allocation of deemed purchase price (as basis) among assets of
new Conrail -- (1) In general. Except as expressly provided in
paragraph (d)(2) of this section, the deemed purchase price shall be
allocated as basis among the assets of new Conrail in accordance with
the temporary regulations prescribed under section 338(b). See
1.338(b)-2T (26 CFR part 1). Therefore, the deemed purchase price is
first reduced by the amount of Class I assets owned by new Conrail on
the purchase date. The remaining amount is then allocated among Class
II assets owned by new Conrail on the pruchase date in proportion to
their relative fair market values. The amount allocated to any Class II
asset may not, however, exceed the fair market value of such asset. The
amount of the deemed purchase price in excess of the amounts allocated
to Class I and Class II assets is then allocated among Class III assets
owned by new Conrail on the purchase date also in proportion to their
relative fair market values and subject to the fair market value
limitation. The amount, if any, remaining after the allocations to the
Class I, Class II, and Class III assets is allocated finally to Class IV
assets.
(2) Special rules. The following special rules and conventions apply
to the deemed asset sale:
(i) Class I and Class II assets. Notwithstanding the definitions in
1.338(b)-2T(b)(1) and (2)(ii) (26 CFR part 1),
(A) Accounts receivable and materials and supplies owned by new
Conrail shall be deemed to be Class I assets and the amount of the
deemed purchase price allocable to those assets shall be their
respective book values, and
(B) Commercial paper and repurchase agreements (within the meaning of
section 1058(b)) shall be deemed to be Class II assets.
(ii) Pension plan. Any interest of Conrail in any qualified plan
that satisfies the requirements of section 401(a) on the purchase date
shall be deemed to have no fair market value and no portion of the
deemed purchase price shall be allocated (as basis) to such interest.
(iii) Recorded and unrecorded assets. Except for the assets
identified in paragraph (d)(2)(iv) of this section, the allocation of
the deemed purchase price to Class I, Class II and Class III assets
under this paragraph (d) shall be restricted solely to those tangible
and intangible assets identified on old Conrail's most recently audited
financial statement submitted to the Interstate Commerce Commission as
of the purchase date (''Conrail's financial statement''). Thus, except
for the assets identified in paragraph (d)(2)(iv) of this section, no
portion of the deemed purchase price shall be allocated to any Class I,
Class II or Class III asset that is not identified on that financial
statement. In addition, no portion of the deemed purchase price shall
be allocated to any asset listed on Conrail's financial statement that
is not treated as an asset owned by Conrail for Federal income tax
purposes.
(iv) Safe harbor leases. The deemed acquisition by new Conrail of
old Conrail's interest in any agreements characterized as leases under
section 168(f)(8) that properly continue to be so characterized shall be
subject to the rules of 5c.168(f)(8)-2(a)(7) (26 CFR part 5c), and such
agreements shall be treated as Class III assets. For this purpose, the
fair market value of such agreements is equal to the book value of the
property that is subject to those agreements. Accordingly, to the
extent the deemed purchase price is allocated to such agreements under
this paragraph (d), such amount shall first be allocated to the lessor's
obligation to Conrail to the extent of the unpaid balance of the
obligation. Any excess over such unpaid balance shall be allocated
between any leasehold interests and purchase options in proportion to
their relative fair market values.
(v) Class III assets. For purposes of allocating the deemed purchase
price to Class III assets of new Conrail and determining the fair market
value limitation, except as provided in paragraph (d)(2)(iv) of this
section, the fair market value of all tangible assets, including land,
and any intangible assets shall be deemed to be their respective book
values.
(e) Disallowance of certain deductions. No deduction shall be
allowed to new Conrail for any amount that is paid after the date of the
public sale to employees of Conrail for services performed on or before
the date of the public sale pursuant to Conrail's obligation under
section 4024(e) of the Act (''past service liability''). Conrail's past
service liability as of the purchase date, however, shall be included in
the deemed purchase price as a liability of old Conrail under paragraph
(c) of this section. Accordingly, the disallowance of a current
deduction for Conrail's past service liability shall not prohibit a
deduction to new Conrail for the recovery of the basis in its assets
that is attributable to such liability.
(f) Definitions. For purposes of this section --
(1) Book value. The term ''book value'' means the amount reported as
the net book value of old Conrail's assets for financial accounting
purposes in its most recently audited financial statement submitted to
the Interstate Commerce Commission as of the date of the public sale.
For this purpose, the term net book value means the book value, net of
the related reserve. Notwithstanding the book value of old Conrail's
assets as determined under the preceding sentences of this paragraph
(f)(1) of this section, the term book value shall not take into account
the book value for any asset that old Conrail is not considered to own
for Federal income tax purposes.
(2) Conrail. The term ''Conrail'' means the Consolidated Rail
Corporation and, as the context may require, any corporation that was a
subsidiary of Conrail. A subsidiary of Conrail means any corporation in
which Conrail owns stock meeting the requirements of section 1504(a)(2).
(i) Old Conrail. The term ''old Conrail'' means Conrail, immediately
before the purchase date.
(ii) New Conrail. The term ''new Conrail'' means Conrail, on the
purchase date and for all periods thereafter. New Conrail shall be
treated as unrelated to old Conrail for all purposes.
(3) Date of the public sale. The date of the public sale shall be
the date on which the initial public offering is closed. For purposes
of applying section 338 and the regulations thereunder (including
1.338-4T(c)(3) and 1.338(b)-1T(f) (26 CFR part 1)), the ''acquisition
date'' is the date of the public sale.
(4) Deemed asset sale. The term ''deemed asset sale'' means the
deemed purchase of old Conrail assets by new Conrail as described in
paragraph (a) of this section.
(5) Liabilities. The liabilities of Conrail include only the
liabilities of old Conrail (and the liabilities to which its assets are
subject).
(6) Public sale. The term ''public sale'' means the sale of stock in
Conrail pursuant to a public offering under the Act. If there is more
than one public offering under the Act, such term means the sale
pursuant to the initial public offering under the Act. Any sales of
stock subsequent to the initial public offering shall be disregarded for
purposes of determining the deemed purchase price under paragraph (c) of
this section.
(7) Purchase date. The term ''purchase date'' means the beginning of
the day after the date of the public sale.
(52 FR 1452, Jan. 14, 1987)
31 CFR 18.0 PART 19 -- GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
31 CFR 18.0 Subpart A -- General
Sec.
19.100 Purpose.
19.105 Definitions.
19.110 Coverage.
19.115 Policy.
31 CFR 18.0 Subpart B -- Effect of Action
19.200 Debarment or suspension.
19.205 Ineligible persons.
19.210 Voluntary exclusion.
19.215 Exception provision.
19.220 Continuation of covered transactions.
19.225 Failure to adhere to restrictions.
31 CFR 18.0 Subpart C -- Debarment
19.300 General.
19.305 Causes for debarment.
19.310 Procedures.
19.311 Investigation and referral.
19.312 Notice of proposed debarment.
19.313 Opportunity to contest proposed debarment.
19.314 Debarring official's decision.
19.315 Settlement and voluntary exclusion.
19.320 Period of debarment.
19.325 Scope of debarment.
31 CFR 18.0 Subpart D -- Suspension
19.400 General.
19.405 Causes for suspension.
19.410 Procedures.
19.411 Notice of suspension.
19.412 Opportunity to contest suspension.
19.413 Suspending official's decision.
19.415 Period of suspension.
19.420 Scope of suspension.
31 CFR 18.0 Subpart E -- Responsibilities of GSA, Agency and
Participants
19.500 GSA responsibilities.
19.505 Department of the Treasury responsibilities.
19.510 Participant's responsibilities.
31 CFR 18.0 Subpart F -- Drug-Free Workplace Requirements (Grants)
19.600 Purpose.
19.605 Definitions.
19.610 Coverage.
19.615 Grounds for suspension of payments, suspension or termination
of grants, or suspension or debarment.
19.620 Effect of violation.
19.625 Exception provision.
19.630 Certification requirements and procedures.
19.635 Reporting of and employee sanctions for convictions of
criminal drug offenses.
Appendix A to part 19 -- Certification Regarding Debarment,
Suspension, and Other Responsibility Matters -- Primary Covered
Transactions
Appendix B to part 19 -- Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion -- Lower Tier Covered
Transactions
Appendix C to part 19 -- 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.); 31 U.S.C. 321.
Source: 53 FR 19187, and 19204, May 26, 1988, unless otherwise
noted. Redesignated at 54 FR 4958, Jan. 31, 1989.
Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21679, May 25, 1990.
31 CFR 18.0 Subpart A -- General
31 CFR 19.100 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
19.105(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.
31 CFR 19.105 Definitions.
(a) Adequate evidence. Information sufficient to support the
reasonable belief that a particular act or omission has occurred.
(b) Affiliate. Persons are affiliates of each another if, directly
or indirectly, either one controls or has the power to control the
other, or, a third person controls or has the power to control both.
Indicia of control include, but are not limited to: interlocking
management or ownership, identity of interests among family members,
shared facilities and equipment, common use of employees, or a business
entity organized following the suspension or debarment of a person which
has the same or similar management, ownership, or principal employees as
the suspended, debarred, ineligible, or voluntarily excluded person.
(c) Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
(d) Civil judgment. The disposition of a civil action by any court
of competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability
under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
(e) Conviction. A judgment of conviction of a criminal offense by
any court of competent jurisdiction, whether entered upon a verdict or a
plea, including a plea of nolo contendere.
(f) Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ''debarred.''
(g) Debarring official. An official authorized to impose debarment.
The debarring official is either:
(1) The agency head, or
(2) An official designated by the agency head.
(h) Indictment. Indictment for a criminal offense. An information
or other filing by competent authority charging a criminal offense shall
be given the same effect as an indictment.
(i) Ineligible. Excluded from participation in Federal
nonprocurement programs pursuant to a determination of ineligibility
under statutory, executive order, or regulatory authority, other than
Executive Order 12549 and its agency implementing regulations; for
exemple, excluded pursuant to the Davis-Bacon Act and its implementing
regulations, the equal employment opportunity acts and executive orders,
or the environmental protection acts and executive orders. A person is
ineligible where the determination of ineligibility affects such
person's eligibility to participate in more than one covered
transaction.
(j) Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State of local
government or quasi-governmental authority is a party. The term
includes appeals from such proceedings.
(k) Nonprocurement List. The portion of the List of Parties Excluded
from Federal Procurement or Nonprocurement Programs complied, maintained
and distributed by the General Services Administration (GSA) containing
the names and other information about persons who have been debarred,
suspended, or voluntarily excluded under Executive Order 12549 and these
regulations, and those who have been determined to be ineligible.
(l) Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have
been received by the addressee five days after being properly sent to
the last address known by the agency.
(m) Participant. Any person who submits a proposal for, enters into,
or reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
(n) Person. Any individual, corporation, partnership, association,
unit of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
(o) Preponderance of the evidence. Proof by information that,
compared with that opposing it, leads to the conclusion that the fact at
issue is more probably true than not.
(p) Principal. Officer, director, owner, partner, key employee, or
other person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
(1) Principal investigators.
(q) Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
(r) Respondent. A person against whom a debarment or suspension
action has been initiated.
(s) State. Any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the
State government if it has a written determination from a State
government that such State considers that instrumentality to be an
agency of the State government.
(t) Suspending official. An official authorized to impose
suspension. The suspending official is either:
(1) The agency head, or
(2) An official designated by the agency head.
(u) Suspension. An action taken by a suspending official in
accordance with these regulations that immediately excludes a person
from participating in covered transactions for a temporary period,
pending completion of an investigation and such legal, debarment, or
Program Fraud Civil Remedies Act proceedings as may ensue. A person so
excluded is ''suspended.''
(v) Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
31 CFR 19.110 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,'' 19.200, ''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
19.110(a). Sections 19.325, ''Scope of debarment,'' and 19.420, ''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.
31 CFR 19.115 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.
31 CFR 19.115 Subpart B -- Effect of Action
31 CFR 19.200 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 19.215.
(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 19.110(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.
31 CFR 19.205 Ineligible persons.
Persons who are ineligible, as defined in 19.105(i), are excluded in
accordance with the applicable statutory, executive order, or regulatory
authority.
31 CFR 19.210 Voluntary exclusion.
Persons who accept voluntary exclusions under 19.315 are excluded in
accordance with the terms of their settlements. Department of the
Treasury shall, and participants may, contact the original action agency
to ascertain the extent of the exclusion.
31 CFR 19.215 Exception provision.
Department of the Treasury 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 19.200 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 19.505(a).
31 CFR 19.220 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 19.215.
31 CFR 19.225 Failure to adhere to restrictions.
Except as permitted under 19.215 or 19.220 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.
31 CFR 19.225 Subpart C -- Debarment
31 CFR 19.300 General.
The debarring official may debar a person for any of the causes in
19.305, using procedures established in 19.310 through 19.314. 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.
31 CFR 19.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
19.300 through 19.314 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 19.215 or 19.220;
(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 19.315 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 19.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
(53 FR 19204, May 26, 1988, as amended at 54 FR 4950 and 4958, Jan.
31, 1989)
31 CFR 19.310 Procedures.
Department of the Treasury shall process debarment actions as
informally as practicable, consistent with the principles of fundamental
fairness, using the procedures in 19.311 through 19.314.
31 CFR 19.311 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.
31 CFR 19.312 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 19.305 for proposing
debarment;
(d) Of the provisions of 19.311 through 19.314, and any other
Department of the Treasury procedures, if applicable, governing
debarment decisionmaking; and
(e) Of the potential effect of a debarment.
31 CFR 19.313 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.
31 CFR 19.314 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 601.915.
(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.
31 CFR 19.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, Department of the
Treasury may, at any time, settle a debarment or suspension action.
(b) If a participant and the agency agree to a voluntary exclusion of
the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see subpart E).
31 CFR 19.320 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 19.305(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
19.311 through 19.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such
a request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed;
or
(5) Other reasons the debarring official deems appropriate.
(53 FR 19204, May 26, 1988, as amended at 54 FR 4950 and 4958, Jan.
31, 1989)
31 CFR 19.325 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 19.311 through 19.314).
(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.
31 CFR 19.325 Subpart D -- Suspension
31 CFR 19.400 General.
(a) The suspending official may suspend a person for any of the
causes in 19.405 using procedures established in 19.410 through
19.413.
(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 19.405, 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.
31 CFR 19.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
19.400 through 19.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in 19.405(a); or
(2) That a cause for debarment under 19.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of
suspension actions.
31 CFR 19.410 Procedures.
(a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
(b) Decisionmaking process. Department of the Treasury shall process
suspension actions as informally as practicable, consistent with
principles of fundamental fairness, using the procedures in 19.411
through 19.413.
31 CFR 19.411 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 19.405 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 19.411 through 19.413 and any other
Department of the Treasury procedures, if applicable, governing
suspension decisionmaking; and
(g) Of the effect of the suspension.
31 CFR 19.412 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.
31 CFR 19.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see 19.320(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.
31 CFR 19.415 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.
31 CFR 19.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see 19.325), except that the procedures of 19.410 through 19.413
shall be used in imposing a suspension.
31 CFR 19.420 Subpart E -- Responsibilities of GSA, Agency and Participants
31 CFR 19.500 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.
31 CFR 19.505 Department of the Treasury responsibilities.
(a) The agency shall provide GSA with current information concerning
debarments, suspension, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the agency shall also
provide GSA and OMB with information concerning all transactions in
which Department of the Treasury has granted exceptions under 19.215
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 19.200(b) and of the
exceptions granted under 19.215 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.
31 CFR 19.510 Participants' responsibilities.
(a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in Appendix A to this
part for it and its principals at the time the participant submits its
proposal in connection with a primary covered transaction, except that
States need only complete such certification as to their principals.
Participants may decide the method and frequency by which they determine
the eligibility of their principals. In addition, each participant may,
but is not required to, check the Nonprocurement List for its principals
(Tel. ). Adverse information on the certification will not necessarily
result in denial of participation. However, the certification, and any
additional information pertaining to the certification submitted by the
participant, shall be considered in the administration of covered
transactions.
(b) Certification by participants in lower tier covered transactions.
(1) Each participant shall require participants in lower tier covered
transactions to include the certification in Appendix B to this part for
it and its principals in any proposal submitted in connection with such
lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction by any Federal agency, unless it
knows that the certification is erroneous. Participants may decide the
method and frequency by which they determine the eligiblity of their
principals. In addition, a participant may, but is not required to,
check the Nonprocurement List for its principals and for participants
(Tel. ).
(c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Department of the Treasury 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.
31 CFR 19.510 Subpart F -- Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21697, May 25, 1990, unless otherwise noted.
31 CFR 19.600 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.
31 CFR 19.605 Definitions.
(a) Except as amended in this section, the definitions of 19.105
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.
31 CFR 19.610 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.
31 CFR 19.615 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 19.630;
(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) through (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.
31 CFR 19.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
19.615, 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 19.320(a)(2) of this part).
31 CFR 19.625 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.
31 CFR 19.630 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.
31 CFR 19.635 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)
31 CFR 19.635 Appendices to part 19
31 CFR 19.635 Pt. 19, App. A
31 CFR 19.635 Appendix A to Part 19 -- 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.
31 CFR 19.635 Pt. 19, App. B
31 CFR 19.635 Appendix B to Part 19 -- 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.
31 CFR 19.635 Pt. 19, App. C
31 CFR 19.635 Appendix C to Part 19 -- Certification Regarding
Drug-Free Workplace Requirements
1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
2. The certification set out below is a material representation of
fact upon which reliance is placed when the agency awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the agency, in addition to any other remedies available
to the Federal Government, may take action authorized under the
Drug-Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals, need
not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the
performance of the grant, the grantee shall inform the agency of the
change(s), if it previously identified the workplaces in question (see
paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal statute
involving the manufacture, distribution, dispensing, use, or possession
of any controlled substance;
Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged in
the performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the
grantee's payroll; or employees of subrecipients or subcontractors in
covered workplaces).
A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform
employees about --
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a)
that, as a condition of employment under the grant, the employee will --
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the
identification number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted --
(1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
(g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
B. The grantee may insert in the space provided below the site(s) for
the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, state, zip code)
-- -- --
Check if there are workplaces on file that are not identified here.
(a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include the
identification number(s) of each affected grant.
(55 FR 21690, 21697, May 25, 1990)
31 CFR 19.635 PART 21 -- NEW RESTRICTIONS ON LOBBYING
31 CFR 19.635 Subpart A -- General
Sec.
21.100 Conditions on use of funds.
21.105 Definitions.
21.110 Certification and disclosure.
31 CFR 19.635 Subpart B -- Activities by Own Employees
21.200 Agency and legislative liaison.
21.205 Professional and technical services.
21.210 Reporting.
31 CFR 19.635 Subpart C -- Activities by Other Than Own Employees
21.300 Professional and technical services.
31 CFR 19.635 Subpart D -- Penalties and Enforcement
21.400 Penalties.
21.405 Penalty procedures.
21.410 Enforcement.
31 CFR 19.635 Subpart E -- Exemptions
21.500 Secretary of Defense.
31 CFR 19.635 Subpart F -- Agency Reports
21.600 Semi-annual compilation.
21.605 Inspector General report.
Appendix A to part 21 -- Certification Regarding Lobbying
Appendix B to part 21 -- Disclosure Form to Report Lobbying
Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 31 U.S.C.
321.
Source: 55 FR 6737, 6751, Feb. 26, 1990 (interim), unless otherwise
noted.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
31 CFR 19.635 Subpart A -- General
31 CFR 21.100 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.
31 CFR 21.105 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.
31 CFR 21.110 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
paragraph (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
paragraph (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 paragraph
(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.
31 CFR 21.110 Subpart B -- Activities by Own Employees
31 CFR 21.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in 21.100 (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 Pub.
L. 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
31 CFR 21.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 21.100 (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.
31 CFR 21.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
31 CFR 21.210 Subpart C -- Activities by Other Than Own Employees
31 CFR 21.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 21.100 (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 21.110 (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.
31 CFR 21.300 Subpart D -- Penalties and Enforcement
31 CFR 21.400 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.
31 CFR 21.405 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.
31 CFR 21.410 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.
31 CFR 21.410 Subpart E -- Exemptions
31 CFR 21.500 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.
31 CFR 21.500 Subpart F -- Agency Reports
31 CFR 21.600 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.
31 CFR 21.605 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.
31 CFR 21.605 Pt. 21, App. A
31 CFR 21.605 Appendix A to Part 21 -- 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.
31 CFR 21.605 Pt. 21, App. B
31 CFR 21.605 Appendix B to Part 21 -- Disclosure Form to Report
Lobbying
insert illustration 532
insert illustration 533
insert illustration 534
31 CFR 21.605 PART 25 -- PREPAYMENT OF FOREIGN MILITARY SALES LOANS MADE BY THE DEFENSE SECURITY ASSISTANCE AGENCY AND FOREIGN MILITARY SALES LOANS MADE BY THE FEDERAL FINANCING BANK AND GUARANTEED BY THE DEFENSE SECURITY ASSISTANCE AGENCY
31 CFR 21.605 Subpart A -- General
Sec.
25.100 Definitions.
25.101 OMB control number.
31 CFR 21.605 Subpart B -- Qualifications for Prepayment
25.200 General rules.
31 CFR 21.605 Subpart C -- Procedures
25.300 Application procedure.
25.301 Approval procedure.
25.302 Application withdrawal; effect of approval.
25.303 Closing procedure.
31 CFR 21.605 Subpart D -- Form of Private Loan
25.400 Loan provisions.
25.401 Fees.
25.402 Transferability.
25.403 Registration.
25.404 Non-separability.
25.405 Form of guaranty.
25.406 Savings clause.
Authority: Title III, Pub. L. 100-202; 31 U.S.C. 321.
Source: 53 FR 25426, July 6, 1988, unless otherwise noted.
31 CFR 21.605 Subpart A -- General
31 CFR 25.100 Definitions.
In this part, unless the context indicates otherwise:
(a) Act means the provisions entitled ''Foreign Military Sales Debt
Reform,'' of Title III, entitled ''Military Assistance,'' of an act
entitled ''Foreign Operations, Export Financing and Related Programs
Appropriations Act, 1988'' (Pub. L. 100-202), enacted December 22, 1987.
(b) AECA means the Arms Export Control Act, as amended (22 U.S.C.
2751 et seq.).
(c) Borrower means the obligor on an FMS Advance.
(d) Closing date means:
(1) With respect to the prepayment of the amounts permitted by this
part to be prepaid of FMS Loans held by DSAA, the date designated by the
mutual agreement of both the Borrower and DSAA on which the Guaranty
will be attached to the Private Loan Note or the Private Loan Portion
Notes, as the case may be, the Private Loan will be funded, and the
Total Permitted Prepayment Amount, or the portion thereof which the
Borrower has selected to prepay, will be prepaid; and
(2) With respect to the prepayment of the amounts permitted by this
part to be prepaid of FMS Loans held by the FFB and guaranteed by DSAA,
the date designated by the mutual agreement of the Borrower, the FFB,
and DSAA on which the Guaranty will be attached to the Private Loan Note
or the Private Loan Portion Notes, as the case may be, the Private Loan
will be funded, and the Total Permitted Prepayment Amount, or Portion
thereof which the Borrower has selected to prepay, will be prepaid.
(e) Derivative means any right, interest, instrument or security
issued or traded on the credit of the Private Loan or any Private Loan
Portion, including but not limited to:
(1) Any participation share of, or undivided ownership or other
equity interest in, the Private Loan or any Private Loan Portion;
(2) Any note, bond or other debt instrument or obligation which is
collateralized or otherwise secured by a pledge of, or secruity interest
in, the Private Loan or any Private Loan Portion; or
(3) Any such interest in such an interest or any such instrument
secured by such an instrument.
(f) DSAA means the Defense Security Assistance Agency, an agency
within the Department of Defense.
(g) Eligible FMS advance means any FMS Advance which:
(1) Was outstanding on December 22, 1987;
(2) Has principal amounts becoming due and payable after September
30, 1989; and
(3) Bears interest at a rate equal to or greater than 10 percentum
per annum.
Eligible FMS Advance may include FMS Advances meeting the criteria of
Eligible FMS Advance which are made on account of FMS Loans even when
such FMS Loans do not, in themselves, meet the criteria of Eligible FMS
Loan.
(h) Eligible FMS loan means any FMS Loan which:
(1) Was outstanding on December 22, 1987;
(2) Has principal amounts becoming due and payable after September
30, 1989; and
(3) Bears interest pursuant to the terms of the loan agreement
relating thereto at a consolidated rate equal to or greater than 10
percentum per annum.
Eligible FMS Loans may include FMS Advances which are made on account
of FMS Loans meeting the criteria of Eligible FMS Loan even when such
FMS Advances do not, in themselves, meet the criteria of Eligible FMS
Advance.
(i) Eligible private lender means either:
(1) Any of the following entities:
(i) Any banking, savings, or lending institution, or any subsidiary
or affiliate thereof, chartered or otherwise lawfully organized under
the laws of any State, the District of Columbia, the United States or
any territory or possession of the United States, including, but not
limited to, any bank, trust company, industrial bank, investment banking
company, savings association, savings and loan association, building and
loan association, savings bank, credit union, or finance company, which
is doing business in the United States;
(ii) Any broker or dealer registered with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934;
(iii) Any company lawfully organized as an insurance company, and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State; or
(iv) Any United States pension fund; or
(2) Any trust or other special purpose financing entity which is
funded initially by an entity or entities of the type described in
paragraph (i)(1) of this section.
(j) FFB means the Federal Financing Bank, and instrumentality and
wholly-owned corporation of the United States.
(k) FMS means Foreign Military Sales.
(l) FMA advance means:
(1) A disbursement of funds made pursuant to a loan agreement between
the Borrower and DSAA, which loan agreement provides for making of an
FMS Loan; or
(2) A disbursement of funds made pursuant to a loan agreement between
the Borrower and the FFB, which loan agreement provides for the making
of an FMS Loan.
(m) FMS loan means either:
(1) A loan made directly by the Secretary of Defense pursuant to
section 23 of AECA; or
(2) A loan made by the FFB and guaranteed by the Secretary of Defense
pursuant to section 24 of AECA; and ''FMS Loans'' mean the aggregate of
such loans made to or for the account of a Borrower.
(n) Guaranteed-amount debt derivative means any note, bond or other
debt instrument or obligation which is collateralized or otherwise
secured by a pledge of, or security interest in, the Private Loan Note
or any Private Loan Portion Note or any Derivative, as the case may be,
which has an exclusive or preferred claim to the Guaranteed Loan Amount
or the respective Guaranteed Loan Portion Amount or the respective
Guaranteed-Amount Equivalent, as the case may be.
(o) Guaranteed-amount equity derivative means any participation share
of, or undivided ownership or other equity interest in, the Private Loan
or any Private Loan Portion or any Derivative, as the case may be, which
has an exclusive or preferred claim to the Guaranteed Loan Amount or the
respective Guaranteed Loan Portion Amount or the respective
Guaranteed-Amount Equivalent, as the case may be.
(p) Guaranteed-amount equivalent means:
(1) With respect to any Derivative which is equal in principal amount
to the Private Loan or any Private Loan Portion, that amount of payment
on account of such Derivative which is equal to the Guaranteed Loan
Amount or the respective Guaranteed Loan Portion Amount, as the case may
be; or
(2) With respect to any Derivatives which in the aggregate are equal
in principal amount to the Private Loan or any Private Loan Portion,
that amount of payment on account of such derivatives which is equal to
the Guaranteed Loan Amount or the respective Guaranteed Loan Portion
Amount, as the case may be.
(q) Guaranteed loan amount means that amount of payment on account of
the Private Loan which is guaranteed under the terms of the Guaranty.
(r) Guaranteed loan portion amount means that amount of payment on
account of any Private Loan Portion which is guaranteed under the terms
of the Guaranty.
(s) Guaranty means either a new guaranty of the United States issued
by DSAA or an existing guaranty of the United States transferred by
DSAA, in the form of guaranty set forth in 25.405, which guaranty will
be attached to a Private Loan Note or Private Loan Portion Note.
(t) Interest rate difference means the difference between:
(1) The cost of funds to the Borrower for the Private Loan (expressed
in terms of the true rate of interest applicable to the Private Loan) if
paragraph (a) of 25.404 applies to the Private Loan; and
(2) The cost of funds to the Borrower for the Private Loan (expressed
in terms of the true rate of interest applicable to the Private Loan) if
paragraph (a) of 25.404 does not apply to the Private Loan.
(u) Non-registered obligation means a bearer obligation which does
not comply with all of the registration requirements of the Internal
Revenue Code.
(v) Permitted arrears prepayment amount means the sum of all arrears,
if any, on all FMS Loans, which arrears are outstanding on the Closing
Date.
(w) Permitted guaranty holder means:
(1) An individual domiciled in the United States;
(2) A corporation incorporated, chartered or otherwise organized in
the United States; or
(3) A partnership or other juridical entity doing business in the
United States.
(x) Permitted P&I prepayment amount means, with respect to each
Eligible FMS Loan or Eligible FMS Advance, as the case may be, the sum
of:
(1) All principal amounts which become due and payable after
September 30, 1989, on the respective Eligible FMS Loan or Eligible FMS
Advance; and
(2) All unpaid interest, if any, on the respective Eligible FMS Loan
or Eligible FMS Advance accrued as of the Closing Date.
(y) Private loan means, collectively, the loan or loans that is or
are obtained by the Borrower from an Eligible Private Lender to prepay
the Total Permitted Prepayment Amount, or the portion thereof which the
Borrower has selected to prepay.
(z) Private loan note means, collectively, the note or notes executed
and delivered by the Borrower to evidence the Private Loan.
(aa) Private loan portion means any portion of the Private Loan.
(bb) Private loan portion note means any note executed and delivered
by the Borrower to evidence a Private Loan Portion.
(cc) Total permitted prepayment amount means the sum of:
(1) The aggregate of the respective Permitted P&I Prepayment amount
for all Eligible FMS Loans and all Eligible FMS Advances on account of
FMS Loans which FMS Loans do not, in themselves, meet the criteria of
Eligible FMS Loans; and
(2) The Permitted Arrears Prepayment Amount.
(dd) Unguaranteed-amount equivalent means all amounts of payment on
account of any Derivative other than the respective Guaranteed-Amount
Equivalent.
(ee) Unguaranteed loan amount means all amounts of payment on account
of the Private Loan other than the Guaranteed Amount.
(ff) Unguaranteed loan portion amount means all amounts of payment on
account of any Private Loan Portion other than the respective Guaranteed
Loan Portion Amount.
31 CFR 25.101 OMB control number.
The reporting requirements in this part have been approved under the
Office of Management and Budget control number 1505-0109.
31 CFR 25.101 Subpart B -- Qualifications for Prepayment
31 CFR 25.200 General rules.
(a) To qualify for a loan prepayment at par pursuant to subsection
(a) of the Act, a Borrower must have an Eligible FMS Loan or an Eligible
FMS Advance.
(b) A Borrower may prepay the Total Permitted Prepayment Amount in
portions using more than one closing; however, all prepayments of the
Total Permitted Prepayment Amount must have a Closing Date that is not
later than September 30, 1991.
(c) A Borrower may prepay all or a portion of the Total Permitted
Prepayment Amount; however, if a Borrower selects to prepay any
Permitted P&I Prepayment Amount of an FMS Advance, the Borrower must
prepay the entire Permitted P&I Prepayment Amount of such FMS Advance.
(d) If the payment billings of an FMS Loan have been consolidated in
accordance with the terms of the respective loan agreement, and if any
principal payments have been made on account of the FMS Loan, then the
outstanding principal balances of any Eligible FMS Advances shall be
determined in accordance with the principal of ''first disbursed, first
repaid,'' that is, advances on account of the FMS Loan shall be deemed
to have been repaid in the chronological order in which they were
disbursed.
31 CFR 25.200 Subpart C -- Procedures
31 CFR 25.300 Application procedure.
(a) Each Borrower that wishes to prepay at par the Total Permitted
Prepayment Amount, or any portion thereof, must submit a written
prepayment application. To be considered complete, a prepayment
application must contain the following information and materials:
(1) Part I of the prepayment application shall be the identification
of each Eligible FMS Loan or Eligible FMS Advance, as the case may be,
with respect to which the Borrower has selected to prepay the amount
thereof permitted by this part to be prepaid, setting forth with respect
to each such Eligible FMS Loan or Eligible FMS Advance:
(i) The date on which the Eligible FMS Advance was made or the date
on which the Eligible FMS Loan was signed;
(ii) The original amount of the Eligible FMS Loan or Eligible FMS
Advance;
(iii) The principal and interest payment schedule of the Eligible FMS
Loan or Eligible FMS Advance; and
(iv) The maturity of the Eligible FMS Loan or Eligible FMS Advance.
(2) Part II of the prepayment application shall be the Borrower's
estimate of the Permitted Arrears Prepayment Amount calculated as of the
date of the application;
(3) Part III of the prepayment application shall be a description of
each Private Loan, 90 percent of which the Borrower seeks to have
guaranteed, setting forth with respect to each Private Loan:
(i) The total amount of the Private Loan,
(ii) The proposed principal and interest payment schedule of the
Private Loan,
(iii) The proposed maturity of the Private Loan, and
(iv) The identity of each Eligible FMS Loan or Eligible FMS Advance
with respect to which amount thereof permitted by this part to be
prepaid is to be prepaid with the proceeds of the Private Loan;
(4) Part IV of the prepayment application shall be all material
transaction documents, in substantially final form, relating to the
prepayment of the Total Permitted Prepayment Amount, or the portion
thereof which the Borrower has selected to prepay, with the proceeds of
the Private Loan; and
(5) Part V of the prepayment application shall be the name, address,
and telephone number of the Borrower's contact person with whom the FFB
or DSAA will communicate to arrange for prepayment and closing.
(b) Each prepayment application shall be submitted in triplicate to
DSAA at the following address: Defense Security Assistance Agency, The
Pentagon, Washington, DC 20301-2800, Attention: Deputy Comptroller.
(c) A Borrower wishing to obtain preliminary, nonbinding review of a
plan to prepay at par the Total Permitted Prepayment Amount, or any
portion thereof, may, at the Borrower's option, prior to submitting a
prepayment application in accordance with paragraph (a) of this section,
submit to DSAA, at the address set forth in paragraph (b) of this
section, a written plan of prepayment. To qualify for review, a plan of
prepayment must include a detailed description of the proposed financing
structure clearly addressing the terms and conditions of the proposed
Private Loan. DSAA will review each plan of prepayment submitted by
Borrowers and may engage in informal, non-binding discussions with each
Borrower that submitted a plan of prepayment to assist such Borrower in
preparing a prepayment application.
31 CFR 25.301 Approval procedure.
(a) Distribution, Review, and Processing by DSAA. (1) Upon receipt
of three copies of a completed prepayment application from a Borrower,
DSAA will promptly deliver one copy of Parts I and II of the prepayment
application to the State Department and one copy of Parts I, II, and V
of the prepayment application to the Treasury Department.
(2) DSAA will review each completed prepayment application to ensure
that the Private Loan complies with the requirements of this part,
including without limitation the requirements of 25.400. DSAA will also
review each completed prepayment application to ensure that the
provisions of subsection (d) of the Act (Purposes and Reports) are
considered. DSAA will process each completed prepayment application
within 16 days after receipt by DSAA of the respective completed
application from a Borrower.
(3) After DSAA has processed a completed prepayment application, DSAA
will either:
(i) Return the application to the Borrower; or
(ii) Deliver to the State Department written evidence of the approval
of the prepayment application by DSAA.
(b) Review and Processing by the State Department. (1) The State
Department will review Parts I and II of each prepayment application
received by the State Department from DSAA to ensure that the provisions
of subsection (d) of the Act (Purposes and Reports) are considered. The
State Department will process Parts I and II of each prepayment
application within 7 days after receipt by the State Department of
written evidence of the approval of the prepayment application by DSAA.
(2) After the State Department has processed Parts I and II of a
prepayment application, the State Department will either:
(i) Return the parts of the application to DSAA for return to the
Borrower; or
(ii) Deliver to the Treasury Department written evidence of the
approvals of the prepayment application by DSAA and the State
Department.
(c) Processing by the Treasury Department -- (1) FMS Loans held by
DSAA. (i) The Treasury Department will process Parts I and II of each
prepayment application regarding an Eligible FMS Loan made by DSAA or an
Eligible FMS Advance on account of an FMS Loan made by DSAA, as the case
may be, within 7 days after receipt by the Treasury Department of
written evidence of the approvals of the prepayment application by DSAA
and the State Department;
(ii) After the Treasury Department has processed Parts I and II of a
prepayment application, the Treasury Department will return the parts of
the application to DSAA, and thereupon DSAA will commence the Closing
Procedures described in 25.303(a) with respect to the application.
(2) FMS Loans held by the FFB. (i) The Treasury Department will
process Parts I and II of each prepayment application regarding an
Eligible FMS Loan made by the FFB and guaranteed by DSAA or an Eligible
FMS Advance on account of an FMS Loan made by the FFB and guaranteed by
DSAA, as the case may be, within 7 days after receipt by the Treasury
Department from the State Department of written evidence of the
approvals of the prepayment application by DSAA and the State
Department; and
(ii) After the Treasury Department has processed Parts I and II of a
prepayment application, the Treasury Department will commence the
Closing Procedures described in 25.303(b) with respect to the
application.
31 CFR 25.302 Application withdrawal; effect of approval.
A Borrower that submits a prepayment application may withdraw the
prepayment application at any time prior to its approval. Even after a
Borrower's prepayment application has been approved, the Borrower is not
obligated to prepay its Eligible FMS Loans or Eligible FMS Advances.
31 CFR 25.303 Closing procedure.
(a) FMS loans held by DSAA. (1) After the Treasury has processed
Parts I and II of a prepayment application regarding an Eligible FMS
Loan made by DSAA or an Eligible FMS Advance on account of an FMS Loan
made by DSAA, as the case may be, DSAA will communicate with the
Borrower's contact person identified in Part V of the prepayment
application to establish a Closing Date mutually agreeable to the
Borrower and DSAA. DSAA will inform the Borrower of the final amount of
the Total Permitted Prepayment Amount, or the portion thereof which the
Borrower has selected to prepay, as of the Closing Date established.
The determination by DSAA of the final amount of the Total Permitted
Prepayment Amount, or the portion thereof which the Borrower has
selected to prepay, shall be conclusive.
(2) On the Closing Date, the Guaranty will be attached to the Private
Loan Note or the Private Loan Portion Notes, as the case may be, the
Private Loan shall be funded, and the Total Permitted Prepayment Amount,
or the portion thereof which the Borrower has selected to prepay, will
be prepaid.
(3) The attachment of the Guaranty to the Private Loan Note or the
Private Loan Portion Notes, as the case may be, will take place at such
location as may be designated by the mutual agreement of the Borrower
and DSAA.
(4) Prior to 1:00 p.m. prevailing local time in New York, New York,
on the Closing Date, immediately available funds in amounts sufficient
to prepay the Total Permitted Prepayment Amount, or the portion thereof
which the Borrower has selected to prepay, shall be transferred by
electronic funds transfer to DSAA at the Treasury Department account at
the Federal Reserve Bank of New York. The funds transfer message must
include the following credit information:
United States Treasury, New York, New York, 021030004, TREAS NYC/
(5037).
For credit to the Defense Security Assistance Agency, The Pentagon,
Washington, DC 20301-2800.
This information must be exactly in this form (including spacing
between words and numbers) to insure timely receipt by the DSAA.
Checks, drafts, and other orders for payment will not be accepted.
(b) FMS Loans held by the FFB. (1) After the Treasury Department has
processed Parts I and II of a prepayment application regarding an
Eligible FMS Loan made by the FFB and guaranteed by DSAA or an Eligible
FMS Advance on account of an FMS Loan made by the FFB and guaranteed by
DSAA, as the case may be, the FFB will communicate with the Borrower's
contact person identified in Part V of the prepayment application to
establish a Closing Date mutually agreeable to the Borrower, the FFB,
and DSAA. The FFB will inform the Borrower of the final amount of the
Total Permitted Prepayment Amount, or the portion thereof which the
Borrower has selected to prepay, as of the Closing Date established.
The determination by the FFB of the final amount of the Total Permitted
Prepayment Amount, or the portion thereof which the Borrower has
selected to prepay, shall be conclusive.
(2) On the Closing Date, the Guaranty will be attached to the Private
Loan Note or the Private Loan Portion Notes, as the case may be, the
Private Loan will be funded, and the Total Permitted Prepayment Amount,
or the portion thereof which the Borrower has selected to prepay, will
be prepaid.
(3) The attachment of the Guaranty to the Private Loan Note or the
Private Loan Portion Notes, as the case may be, will take place at such
location as may be designated by the mutual agreement of the Borrower
and DSAA.
(4) Prior to 1:00 p.m. prevailing local time in New York, New York,
on the Closing Date, immediately available funds in amounts sufficient
to prepay at par the Permitted Prepayment Amount, or the portion thereof
which the Borrower has selected to prepay, shall be transferred by
electronic funds transfer to the Treasury Department account at the
Federal Reserve Bank of New York. The funds transfer message must
include the following credit information:
United States Treasury, New York, New York, 021030004, TREAS NYC/
(20180006).
For credit to the Federal Financing Bank, Room 143, Liberty Center
Building, 401 14th Street SW., Washington, DC 20227.
This information must be exactly in this form (including spacing
between words and numbers) to insure timely receipt by the FFB. Checks,
drafts, and others for payment will not be accepted.
(c) Changes in the closing date. If a Borrower does not prepay the
Total Permitted Prepayment Amount or the portion thereof which the
Borrower has selected to prepay, on the mutually agreed upon Closing
Date, the Borrower may prepay the Total Permitted Prepayment Amount, or
the portion thereof which the Borrower has selected to prepay, on a new
Closing Date, provided that the new Closing Date is mutually agreeable
to all interested parties, and provided, further, that the Borrower
prepays such amount in accordance with the approved prepayment
application, adjusted for changes in accrued interest.
31 CFR 25.303 Subpart D -- Form of Private Loan
31 CFR 25.400 Loan provisions.
(a) Subject to the provisions of paragraph (b) of this section, the
principal and interest payment schedule and maturity of the Private Loan
must be the same as the payment schedules and maturities of the Eligible
FMS Loans or Eligible FMS Advances, as the case may be, which the
Borrower has selected to prepay with the proceeds of the Private Loan.
(b) Notwithstanding the preceding paragraph, an Eligible Private
Lender that proposes to make a Private Loan, the proceeds of which will
be used to prepay Eligible FMS Loans or Eligible FMS Advances, as the
case may be, having differing payment structures and maturities, may:
(1) Consolidate the differing payment structures of the Eligible FMS
Loans or the Eligible FMS Advances, as the case may be, into a single
payment structure which complies with the following criteria:
(i) The Private Loan shall have one set of semi-annual payment dates;
(ii) Interest on and principal of the Private Loan shall be payable
semi-annually; and
(iii) The amount of principal to be paid each year on account of the
Private Loan shall be equal (rounded to the nearest $1,000.00 if
desired, except for the final payment) to the aggregate amount of
principal that is scheduled to be paid in such year on account of the
respective Eligible FMS Loans or Eligible FMS Advances; or
(2) Consolidate the differing payment structures and maturities of
the Eligible FMS Loans or the Eligible FMS Advances, as the case may be,
into a single payment structure and maturity complying with the
following criteria:
(i) The final maturity date of the Private Loan shall be the
approximate weighted average of the final maturity dates of the Eligible
FMS Loans or the Eligible FMS Advances with respect to which the
Borrower has selected to prepay amounts thereof permitted by this part
to be prepaid;
(ii) The initial principal payment date of the Private Loan shall
occur no later than the earliest scheduled principal payment date of the
Eligible FMS Loans or the Eligible FMS Advances with respect to which
the Borrower has selected to prepay amounts thereof permitted by this
part to be prepaid;
(iii) The Private Loan shall have one set of semi-annual payment
dates;
(iv) Interest on the Private Loan shall be payable semi-annually;
and
(v) The principal of the Private Loan shall be payable in equal
installments (rounded to the nearest $1,000.00 if desired, except for
the final payment) and shall be payable either semi-annually or
annually.
31 CFR 25.401 Fees.
The interest rate on the Private Loan may include compensation for
costs at prevailing market rates with the agreement of the Borrower and
the Eligible Private Lender selected by the Borrower.
31 CFR 25.402 Transferability.
Each Private Loan Note, with the Guaranty attached, shall be fully
and freely transferable to any Permitted Guaranty Holder.
31 CFR 25.403 Registration.
The Guaranty shall cease to be effective with respect to the Private
Loan or any Private Loan Portion or any Derivative to the extent that
the Private Loan or the respective Private Loan Portion or the
respective Derivative, as the case may be, is used to provide
significant support for a Non-Registered Obligation.
31 CFR 25.404 Non-separability.
(a) The Guaranty shall cease to be effective with respect to any
Guaranteed Loan Amount or any Guaranteed Loan Portion Amount or any
Guaranteed-Amount Equivalent to the extent that:
(1) The Guaranteed Amount or the respective Guaranteed Loan Portion
Amount or the respective Guaranteed-Amount Equivalent, as the case may
be, is separated at any time from the Unguaranteed Loan Amount or the
respective Unguaranteed Loan Portion Amount or the respective
Unguaranteed-Amount Equivalent, as the case may be, in any way, directly
or through the issuance of any Guaranteed-Amount Equity Derivative or
any Guaranteed-Amount Debt Derivative; or
(2) Any holder of the Private Loan Note or any Private Loan Portion
Note or any Derivative, as the case may be, having a claim to payments
on the Private Loan receives more than 90 percent of any payment due to
such holder from payments made under the Guaranty at any time during the
term of the Private Loan.
(b) Notwithstanding the preceding paragraph, if any Guaranteed-Amount
Debt Derivative is issued, the Guaranty shall not cease to be effective
with respect to any Guaranteed Loan Amount or any Guaranteed Loan
Portion Amount or any Guaranteed-Amount Equivalent, as the case may be,
if both of the circumstances described in paragraphs (b)(1) and (b)(2)
of this section.
(1) A Borrower shall have delivered to the Secretary of the treasury
evidence, in form and substance satisfactory to the Secretary of the
Treasury, that the Interest Rate Difference will be substantial.
(i) To be considered, the evidence must meet the following
requirements:
(A) The Borrower must show that the Interest Rate Difference is
directly attributable to paragraph (a) of this section being applied to
the Private Loan, that is, that the Interest Rate Difference will exist
even when all other financing terms of the Private Loan, including any
collateralization of the Unguaranteed Loan Amount or the respective
Unguaranteed Loan Portion Amount or the respective Unguaranteed-Amount
Equivalent, as the case may be, are identical;
(B) When calculating the Interest Rate Difference, the Borrower must
assume that the Unguaranteed Loan Amount or the respective Unguaranteed
Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as
the case may be, will be collateralized by securities backed by the full
faith and credit of the United States, unless the Borrower is legally
prohibited from so collateralizing the Unguaranteed Loan Amount or the
respective Unguaranteed Loan Portion Amount or the respective
Unguaranteed-Amount Equivalent, as the case may be, or the Borrower has
demonstrated to the satisfaction of the Secretary of the Treasury that
the Borrower is unable to so collateralize the Unguaranteed Loan Amount
or the respective Unguaranteed Loan Portion Amount or the respective
Unguaranteed-Amount Equivalent;
(C) If the Borrower is legally prohibited from collateralizing the
Unguaranteed Loan Amount or the respective Loan Guaranteed Portion
Amount or the respective Unguaranteed-Amount Equivalent, as the case may
be, with securities backed by the full faith and credit of the United
States or has demonstrated to the satisfaction of the Secretary of the
Treasury that the Borrower is unable to so collateralize the
Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion
Amount or the respective Unguaranteed-Amount Equivalent, as the case may
be, then the Borrower may calculate the Interest Rate Difference using
whatever collateralization assumptions the Borrower elects;
(D) If the Borrower delivers evidence to the Secretary of the
Treasury respecting the Interest Rate Difference, which evidence assumes
either that the Unguaranteed Loan Amount or the respective Unguaranteed
Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as
the case may be, will not be collateralized at all or that the
Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion
Amount or the respective Unguaranteed-Amount Equivalent, as the case may
be, will be collateralized, but not by securities backed by the full
faith and credit of the United States, then the Borrower must also
deliver to the Secretary of the Treasury the written agreement of the
Borrower, which agreement shall be in form and substance satisfactory to
the Secretary of the Treasury, that the Borrower will not collateralize
the Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion
Amount or the respective Unguaranteed-Amount Equivalent, as the case may
be, at any time during the term of the Private Loan in any way different
from the assumptions used in calculating the Interest Rate Difference;
and
(E) The Borrower must deliver to the Secretary of the Treasury the
evidence pertaining to the Interest Rate Difference at the time that the
Borrower submits to DSAA its plan for prepayment, if any, if no plan of
prepayment is submitted, then no later than 10 days prior to the time
that the Borrower submits to DSAA its prepayment application.
(ii) If the Secretary of the Treasury determines that the evidence
submitted by the Borrower pertaining to the Interest Rate Difference is
satisfactory in form and in substance, and that the Interest Rate
Difference is substantial, a modified version of the Guaranty (deleting
therefrom the provision that the Guaranty shall cease to be effective if
any Guaranteed-Amount Debt Derivative is issued) will be attached to the
Private Loan Note or the Private Loan Portion Notes, as the case may be.
(2) The Secretary of the Treasury shall have determined, in the sole
discretion of the Secretary of the Treasury, that the respective
Borrower's loan prepayment at par pursuant to subsection (a) of the Act
through the issuance of any Guaranteed-Amount Debt Derivative is
necessary to achieve the international economic policy interests of the
United States.
31 CFR 25.405 Form of guaranty.
(a) The Guaranty that will be attached to the Private Loan Note on
the Closing Date shall be in the following form (except that the
bracketed words shall be deleted if the conditions specified in
25.404(b) shall have occurred):
For Value Received, the Defense Security Assistance Agency of the
Department of Defense (''DSAA''), hereby guarantees to (Name of Lender)
(''Lender''), incorporated under the laws of (U.S. State or other U.S.
jurisdiction) or if not so incorporated or organized, then the principal
place of doing business is (U.S. location, address, and zip code), under
the authority of Section 24 of the Arms Export Control Act, as amended
(''Act''), the due and punctual payment of ninety percent (90%) of
amounts due: (1) on the promissory note (''Note'') in the principal
amount of up to $ ------ dated ------ issued to the Lender by the
Government of (Name of Borrower) (''Borrower'') pursuant to the Loan
Agreement between the Lender and the Borrower dated the ---- th day of
------ (''Agreement''); and (2) the Lender from the Borrower pursuant
to the Agreement.
This Guaranty is a guaranty of payment covering all political and
credit risks of nonpayment, including any nonpayment arising out of any
claim which the Borrower may now or hereafter have against any person,
corporation, or other entity (including without limitation, the United
States, the Lender, and any supplier of defense items) in connection
with any transaction, for any reason whatsoever. This Guaranty shall
inure to the benefit of and shall be enforceable by the Lender and any
Permitted Guaranty Holder (as hereinafter defined). This Guaranty shall
not be impaired by any law, regulation or decree of the Borrower now or
hereafter in effect which might in any manner change any of the terms of
the Note or Agreement. The obligation of DSAA hereunder shall be
binding irrespective of the irregularity, invalidity or unenforceability
under any laws, regulations or decrees of the Borrower of the Note, the
Agreement or other instruments related thereto.
DSAA hereby waives diligence, demand, protest, presentment and any
requirement that the Lender exhaust any right or power to take any
action against the Borrower and any notice of any kind whatsoever other
than the demand for payment required to be given to DSAA hereunder in
the event of default on a payment due under the Note.
In the event of failure of the Borrower to make payment, when and as
due, of any installment of principal or interest under the Note, the
DSAA shall make payment immediately to the Lender upon demand to the
DSAA after the Borrower's failure to pay has continued for 10 calendar
days. The amount payable under this Guaranty shall be ninety percent
(90%) of the amount of the overdue installment of principal and
interest, plus ninety percent (90%) of any and all late charges and
interest thereon as provided in the Agreement. Upon payment by DSAA to
the Lender, the Lender will assign to DSAA, without recourse or
warranty, ninety percent (90%) of all of its rights in the Note and the
Agreement with respect to such payment.
In the event of a default under the Agreement or the Note by the
Borrower and so long as this Guaranty is in effect and the DSAA is not
in default hereunder:
(i) The Lender or other Permitted Guaranty Holder shall not
accelerate or reschedule payment of the principal or interest on the
Note or any other note of the Borrower guaranteed by DSAA except with
the written approval of DSAA; and
(ii) The Lender or other Permitted Guaranty Holder shall, if so
directed by DSAA, invoke the default provisions of the Agreement.
Subject to the limitations set forth below, the Lender's rights under
this Guaranty may be assigned to any ''Permitted Guaranty Holder,'' that
is: (1) An individual domiciled in the United States; (2) a
corporation incorporated, chartered or otherwise organized in the United
States; or (3) a partnership or other juridical entity doing business
in the United States. In the event of such assignment DSAA shall be
promptly notified. The Lender will not agree to any material amendment
of the Agreement or Note or consent to any material deviation from the
provisions thereof without the prior written consent of DSAA.
Permitted Guaranty Holders shall be severally bound by, and shall be
severally entitled to, the rights and obligations of the Lender under
the Note, the Agreement, and this Guaranty. The Lender shall maintain a
current, accurate written record of the names, addresses, amount of
financial interest in the Note and Agreement, and date of acquisition of
such interest of each Permitted Guaranty Holder and shall furnish DSAA a
copy of such record on its demand without charge. No assignment by the
Lender or by any Permitted Guaranty Holder shall be effective for
purposes of this Guaranty unless and until so recorded by the Lender.
The total amount of this Guaranty shall not at any time exceed ninety
percent (90%) of the outstanding principal, unpaid accrued interest and
arrearages, if any, under the Agreement and the Note, including any
portion of the Note, or any derivative of the Note or any portion of the
Note.
This Guaranty shall cease to be effective with respect to the
guaranteed amount of the total amount of the Note (the ''Guaranteed Loan
Amount'') or with respect to the guaranteed amount of any portion of the
Note (the ''Guaranteed Loan Portion Amount'') (or with respect to the
amount of any derivative or derivatives of the Note or any portion of
the Note equal, or in the aggregate equal, in principal amount to the
total amount of the Note or such portion of the Note, as the case may
be, which amount of such derivative or derivatives is equal to the
respective Guaranteed Loan Amount or Guaranteed Loan Portion Amount, as
the case may be (the ''Guaranteed-Amount Equivalent'')) to the extent
that (1) the Guaranteed Loan Amount or the respective Guaranteed Loan
Portion Amount (or the respective Guaranteed-Amount Equivalent), as the
case may be, is at any time separated from the unguaranteed amount of
the total amount of the Note or the unguaranteed amount of the
respective portion of the Note (or the amount of such derivative or
derivatives of the Note which is not the amount which is equal to the
Guaranteed Loan Amount or Guaranteed Loan Portion Amount, as the case
may be), in any way, (a) directly, or (b) through the issuance of
participation shares of, or undivided ownership or other equity
interests in, the Note, or any portion of the Note, or any derivative of
the Note or any portion of the Note, which have an exclusive or
preferred claim to the Guaranteed Loan Amount or the respective
Guaranteed Loan Portion Amount (or the respective Guaranteed-Amount
Equivalent), as the case may be (or (c) through the issuance of notes,
bonds or other debt instruments or obligations which are collateralized
or otherwise secured by a pledge of, or security interest in, the Note,
or any portion of the Note or any derivative of the Note or any portion
of the Note, which has an exclusive or preferred claim to the Guaranteed
Loan Amount or the respective Guaranteed Loan Portion Amount or the
respective Guaranteed-Amount Equivalent, as the case may be); or (2)
any holder of the Note, or any portion of the Note, or any derivative of
the Note or any portion of the Note, as the case may be, having claim to
payment made on the Note, receives more than ninety percent of any
payment due to such holder from payments made under this Guaranty at any
time during the term of the Note or the Agreement.
This Guaranty is fully and freely transferable to any Permitted
Guaranty Holder, except that it shall cease to be effective with respect
to the Agreement or the Note, or any portion of the Note, or any
derivative of the Note or any portion of the Note, to the extent that
the Agreement or the Note, or the respective portion of the Note, or the
respective derivative of the Note or any portion of the Note, as the
case may be, is used to provide significant support for any
non-registered obligation.
The full faith and credit of the United States is pledged to the
performance of this Guaranty. No claim which the United States may now
or hereafter have against the Lender or any Permitted Guaranty Holder
for any reason whatsoever shall affect in any way the right of the
Lender or any Permitted Guaranty Holder to receive full and prompt
payment of any amount otherwise due under this Guaranty. The United
States represents and warrants that (a) it has full power, authority and
legal right to execute, deliver and perform this Guaranty, (b) this
Guaranty has been executed in accordance with and pursuant to the terms
and provisions of section 24 of the Act, the provisions of the Foreign
Operations, Export Financing, and Related Programs Appropriations Act,
1988, under the hearing ''Foreign Military Sales Debt Reform,'' and
title 31, part 25, of the Code of Federal Regulations, (c) this Guaranty
has been duly executed and delivered by a duly authorized representative
of DSAA, and (d) this Guaranty constitutes the valid and legally binding
obligations of the United States, enforceable in accordance with the
terms hereof.
Any notice, demand, or other communication hereunder shall be deemed
to have been given if in writing and actually delivered to the
Comptroller, DSAA, the Pentagon, Washington, DC 20301-2800, or the
successor, or such other place as may be designated in writing by the
Comptroller, DSAA or the successor thereof.
By acceptance of the Note, the Lender agrees to the terms and
conditions of this Guaranty.
Dated:
By:
Director, DSAA.
(b) The obligations of DSAA under the Guaranty are expressly limited
to those obligations contained in the form of Guaranty set forth in
paragraph (a) of this section. Any provisions of any agreement relating
to the Private Loan purporting to create obligations on the part of DSAA
which are inconsistent with the terms of the Guaranty or any other
provision of this part be unenforceable against DSAA.
31 CFR 25.406 Savings clause.
Nothing in this rule is intended to authorize any person or entity to
engage in any activity not otherwise authorized or permitted for such
person or entity under any applicable laws of the United States, any
territory or possession of the United States, any State, or the District
of Columbia.
31 CFR 25.406 PART 26 -- ENVIRONMENTAL REVIEW OF ACTIONS BY
MULTILATERAL DEVELOPMENT BANDS (MDBs)
Sec.
26.1 Purpose.
26.2 Availability of project listings.
26.3 Availability of Environmental Impact Assessment Summaries (EIA
Summaries) and Environmental Impact Assessments (EIAs).
26.4 Comments on MDB projects.
26.5 Upgrades and additional environmental information.
Authority: 22 U.S.C. 262m-7, 31 U.S.C. 321.
Source: 57 FR 24545, June 10, 1992.
31 CFR 26.1 Purpose.
This part prescribes procedures for the environmental review of, and
comment by Federal agencies and the public on, proposed projects of
multilateral development banks (MDBs).
31 CFR 26.2 Availability of project listings.
(a) The Office of Multilateral Development Banks of the Department of
the Treasury (hereinafter ''MDB Office'') will ensure that the
Environmental Protection Agency (EPA), the Council on Environmental
Quality (CEQ), the Department of State, the Agency for International
Development (AID), the National Oceanic and Atmospheric Administration
(NOAA), and the Bank Information Center (BIC) (which is a private,
nongovernmental organization located in Washington, DC), receive copies
from each multilateral development bank (MDB) of project listings
describing future MDB projects and assigning environmental categories
based on the environmental impact of each project. If an MDB has not
provided a project listing to one of these entities, these entities may
obtain the project listing by contacting the MDB Office, 1500
Pennsylvania Avenue NW., Washington, DC 20220, (202) 622-0765.
(b)(1) Members of the public may obtain copies of project listings
from the BIC, 2025 Eye Street NW., suite 522, Washington, DC 20006
((202) 466-8191, not a toll-free call).
(2) If a copy is not available from the BIC, members of the public
may arrange to review and/or copy a project listing by contacting the
MDB Office which will make a copy available at the Department of the
Treasury Library, 1500 Pennsylvania Avenue NW., Washington, DC ((202)
622-0990, not a toll-free call). Members of the public are advised that
they must make an appointment with the Treasury Library before they
visit and that a charge (currently 15 cents per page) is imposed for the
use of the library photocopier.
31 CFR 26.3 Availability of Environmental Impact Assessment Summaries
(EIA Summaries) and Environmental Impact Assessments (EIAs).
(a) EIA summaries. (1) The MDB Office will provide for the
distribution of EIA Summaries to the entities identified in section
26.2(a).
(2) (i) Members of the public may obtain copies of EIA Summaries from
the BIC, 2025 Eye Street, NW., suite 522, Washington, DC 20006 ((202)
466-8191, not a toll-free call).
(ii) If a copy of an EIA Summary is not available from the BIC,
members of the public may arrange to review and/or copy an EIA Summary
by contacting the MDB Office at (202) 622-0765 (not a toll-free call),
which will make a copy available at the Department of the Treasury
Library, 1500 Pennsylvania Avenue NW., Washingon, DC. Members of the
public are advised that they must make an appointment with the Treasury
Library (202) 622-0990) before they visit, and that a charge (currently
15 cents per page) is imposed for the use of the library photocopier. To
the extent possible, EIA Summaries will be available for review and
copying at least 120 days before scheduled consideration of a project by
the MDB Executive Directors.
(b) EIAs -- (1) The African Development Bank, the European Bank for
Reconstruction and Development, and the Asian Development Bank.
Arrangements to review an EIA may be made by contacting the MDB Office
((202) 622-0765 (not a toll-free call)), which will obtain a copy of the
EIA through the Office of the United States Executive Director of the
appropriate MDB and make it available for review and copying in the
Department of the Treasury Library. Members of the public are advised
that they must make an appointment with the Treasury Library, ((202)
622-0900 (not a toll-free call), before they visit, and that a charge
(currently 15 cents per page) is imposed for the use of the library
photocopier.
(2) The International Bank for Reconstruction and Development, the
International Development Association, and the Inter-American
Development Bank. (i) Members of the public may review EIAs at the
public reading room of the concerned MDB.
(ii) If a particular MDB does not have a public reading room, members
of the public may arrange to review and/or copy an EIA by contacting the
MDB Office ((202) 622-0765 (not a toll-free call)), which will obtain a
copy through the Office of the United States Executive Director of the
concerned MDB and make it available in the Department of the Treasury
Library, 1500 Pennsylvania Avenue NW., Washington, DC. Members of the
public are advised that they must make an appointment with the Treasury
Library ((202) 622-0990 not a toll-free call) before they visit, and
that a charge (currently 15 cents per page) is imposed for the use of
the library photocopier.
31 CFR 26.4 Comments on MDB projects.
(a) Public comments -- (1) Written comments (i) A member of the
public wishing to provide written comments on a MDB project must provide
2 copies of the comments to the Office of Multilateral Development
Banks, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW.,
room 5400, Washington, DC 20220. Written comments should be submitted
not later than two weeks after the member of the public has access to
the particular document on which it wishes to offer comments -- either
the project listing, the EIA Summary, or the EIA for a particular
project. Written public comments will be provided by the MDB Office to
the U.S. Government agencies participating in meetings of the Working
Group for Multilateral Assistance (WGMA), which meetings are described
in 26.4(c). The WGMA is an intergovernmental subcommittee of the
Development Coordination Committee whose functions are set forth in the
Presidential announcement of May 19, 1978, Vol. 14, No. 20, p. 932 of
the Weekly Compilation of Presidential Documents. The WGMA meets to
discuss the U.S. position on upcoming MDB projects.
(ii) All written comments will be available for inspection and
copying in their entirety in the Department of the Treasury Library,
1500 Pennsylvania Avenue NW., Washington, DC ((202) 622-0990). Members
of the public are advised that they must make an appointment with the
Treasury Library before they visit, and that a charge (currently 15
cents per page) is imposed for the use of the library photocopier.
(2) Oral comments. Oral comments from a member of the public may be
made in periodic meetings convened by the BIC. Information concerning
these meetings may be obtained by contacting the BIC or the MDB Office.
The MDB Office will summarize and present such comments in the WGMA
meetings described in 26.4(c).
(b) U.S. agency comments. Comments from U.S. agencies shall be
provided through the WGMA.
(c) Consideration of comments. The WGMA will consider all comments
made by the public and U.S. agencies. The WGMA may review a project up
to three times. The first review will consider whether the project has
been assigned the appropriate environmental category by the MDB. This
review will take place as far in advance as possible of Board
consideration of the project. The second review will consider the EIA
Summary or the EIA (or information discussed in 26.5(b)(1)), and
comments received from the public on such documentation. The third WGMA
review, which will take place shortly before Board consideration of the
project, will consider the position of the U.S. Government on the
project.
31 CFR 26.5 Upgrades and additional environmental information.
(a) Environmental category upgrades. If the WGMA and the Department
of the Treasury determine that a project would have a significant impact
on the human environment, but that the level of environmental analysis
planned by the MDB is insufficient, the Department of the Treasury will
instruct the United States Executive Director of the concerned MDB to
request that the MDB upgrade the project to an environmental category
requiring additional environmental analysis. Members of the public may
call the MDB Office to inquire about upgrade requests for specific
projects.
(b) Additional environmental information. (1) If the WGMA and the
Department of the Treasury determine on the basis of the first WGMA
review that:
(i) A MDB project would have a significant impact on the human
environment, and
(ii) The MDB appears to have made an appropriate decision that such
project merits environmental analysis, but less than a full-fledged
environmental impact assessment as defined by that MDB's own procedures,
the Department of the Treasury will obtain, through the United States
Executive Director of the concerned MDB, such environmental information
from the MDB (e.g., environmental chapters from project feasibility
studies or environmental data sheets) which contains this environmental
analysis. The MDB Office will provide this environmental information to
the entities described in 26.2(a).
(2) If such environmental information is insufficient to provide an
adequate basis for analyzing the environmental impact of the proposed
project and alternatives to the proposed project, the Department of the
Treasury will instruct the United States Executive Director of the
concerned MDB not to vote in favor of the project.
31 CFR 26.5 Subtitle B -- Regulations Relating to Money and Finance
31 CFR 26.5 31 CFR Ch. I (7-1-92 Edition)
31 CFR 26.5 Monetary Offices, Treasury
31 CFR 26.5 CHAPTER I -- MONETARY OFFICES,
31 CFR 26.5 DEPARTMENT OF THE TREASURY
Part
Page
51 Financial assistance to local governments
52 Antirecession fiscal assistance to State, territorial and local
governments
56 Domestic gold and silver operations sale of silver
91 Regulations governing conduct in or on the Bureau of the Mint
buildings and grounds
92 Bureau of the Mint operations and procedures
100 Exchange of paper currency and coin
101 Mitigation of forfeiture of counterfeit gold coins
103 Financial recordkeeping and reporting of currency and foreign
transactions
128 Reporting of international capital and foreign currency
transactions and holdings, transfers of credit, and export of coin and
currency
129 Portfolio investment survey regulations
130-199 (Reserved)
Abbreviation: The following abbreviation is used in this chapter:
C. P. D.=Commissioner of the Public Debt.
31 CFR 26.5 31 CFR Ch. I (7-1-92 Edition)
31 CFR 26.5 Monetary Offices, Treasury
31 CFR 26.5 31 CFR Ch. I (7-1-92 Edition)
31 CFR 26.5 Monetary Offices, Treasury
31 CFR 26.5 PART 51 -- FINANCIAL ASSISTANCE TO LOCAL GOVERNMENTS
31 CFR 26.5 Subpart A -- General Information
Sec.
51.0 Scope and application of regulations.
51.1 Wind-down authority for revenue sharing.
51.2 Definitions.
51.3 Procedures for effecting compliance for violations of provisions
other than subpart E.
51.4 Transfer of entitlement funds to secondary recipients.
51.5 Effect of State or local law.
51.6 Applicability of other Federal laws.
31 CFR 26.5 Subpart B -- Assurances, Reports, And Public Participation
51.10 Definitions.
51.11 Reports to the Director; assurances; procedure for effecting
compliance.
51.12 Use reports.
51.13 Publication requirements.
51.14 Budget hearing.
51.15 Amendments or modification to enacted budget.
51.16 Participation by senior citizens.
31 CFR 26.5 Subpart C -- Computation And Adjustment Of Allocations and
Entitlements
51.20 Data.
51.21 Data affected by a major disaster.
51.22 Adjusted taxes.
51.23 Dates for finalizing data.
51.24 Boundary changes, governmental reorganization, etc.
51.25 Waiver of entitlement; nondelivery of checks; insufficient
data.
51.26 Reservation of funds; adjustment of entitlements and
allocations.
51.27 State to maintain transfers to local governments.
51.28 Optional formula.
51.29 Notification and adjustment of data factors.
51.30 Adjustment to entitlements; application of adjustments.
51.31 Separate law enforcement officers.
51.32 Population.
31 CFR 26.5 Subpart D -- Prohibitions And Restrictions On Use Of Funds
51.40 Wage rates and labor standards.
51.41 Lobbying.
51.42 Use of entitlement funds in accordance with State or local law.
51.43 Procedure for effecting compliance.
31 CFR 26.5 Subpart E -- Nondiscrimination By States And Local
Governments Receiving Entitlement Funds
51.50 Purpose.
51.51 Definitions.
51.52 Discrimination prohibited.
51.53 Employment discrimination.
51.54 Employment discrimination on the basis of sex.
51.55 Discrimination on the basis of handicap.
51.56 Discrimination on the basis of age.
51.57 Discrimination on the basis of national origin.
51.58 Discrimination on the basis of religion.
51.59 Assurances required.
51.60 Compliance information and reports.
51.61 Compliance reviews and affirmative action.
51.62 Administrative complaints and investigations.
51.63 Notification to the complainant.
51.64 Notification of noncompliance.
51.65 Determination by the Director.
51.66 Compliance agreements.
51.67 Resumption of suspended entitlement payments.
51.68 Exhaustion of administrative remedies.
51.69 Agreements between agencies.
51.70 Jurisdiction over property.
31 CFR 26.5 Subpart F -- Fiscal Procedures And Auditing
51.100 Definitions.
51.101 Procedures applicable to the use of funds.
51.102 Auditing and evaluation.
51.103 Waiver of audit requirements.
51.104 Audits of secondary recipients.
51.105 Reliance upon audits under other Federal laws.
51.106 Audit opinions.
51.107 Scope of audits.
51.108 Public inspection, retention and submission of audit reports
and workpapers.
51.109 Procedures for effecting compliance.
Appendix A to Subpart F -- OMB Circular A-128, Audits of State and
Local Governments
31 CFR 26.5 Subpart G -- Proceedings For Reduction In Entitlement,
Withholding, Or Suspension Of Funds
51.200 Scope of subpart.
51.201 Liberal construction.
51.202 Reasonable notice and opportunity for hearing.
51.203 Opportunity for compliance.
51.204 Institution of administrative hearing.
51.205 Complaint for administrative hearing.
51.206 Service of complaint and other papers.
51.207 Answer; referral to administrative law judge.
51.208 Proof; variance; amendment of pleadings.
51.209 Representation.
51.210 Administrative law judge; powers.
51.211 Administrative hearings.
51.212 Stipulations.
51.213 Evidence.
51.214 Depositions.
51.215 Stenographic record; oath of reporter; transcript.
51.216 Proposed findings and conclusions.
51.217 Preliminary finding (for hearings under subpart E).
51.218 Final decision of the administrative law judge.
51.219 Certification and transmittal of record and decision.
51.220 What constitutes the record?
51.221 Publicity of proceedings.
51.222 Judicial review.
Appendix A -- Age Distinction and Explanatory Material
Authority: Sec. 14001, Consolidated Omnibus Reconciliation Act of
1985 (Pub. L. 99-272); Treasury Department Order 224, dated January 26,
1973, as amended, and Treasury Department Order 101-17, dated March 24,
1987.
Source: 50 FR 3455, Jan. 24, 1985, unless otherwise noted.
31 CFR 26.5 Subpart A -- General Information
31 CFR 51.0 Scope and application of regulations.
The rules and regulations in this subpart are prescribed for carrying
into effect the termination of the Revenue Sharing Program as required
by Title XIV of Pub. L. 99-272. The provisions of this part are
intended to be implemented by the Assistant Secretary of the Treasury
(Management) in a manner that most efficiently resolves any remaining
issues pertaining to the Revenue Sharing Program. Any obligations under
this part of the Department of the Treasury shall be operative after
September 30, 1987 only to the extent that the Assistant Secretary deems
necessary to carry out the requirements of Title XIV of Pub. L. 99-272.
(52 FR 36925, Oct. 2, 1987)
31 CFR 51.1 Wind-down authority for revenue sharing.
The Assistant Secretary of the Treasury (Management) shall perform
the functions, exercise the powers and carry out the duties vested in
the Secretary of the Treasury by Title XIV of Pub. L. 99-272 with
regard to the activities necessary for the termination of the Revenue
Sharing Program. The authority and duties under this part of the
Director of the Office of Revenue Sharing shall cease at the discretion
of the Assistant Secretary pursuant to the authority provided by the
Secretary of the Treasury for that purpose.
(52 FR 36925, Oct. 2, 1987)
31 CFR 51.2 Definitions.
As used in this part (except where the context clearly indicates
otherwise, or where the term is otherwise defined elsewhere in this
part) the following definitions shall apply:
(a) Act means the Revenue Sharing Act (31 U.S.C. 6701-6724) as
amended by the Local Government Fiscal Assistance Amendments of 1983
(Pub. L. 98-185 enacted November 30, 1983).
(b) Allocation means the amount determined by formula to be a State
area or recipient government's portion of the Revenue Sharing
appropriation for an entitlement period.
(c) Department means the Department of the Treasury.
(d) Director means the Director of the Office of Revenue Sharing.
(e) Entitlement means the amount a recipient government is scheduled
to receive during the entitlement period, determined from adjustments
made to the allocation for under or overpayments in prior periods.
(f) Entitlement funds means the amount of Revenue Sharing payments to
which a unit of local government is entitled as determined by the
Director pursuant to the allocation formula contained in the Act and as
established by regulations under this part, including the interest
earned on entitlement funds deposited in financial institutions prior to
their use, obligation or appropriation.
(g) Entitlement period means one of the following periods of time:
(1) Entitlement Period One is the 6-month period beginning January 1,
1972, and ending June 30, 1972.
(2) Entitlement Period Two is the 6-month period beginning July 1,
1972, and ending December 31, 1972.
(3) Entitlement Period Three is the 6-month period beginning January
1, 1973, and ending June 30, 1973.
(4) Entitlement Period Four is the Federal fiscal year beginning July
1, 1973, and ending June 30, 1974.
(5) Entitlement Period Five is the Federal fiscal year beginning July
1, 1974, and ending June 30, 1975.
(6) Entitlement Period Six is the Federal fiscal year beginning July
1, 1975, and ending June 30, 1976.
(7) Entitlement Period Seven is the 6-month period beginning July 1,
1976, and ending December 31, 1976.
(8) Entitlement Period Eight is the 9-month period beginning January
1, 1977, and ending September 30, 1977.
(9) Entitlement Period Nine is the Federal fiscal year beginning
October 1, 1977, and ending September 30, 1978.
(10) Entitlement Period Ten is the Federal fiscal year beginning
October 1, 1978, and ending September 30, 1979.
(11) Entitlement Period Eleven is the Federal fiscal year beginning
October 1, 1979, and ending September 30, 1980.
(12) Entitlement Period Twelve is the Federal fiscal year beginning
October 1, 1980, and ending September 30, 1981.
(13) Entitlement Period Thirteen is the Federal fiscal year beginning
October 1, 1981, and ending September 30, 1982.
(14) Entitlement Period Fourteen is the Federal fiscal year beginning
October 1, 1982, and ending September 30, 1983.
(15) Entitlement Period Fifteen is the Federal fiscal year beginning
October 1, 1983, and ending September 30, 1984.
(16) Entitlement Period Sixteen is the Federal fiscal year beginning
October 1, 1984, and ending September 30, 1985.
(17) Entitlement Period Seventeen is the Federal fiscal year
beginning October 1, 1985, and ending September 30, 1986.
(h) Funded means entitlement funds have been or are being made
available for expenditure in or substantially benefited a program or
activity of a recipient government or a secondary recipient.
(i) Governor means the Governor of any of the 50 State governments or
the Mayor of the District of Columbia.
(j) Indian tribes or Alaskan native villages means an Indian tribe
and Alaskan native village which has a recognized governing body and
which performs substantial governmental functions. Certification to the
Director by the Secretary of the Interior (or by the Governor of a State
in the case of a State affiliated tribe) that an Indian tribe or an
Alaskan native village has a recognized governing body and performs
substantial governmental functions, shall constitute prima facie
evidence of that fact.
(k) Lobbying means the personal solicitation of members of a
legislative body by representatives of the recipient government or their
agents for the purpose of influencing pending or proposed legislation
regarding the provisions of the Act.
(l) Program or activity means the operations of the agency or
organizational unit of a recipient government or the operations or
organizational unit of a secondary recipient funded with entitlement
funds (examples include, but are not limited to a police department,
department of corrections, health department, or a division of a public
or private corporation).
(m) Recipient government means a State government or unit of local
government, the District of Columbia, Indian tribe, Alaskan native
village, as defined in this section, or the office of the separate law
enforcement officer for any parish in the State of Louisiana, other than
the Parish of Orleans, which directly receives entitlement funds, except
as otherwise provided.
(n) Secondary recipient means:
(1) Any State government, unit of local government, any political
subdivision of any State or local government, any public or private
agency, institution, organization or other entity which receives
entitlement funds, in whole or in part, from a recipient government
either:
(i) By a contract or other arrangement pursuant to which such other
entity shall conduct, deliver or otherwise participate or assist in the
conduct or delivery of a program or activity of the recipient
government;
(ii) By a grant or other arrangement with the recipient government
intended to provide financial assistance to such other entity under a
program or activity.
(2) Secondary recipient shall not include a construction contractor
or any other private or governmental entity from which a recipient
government only acquires real or personal property (e.g. supplies,
equipment and materials) by such means as purchasing, renting, leasing,
or bartering. Secondary recipient also shall not include persons who
are the ultimate beneficiaries of a recipient government's programs or
activities.
(o) Secretary means the Secretary of the Treasury.
(p) Specific economic dislocation means economic distress in the area
of a local government which causes the closing of places of employment,
declines in assessed values or receipt of taxes from real property,
declines in sales, income, or other tax collections of that local
government. The decrease in tax collections must also reduce the
allocation of that unit of local government by an amount equal to or
greater than 20 percent of its allocation for the preceding entitlement
period in order to justify the economic dislocation benefit for the
local government.
(q) State government means the government of any of the 50 State
governments or the District of Columbia.
(r) Unit of local government means the government of a county,
municipality, or township which is a unit of general government as
determined by the Bureau of the Census for general statistical purposes.
The term ''unit of local government'' shall also include the recognized
governing body of an Indian tribe or Alaskan native village which
performs substantial governmental functions. The District of Columbia,
in addition to being treated as the sole unit of local government within
its geographic area is considered a State.
31 CFR 51.3 Procedures for effecting compliance for violations of
provisions other than subpart E.
(a) Investigations. (1) The Director shall establish procedures to
reasonably assure that an investigation of a complaint, relating to
possible violation of the provisions of this part (other than subpart E)
is completed and a decision is made as to whether the recipient
government is in noncompliance with the Act. The procedures shall
provide for the investigation and decision to be made within 180 days of
receipt of the complaint.
(2) The scope of the investigation is not necessarily limited to the
complaint, but may include any matters covered under the Act either
discovered during the investigation or reasonably flowing from the
complaint.
(b) Compliance review or audit. The Director may periodically
conduct audits or reviews of compliance with the provisions of this part
(other than subpart E) based upon receipt of audit reports or other
information, which shall be completed within one year after initiation.
(c) Notice of Noncompliance. After the completion of an
investigation, compliance review or audit, the Director shall decide
whether the recipient government has complied with the provisions of the
Act. If the decision is that the recipient government has substantially
failed to comply with the Act, the Director shall provide the
appropriate notice(s) of noncompliance which inform the recipient
government of the corrective action necessary to achieve compliance and
take appropriate steps to secure compliance.
(d) Opportunity for hearing. Whenever a recipient government fails
to enter into a compliance agreement after receipt of appropriate
notice(s) of noncompliance, the Director shall initiate an
administrative hearing and, if appropriate, issue a determination of
noncompliance pursuant to the provisions of subpart G of this part. If
a violation is found after such administrative hearing, the
administrative law judge shall issue an initial decision that the
recipient government is in noncompliance with the provisions of the Act
and the Director shall withhold the further payment of entitlement
funds, unless corrective action is taken within sixty (60) days of the
notification of the determination.
(e) Delay and constructive waiver of entitlement payments. (1) The
failure of a recipient government to comply with the assurance and
reporting requirements of subparts B and F of this part which include
submission of reports and assurances and response to specific requests
for information concerning possible violation of the Act, may result in
the delay of the further payment of entitlement funds until the
assurance, report or information requested is received. A delay of the
payment of entitlement funds shall not be subject to the procedures for
effecting compliance set forth in subsections (a) through (d) of this
section.
(2) The Director may, after one or more quarterly payments of
entitlement funds have been delayed pursuant to paragraph (e)(1) of this
section, determine that the further payments to the recipient government
for a particular entitlement period are constructively waived pursuant
to 51.25(b) of this part. Entitlement payments constructively waived
will no longer be available to the recipient government. The
constructive waiver shall not be subject to the procedures for effecting
compliance set forth in paragraph (a) of this section or in subpart E of
this part.
(50 FR 3455, Jan. 24, 1985; 50 FR 8610, Mar. 4, 1985, as amended at
51 FR 26884, July 28, 1986)
31 CFR 51.4 Transfer of entitlement funds to secondary recipients.
(a) Restrictions, prohibitions and requirements applicable to
secondary recipients. The prohibitions, restrictions and requirements
set forth in subparts D, E, and F of this part that are applicable to a
recipient government's use and expenditure of entitlement funds are also
applicable to the expenditure of entitlement funds transferred to a
secondary recipient by the primary recipient government. Any failure by
a secondary recipient to comply with any provision of subparts D, E, and
F shall constitute noncompliance with such subparts by the primary
recipient government. The Director shall effect compliance by taking
appropriate enforcement action against the primary recipient government
pursuant to subparts A, E or G of this part.
(b) Responsibilities of the primary recipient government for
compliance by secondary recipient. It is the responsibility of the
primary recipient government to inform the secondary recipient of the
requirements of this part and monitor its compliance. If the secondary
recipient fails or refuses to comply with the restrictions and
prohibitions or requirements applicable to the expenditure of
entitlement funds, the primary recipient government responsible for
achieving compliance may be required to withdraw funding in order to
achieve compliance.
31 CFR 51.5 Effect of State or local law.
Any State or local law, ordinance or regulation that substantially
impedes compliance by a recipient government with the provisions of this
part, shall be inoperative to the extent necessary to achieve such
compliance or remedy.
31 CFR 51.6 Applicability of other Federal laws.
Except as otherwise provided in the Act or this part, entitlement
funds are not subject to Federal civil laws applicable only to Federally
assisted programs or to Federal grants, loans or contracts. The
Criminal Code of the United States (title 18, U.S.C.) shall be
applicable to all criminal offenses relating to the expenditure,
accounting or reporting of entitlement funds by a recipient government
or secondary recipient of such funds under the Act or this part.
31 CFR 51.6 Subpart B -- Assurances, Reports, and Public Participation
31 CFR 51.10 Definitions.
As used in this subpart (except where the context clearly indicates
otherwise) the following definitions shall apply:
(a) Budget means a plan for the overall allocation of funds,
including entitlement funds, by a recipient government to various
purposes during a specified fiscal period in accordance with its State
or local law and procedure. A recipient government that does not
formally adopt or enact such a plan, shall be deemed to have adopted or
enacted a budget for purposes of this subpart when it has adopted or
enacted a resolution, ordinance, or appropriation act, or taken other
action dedicating, setting aside, or otherwise designating entitlement
funds for a particular purpose or use.
(b) Budget summary means categories of expenditures for entitlement
funds and general funds classified by major function and activity in
accordance with the recipient government's State or local laws and
procedures. Where there is no State or local law or procedure
prescribing the expenditure classifications, the recipient government
shall use the classifications of the Bureau of the Census.
(c) Enacted means, in the budget context, the act of final adoption,
ratification, confirmation or other action with respect to an approved
budget that makes the budget the official expenditure authorization of
the recipient government. Where a State board or agency has statutory
authority to review or approve the budget of a unit of local government,
enacted means the final action of the unit of local government.
(d) Entitlement funds means the amount of revenue sharing payments to
which a State government or unit of local government is entitled as
determined by the Director pursuant to an allocation formula contained
in the Act and as established by regulations under this part, including
the interest earned on entitlement funds deposited in financial
institutions prior to their use, obligation or appropriation.
(e) Executive authority means the chief executive officer or other
elected or appointed official of the recipient government whose
statutory responsibility is to assemble budget data and prepare the
budget document for presentation to the legislative body for enactment
or approval.
(f) Fiscal year means the 12-month period or other fiscal period on
the basis of which the recipient government operates.
(g) Impractical means, with respect to the publication requirement,
that a newspaper of general circulation is available to the citizens of
a recipient government but is not generally subscribed to or read within
the community.
(h) Infeasible means, with respect to the publication requirement,
that a newspaper of general circulation is not available or does not
serve the citizens of a recipient government.
(i) Legislative body means the elected officials of the recipient
government who have the primary legal responsibility for enacting the
budget. A quorum or the minimum number of legislative officials needed
to legally transact business, as determined by State and local law shall
constitute the legislative body.
(j) Presented means, in the budget context, the submission of a
proposed budget to the legislative body having primary legal
responsibility for enacting the budget of a recipient government.
(k) Public hearing means an open public meeting called by a recipient
government to provide all residents (without regard to taxpaying, voting
status or handicap) with an opportunity to offer written and oral
comments regarding the subject to be discussed. A public hearing
required under this subpart may be held concurrently with other meetings
held by the recipient government for public purposes (such as town
meetings, budget sessions and other regular meetings), provided that the
recipient government complies with the public notice requirements of
this subpart.
(l) Publication means giving notice, to the citizens of the recipient
government, of the date of public hearing, availability of documents for
public inspection or other information. Publication is to be effected
by publishing the information in a newspaper of general circulation or
an alternative method authorized by the Director.
(m) Report means written response by a recipient government to any
request for information or supporting documentation by the Director.
(n) Use report means a report required by the Director from each
recipient government showing the amounts and purposes for which
entitlement funds have been used in relation to the relevant functional
items in the recipient government's budget.
31 CFR 51.11 Reports to the Director; assurances; procedure for
effecting compliance.
(a) In general. The Director may require each recipient government
to submit such annual and interim reports as may be necessary to provide
a basis for evaluation and review of compliance with, and effectiveness
of, the provisions of the Act and regulations of this part. Such
reports requested by the Director shall include the documentation
necessary to support the statements contained therein.
(b) Retention of documentation concerning public participation
requirements. Documentation establishing compliance with the assurance,
reporting and public hearing requirements of this subpart, such as the
publication of notices, supplementary budget information, and other
information required to be available for public inspection, shall be
retained for a period of 3 years. These documents shall be made
available to the Director upon request.
(c) Requisite assurance for receipt of entitlement funds. In order
to qualify for entitlement funds for an entitlement period, the chief
executive officer of each recipient government, when requested by the
Director, shall file a Statement of Assurances on a form to be provided.
The Statement of Assurances will state the recipient government's
intention to comply with specified requirements, prohibitions and
restrictions of the Act and subparts B, D, E, and F of this part, with
respect to the use of entitlement funds. The Governor of each State may
upon written request to the Director, review and comment on the adequacy
of the assurances by units of local government other than Indian tribes
and Alaskan native villages, located within the State.
(d) Procedure for effecting compliance. (1) If a recipient
government fails to comply with the public participation requirements of
this subpart, the Director shall apply the procedures for effecting
compliance set forth in 51.3(a) through (d) of subpart A and hearing
procedures of subpart G of this part.
(2) If the recipient government fails to comply with the assurance
and reporting requirements of this part, the Director may implement the
delay of payment and/or constructive waiver provisions of 51.3(e) of
subpart A and 51.25(b) of subpart C of this part.
(Information collection requirements in paragraph (a) approved by the
Office of Management and Budget under control number 1505-0038, and in
paragraph (b) under control numbers 1505-0038 and 1505-0086)
31 CFR 51.12 Use reports.
(a) In general. Each recipient government shall submit a report to
the Director (or to the Bureau of the Census or other agency that the
Director may designate) setting forth the amounts and purposes for which
entitlement funds have been appropriated, spent or obligated during its
fiscal year. Such report shall also show the relationship of the
entitlement funds to the relevant functional items in the recipient
government's budget and shall identify differences between the actual
use of entitlement funds and the use of such funds as planned in the
enacted budget. The report shall be filed on the form prescribed and
approved by the Director and shall be submitted within the requested
time period. Failure to file the report as prescribed by the Director
may jeopardize future entitlement payments pursuant to 51.3(e) of this
part.
(b) Public inspection. A copy of the use report and documentation
necessary to support the statements contained therein shall be made
available to any person for a period of three years. Within 30 days
after the use report is filed, this information shall be placed at the
principal office of the recipient government for public inspection
during normal business hours. Where feasible, local public libraries
and other public buildings should be used also. If the recipient
government has no principal office, the report and supporting
documentation shall be made available for public inspection at a public
place or places within the boundaries of the recipient government.
(c) Reports to the Bureau of the Census. It shall be the obligation
of each recipient government to comply promptly with requests by the
Bureau of .the Census (or by the Director) for data, information and
reports relevant to the determination of allocation and the
appropriation or use of entitlement funds. Failure of any recipient
government to comply may result in the withholding of entitlement
payments pursuant to 51.3(e) of subpart A and 51.25(b) of subpart C of
this part.
(d) Submission of use reports to Governor. The Director (or such
agency as the Director may designate) shall, upon written request,
furnish the reports required under paragraph (a) of this section, except
those reports relating to Indian tribes and Alaskan native villages, to
the Governor of the State in which a recipient government is located, in
the manner and form prescribed by the Director.
(Information collection requirements in paragraphs (a) and (b)
approved by the Office of Management and Budget under control number
1505-0086)
31 CFR 51.13 Publication requirements.
(a) Notice of availability of use reports. The recipient government
shall publish a notice which indicates that the use report required by
51.12 of this subpart is available for public inspection within thirty
(30) days of the filing of the report with the Director or other
designated agency. Such notice shall specify the location(s) and hours
during which the report and its supporting documentation are available
to the public. Publication of the notice shall be made in a newspaper
of general circulation serving the recipient government's geographic
area.
(b) Notice of availability of audit report. A recipient government
shall make the audit report available for public inspection and publish
notice of the availability of the report within thirty (30) days of
completion of the report as provided in 51.108 (a) and (b) of this
part.
(c) Public notice of budget hearing. (1) Notice of the budget
hearing required by 51.14 shall be published in a newspaper of general
circulation serving the recipient government's geographic area no later
than 10 days prior to the scheduled date of the hearing. The notice
shall also be provided in a manner that reaches the visually impaired as
provided in 51.55(b)(1)(iv) of this part. The notice shall specify the
date, place, and time of the public hearing, and that all citizens
attending the hearing have the right to provide written and oral
comments and ask questions concerning the entire budget and the
relationship of entitlement funds to the entire budget. The notice
shall state how, in the context of its proposed budget, the recipient
government intends to use its entitlement funds, and shall require a
budget summary of its entire proposed budget. In addition, the notice
shall advise when and where the above information, together with a copy
of the entire proposed budget, shall be made available for public
inspection.
(2) Whenever State or local law provides for a specified time period
within which a recipient government is required to publish notice of a
budget hearing or to permit public inspection of its proposed budget for
a specified time period, the recipient government shall comply with the
time period for publication or public inspection required by its State
and local law, provided that it is not less than seven (7) working days.
(d) Published notice of availability of summary of enacted budget.
Public notice shall be published in a newspaper of general circulation
serving the geographic area of the recipient government within thirty
(30) days after enactment of the budget. The notice shall state where
and when the summary of the enacted budget is available for public
inspection.
(e) Waiver of newspaper publication requirements. (1) The
publication requirements contained in this section may be waived by the
Director upon receipt of a written request by the chief executive
officer of the recipient government. The request shall include an
itemized cost estimate verified by a newspaper, which shows how the cost
of publication will exceed fifteen (15) percent of the amount of
entitlement funds included in the proposed budget. In addition, the
request shall propose an alternative method of publication which
provides the citizens of the jurisdiction with adequate notice of the
budget hearing and the opportunity to review the budget summary. Any
alternative method of publication shall meet the notice and time
requirements and include the information required by this section.
(2) When newspaper publication of the notice of the budget hearing
and the budget summary is impractical or infeasible, the Director may
waive the newspaper publication requirement upon receipt of a written
request by the chief executive officer of the recipient government. The
request shall indicate the circumstances which make publication in a
newspaper impractical or infeasible and shall propose an alternative
method of publication. The waiver must be requested and approved before
the proposed appropriation of entitlement funds occurs.
(f) Notification of news media. Each recipient government shall
advise the news media, including minority, bilingual and foreign
language news media, serving its geographic area and shall provide the
news media with copies of reports, notices, or budget information on
request, at the same time that any public report, notice of hearing, or
budget information is required to be published in a newspaper under this
subpart.
(g) Legal notice rules not applicable. Whenever any section of this
subpart requires the newspaper publication of a report, public notice,
budget summary, or any other required information, the recipient
government may publish the required information in a newspaper of
general circulation serving its geographic area without regard to State
or local statutory requirements for the publication of legal notices.
Prominently displayed advertisement or news articles may be used to
provide newspaper notice required by this subpart. Such article or
advertisement must contain all of the required information.
(Information collection requirements in paragraph (e)(2) approved by
the Office of Management and Budget under control number 1505-0086)
31 CFR 51.14 Budget hearing.
(a) Budget hearing requirement -- (1) In general. Each recipient
government which expends entitlement funds in any fiscal year pursuant
to a budget enacted on or after January 1, 1977 shall have at least one
public hearing on the government's proposed uses of entitlement funds in
relation to its entire budget (i.e., the general revenues and all other
funds proposed for appropriation during the fiscal period). The budget
hearing shall be conducted by the legislative body, or the appropriate
committee thereof, prior to enactment of the budget. The number of
representatives of the legislative body required to be present at the
hearing is the same as that required for a budget hearing under State or
local law. All citizens of the recipient government shall have a
reasonable opportunity to provide written and oral comments, and to ask
questions concerning the entire budget and the relationship of
entitlement funds to the entire budget. The budget hearing required by
the paragraph shall be held at a date, place, and time and in a manner
that permits and encourages public attendance and particiation by all
citizens.
(2) Recipient government with bicameral legislature. For those
recipient governments which have a bicameral legislature, the hearing
shall be held before the appropriate committee in each house of the
legislature, or before an appropriate joint committee of both houses of
the legislature.
(3) Scope of application. The budget hearing requirement shall apply
to all entitlement funds received under the Revenue Sharing Program and
interest earned on these funds. Amounts received in excess of estimated
allocations or amounts discussed and not apropriated at previous
hearings are subject to the notice and hearing requirements of 51.13
(b) and (c) and 51.14.
(b) Alternative procedures for budget hearing. A recipient
government may use an alternative budget hearing process without
obtaining prior approval from the Director if it complies with the
public notice requirements contained in paragraph (c) of 51.13 and if:
(1) The recipient government, pursuant to State or local law,
governing the expenditure of its own revenues, is required to follow a
budget procedure which requires a public hearing that provides all
citizens the opportunity to provide oral and written comments and ask
questions concerning the proposed use of all revenues to be budgeted by
the recipient government, including the use of entitlement funds and
their relationship to the entire budget; and
(2) Documentation that the recipient government's alternative budget
hearing procedures comply with State or local law shall be made
available for public inspection during normal business hours at the
principal office of the recipient government and submitted to the
Director upon request.
(c) Public inspection. At least ten (10) days prior to the revenue
sharing budget hearing a recipient government shall make available for
public inspection during normal business hours, at the principal office
of such government, a statement of the government's proposed uses of
entitlement funds in the context of its proposed budget, a summary of
the entire proposed budget, which describes the uses proposed for
entitlement funds, general revenues and other funds, and a copy of its
entire proposed budget. If a recipient government has no principal
office, then making the above materials available at a public place
within the political boundaries of the recipient government shall
satisfy the requirements of this paragraph. Where feasible, local
public libraries and other public buildings should be used for the
purpose of providing additional places for public inspection of these
materials. Notice shall be provided of the availability of the
information for public inspection in the manner provided in 51.13 of
this subpart.
(d) Summary of enacted budget. Within thirty (30) days after
enactment of a budget as provided by State or local law, a summary of
the enacted budget showing the intended uses of entitlement funds and
information necessary to support the data in the summary shall be made
available for public inspection during normal business hours at the
principal office of the recipient government. If a recipient government
has no principal office, the summary of the enacted budget and the
enacted budget document shall be made available for public inspection at
a public place within the boundaries of the recipient government to
satisfy the requirements of this paragraph. Where feasible, local
public libraries and other public buildings should be used for the
purpose of providing additional places at which the public may inspect
the budget summary and the enacted budget. Notice shall be provided of
the availability of the budget summary and enacted budget for public
inspection, in the manner provided in 51.13 of this subpart.
31 CFR 51.15 Amendments or modification to enacted budget.
(a) Amendments or modification pursuant to State or local law. Where
applicable State or local law exists which governs amendments or
modifications of existing budgets, and requires public notice, at least
one public hearing, and the availability of the amendments or
modifications for public inspection, the recipient government shall
comply with the State or local law when making a major change to an
enacted budget.
(b) Amendments or modifications in absence of State or local law. In
the absence of applicable State or local law, the provisions of 51.13
and 51.14 shall apply to any amendments, modification or revision of an
enacted budget when a major change is proposed.
(c) Major change defined. For the purposes of this section, a major
change is any change in the enacted budget which, on a cumulative basis,
affects the use of the more than $2,000 of entitlement funds and affects
twenty-five (25) percent or more of the entitlement funds as originally
enacted in the budget of the recipient government. An amendment or
modification that does not meet both criteria shall not be considered a
major change.
31 CFR 51.16 Participation by senior citizens.
A recipient government shall endeavor to provide senior citizens, and
organizations representing the interests of senior citizens, with an
opportunity to be heard and present their views regarding the use of
entitlement funds, in any hearing or proceeding required under this
subpart or under its own budget processes, prior to final allocation of
such funds.
31 CFR 51.16 Subpart C -- Computation and Adjustment of Allocations and Entitlements
31 CFR 51.20 Data.
(a) In general. The data used in determination of allocations and
adjustments to allocations, payable under this part, will be the latest
and most complete data supplied by the Bureau of the Census, the Bureau
of Indian Affairs, the Bureau of Economic Analysis and the Internal
Revenue Service which are available prior to the allocations for an
entitlement period unless, in the judgment of the Director, the data
provided by those agencies are not current enough or are not
comprehensive enough to provide for equitable allocations.
(b) Computation and payment of entitlements. (1) Allocations will
not be made to any unit of local government if the available data is so
inadequate as to frustrate the purpose of the Act. Such units of local
government will receive an entitlement and payment when current and
sufficient data become available to permit an equitable allocation.
(2) Payment to units of local government for which the Director has
not received an address confirmation will be delayed until proper
information is available to the Director.
(3) Where the Director determines that the data provided by the
agencies listed in subsection (a) of this section are not sufficiently
current or comprehensive enough to provide for equitable allocations,
the Director may authorize the use of other data, including estimates.
The Director's determination shall be final and such other additional
data and estimates as are used, including the sources, shall be
publicized by notice in the Federal Register.
(4) Currency of tax collection. Only that tax data, which is
received in the most recent reporting year available from the
appropriate agencies prior to the allocation for an entitlement period,
shall be used in the determination of allocation for an entitlement
period, except as provided in 51.21 and 51.22 of this subpart.
(c) Special rule for less than one year entitlement periods. For
entitlement periods which encompass less than one year, the adjusted
taxes and intergovernmental transfers of any unit of local government
for the entire reporting year will be used. The limitation that the
amount allocated to a recipient government shall not exceed fifty (50)
percent of the sum of the recipient government's adjusted taxes and
intergovernmental transfers of revenues shall be reduced proportionately
for entitlement periods which are less than one year.
(d) Units of local government located in more than one county area.
In cases where a unit of local government is located in more than one
county in one or more States, each part of that unit in each county is
treated for allocation purposes as a separate unit of local government,
and the adjusted taxes and intergovernmental transfers of such parts are
estimated on the basis of the ratio which the population of that part
bears to the entire population of the local government. Parts of a unit
with population below one hundred (100), however, need not be treated
for allocation purposes as a separate unit of local government.
31 CFR 51.21 Data affected by a major disaster.
(a) In general. Any change in data otherwise eligible for use in
determining the allocation of a recipient government after April 1,
1974, shall be disregarded for a period of 60 months if that change:
(1) Resulted from a major disaster as determined by the President
under section 301 of the Disaster Relief Act of 1974 (section 414 of
Pub. L. 93-288) and
(2) Results in a data factor which is less beneficial to the
recipient government than the pre-disaster data factor for purposes of
the revenue sharing allocation process.
(b) Pre-disaster data factor. For the purposes of this section, a
pre-disaster data factor is defined as a data factor of record for the
final revenue sharing allocation which was calculated for a time period
immediately preceding the data factor time period in which the disaster
occurred and, therefore, could not have been affected by the disaster.
(c) Eligibility requirements. To be eligible for the data
stabilization benefits of paragraph (a) of this section, a recipient
government shall be:
(1) Located within a State designated by the President as a major
disaster area, and
(2) Located within a geographical subdivision of the State certified
to the Office of Revenue Sharing as a major disaster area by the
Administrator of the Federal Emergency Management Agency.
(3) Each recipient government within the specific geographic area so
designated will be notified, pursuant to the data improvement program
provided for in section 51.29 of this subpart, of each of its data
factors developed subsequent to the major disaster designation, which
are less beneficial than the pre-disaster data factors. The chief
executive officer of the recipient government must verify that the data
was adversely affected by the major disaster. In addition, the Director
may require that the verifications be accompanied by substantiating
documentation which establishes the causal relationship between the
major disaster and the current beneficial revenue sharing data factor of
record. The Director, upon being satisfied that all of the requirements
of this section have been met with respect to any post-disaster data
factor, shall refrain from using the post-disaster data factor in the
allocation process of an entitlement period, and shall continue to use
the pre-disaster data factor in the allocation process for each
entitlement period that begins during the 60-month period after the
President's designation of the specific major disaster area unless:
(i) A data factor for a current entitlement period is more beneficial
than the pre-disaster data factor, or
(ii) A post-disaster data factor of an entitlement period is not
verified by the chief executive officer as having been adversely
affected by the major disaster.
(iii) The Director determines that the data used for revenue sharing
allocations in a State has been significantly affected by other causes
subsequent to the disaster declaration by the President. In such cases,
the Director will determine the entitlement of a recipient government
affected by a major disaster by using current data of record, reasonably
adjusted to account only for the effects of the disaster.
(d) Multiple disasters. Recipient governments may be in areas
designated by the President as specific major disaster areas as the
result of two or more disasters. Recipient governments in such areas
will also be provided their appropriate pre-disaster data for
verification. The 60-month period for which more beneficial
pre-disaster data may be used for a government shall be determined by
the most recent designation by the President of a specific major
disaster area containing that government.
(e) Effect on later entitlement periods of failure to verify. A
recipient government which does not verify that an adverse data change
is caused by a disaster in an entitlement period when it was afforded an
opportunity to do so does not lose the opportunity to verify in a later
entitlement period that a disaster has affected the data factor for that
later entitlement period.
(f) Per capita income data. Increases in per capita income data
subsequent to disasters in designated disaster areas will not be
considered adverse data changes resulting from a disaster for purposes
of section 6713(c)(2) of the Act.
(g) 60-month period. The post-disaster data factor shall be used for
the first entitlement period beginning after the end of the sixty (60)
months referred to in 51.21(a).
31 CFR 51.22 Adjusted taxes.
(a) In general. Tax revenues are compulsory contributions to a unit
of local government exacted for public purposes, as such contributions
are determined by the Bureau of the Census for general statistical
purposes. The term ''adjusted taxes'' means the tax revenues adjusted
by excluding an amount equal to that portion of the compulsory
contributions which is properly allocable to school operations, debt
service on school indebtedness, school capital outlays, and other
educational purposes.
(b) Procedure for exclusion of tax revenues for education. The tax
revenues exacted by a unit of local government shall be adjusted to
exclude any such tax revenues used for financing education in a manner
consistent with the following provisions:
(1) Where a unit of local government finances education from a
specific fund and lists tax revenues to the fund or levies a separate
tax for purposes of education, this amount will constitute the tax
revenues for education.
(2) If tax revenues for purposes of education are not separately
identifiable because education is financed by expenditure or
transferring of moneys from a general fund (or similarly named fund) to
a school fund or funds, then the ratio of tax revenues (as defined in
paragraph (a) of this section) to the total revenues in the fund shall
be calculated, and that ratio, multiplied by the expenditure or transfer
of non-dedicated moneys from the fund to the school fund, shall be
equated with the tax revenues properly allocable to expenses for
education. The phrase ''total revenues in the fund'' means cash and
securities on hand in the general fund (or similarly named fund) at the
beginning of the fiscal year, plus all non-dedicated revenues to the
fund (other than trust or agency revenues) less cash and securities on
hand at the end of the fiscal year. Trust and agency funds are those
held specifically for individuals or governments for which no discretion
can be exercised as to the amounts to be paid to the recipient.
(3) If any instance where neither paragraph (b)(1) nor (2) of this
section permits determination of school taxes, then any procedure deemed
equitable by the Director shall be utilized to ascertain adjusted taxes.
(c) Validity of adjusted tax data; economic dislocation. (1)
Allocation of funds under the Act will be based on data reported by
States and units of local government to the Bureau of the Census and
shall be in accordance with definitions established by the Bureau of the
Census. No State or unit of local government shall report to the
Department of the Treasury or the Bureau of the Census in a manner which
attempts to circumvent or frustrate the intent of this section.
(2) The Director will disregard the reduction in the amount of
adjusted taxes of a unit of general local government for one entitlement
period if this reduction results from a specific economic dislocation as
defined in 51.2(p) of this part.
(d) Definition of Massachusetts tax effort. (1) The adjusted taxes
of units of local government within the Commonwealth of Massachusetts
for the entitlement period beginning October 1, 1983 shall include
property taxes levied for the Commonwealth's 1982 fiscal year and
recognized as fiscal year 1982 receipts pursuant to Massachusetts
General Laws, chapter 59, sections 21 and 23, and chapter 44, sections
35 through 46.
(2) No tax collections credited to any unit of general local
government under paragraph (d)(1) of this section for the Commonwealth's
1982 fiscal year shall be credited to that unit of general local
government for any other fiscal year for use in determining its adjusted
taxes.
(Information collection requirements in paragraph (c)(2) approved by
the Office of Management and Budget under control number 1505-0082)
31 CFR 51.23 Dates for finalizing data.
(a) Data definitions. Pursuant to the provisions of 51.20 (a) and
(b)(3), the determination of the data definitions upon which the
allocations and entitlements for an entitlement period are to be
calculated shall be made no later than the day immediately preceding the
beginning of the entitlement period. The final data definitions
published in the Federal Register, prior to each entitlement period,
shall not be subject to change.
(b) Effect of reauthorization upon data definition. Whenever the
Congress enacts reauthorization legislation for the Revenue Sharing Act
after the beginning of an entitlement period that is within the scope of
the reauthorization, appropriate data definitions, or partial amendments
to definitions, for that entitlement period will be published as soon as
practicable after the enactment of such legislation.
(c) Initial allocation. The date upon which initial allocations for
an entitlement period are calculated for payment purposes shall be
determined by the Director as soon as practicable and shall be
publicized by notice in the Federal Register.
(d) Adjusted taxes and intergovernmental transfers. The date for
determining the amount of adjusted taxes and intergovernmental transfers
of a unit of local government will be the fiscal year that can be
uniformly assembled for all units of local government prior to the
beginning of the affected entitlement period.
31 CFR 51.24 Boundary changes, governmental reorganization, etc.
(a) In general. A boundary change, governmental reorganization, or
change in State statutes or constitution, relevant to the computation of
entitlement of a unit of local government under the Act, which occurs
during an entitlement period shall not result in a change to the
entitlement of that government until the next entitlement period.
However, payment(s) tendered to such government for the entitlement
period may be redistributed pursuant to the provisions of paragraphs (b)
and (c) of this section.
(b) New units of local government. A unit of local government which
came into existence as an active government during an entitlement period
shall first be eligible for an allocation for the next entitlement
period. A new unit of local government must establish its eligibility
for an entitlement period within one year after the end of that period
by providing documentation of its boundaries, State certification and
its activation date to the ORS or the Bureau of the Census. However, if
such unit is a successor government, it shall be eligible to receive the
entitlement payment of the unit or units of local government which it
succeeded in accordance with the conditions of the succession.
(c) Dissolution of units of local government. A unit of local
government which dissolved, was absorbed or ceased to exist as such
during an entitlement period is eligible to receive an entitlement
payment for that entitlement period; Provided, That such unit of local
government is in the process of winding down its governmental affairs or
a successor unit of local government has the legal capacity to accept
and use such entitlement funds. Entitlement payments which are returned
to the Director because of the cessation of existence of a unit of local
government shall be placed in the State and Local Government Fiscal
Assistance Trust Fund until such times as they can be redistributed
according to the conditions under which the unit of local government
ceased to exist. An entitlement payment not used by a dissolved unit of
local government or its successor government or governments shall be
added to and shall become a part of the entitlement of the next higher
eligible unit of government in that State. If that government cannot
receive the entitlement funds, they shall be added to the appropriate
State reserve.
(d) Limitations on adjustment for annexations. Annexations by units
of local government shall not affect the entitlement of any unit of
local government for an entitlement period, unless the Director
determines that adjustments pursuant to such annexations would be
equitable and would not be unnecessarily burdensome, expensive, or
otherwise impracticable.
(e) Certification. Units of local government affected by a boundary
change, governmental reorganization, or change in State statutes or
constitution shall, before receiving an entitlement adjustment or
payment redistribution pursuant to this section, obtain State
certification that the change was accomplished in accordance with State
law. The certifying official shall be designated by the Governor, and
the certification shall be submitted to the Bureau of the Census.
31 CFR 51.25 Waiver of entitlement; nondelivery of checks;
insufficient data.
(a) Waiver. Any unit of local government or Indian tribe or Alaskan
native village may waive its entitlement for any entitlement period;
Provided, That the chief executive officer, with the consent of the
governing body of the government, notifies the Director that the
entitlement payments for a past, current, or next beginning entitlement
period, or any combination thereof, are being waived. A waiver of
entitlement for the next beginning entitlement period will only be given
effect if the waiver notice is received during the 6-month period
immediately preceding that entitlement period. In the event that an
entitlement payment is returned or a notice of waiver is executed which
is not in accordance with this procedure, the chief executive officer
will be notified by the Director and, unless the attempted waiver is
rescinded within thirty (30) days of the notice, it shall be given
effect. However, in no event will a notice of waiver be given effect
for an entitlement period which follows the next beginning entitlement
period. The entitlement waived, and any adjustments resulting from
recalculation of earlier entitlements, shall be added to and shall
become a part of the entitlement of the next higher unit of government
eligible to receive entitlement funds in that State in which the unit of
local government, Indian tribe or Alaskan native village waiving the
entitlement is located. If that government cannot receive the
entitlement funds, they shall be added to the appropriate State reserve.
A waiver of entitlement by a unit of local government, Indian tribe or
Alaskan native village shall be deemed irrevocable thirty (30) days
prior to the first payment for the entitlement period to which it
relates.
(b) Constructive waiver. Any recipient government which has not
waived and is otherwise eligible to receive entitlement payments and
which has failed to submit reports or assurances required pursuant to
Subparts B, E or F, of this part is subject to having the Director
constructively waive one or more of its entitlement payments for the
applicable entitlement period. Prior to such a waiver, the Director
shall, in at least two notices of not less than thirty (30) days notify
a nonresponsive recipient government of its noncompliance, that its
payments(s) for the affected entitlement period(s) are being delayed
pursuant to 51.3(e), 51.11(d), 51.43(b), 51.59(b), 51.60(c), and
51.109(b) of this part, and that if the report or assurance is not
submitted within the thirty (30) days or a reasonable period thereafter
as determined by the Director, the Director shall make a determination
that the payments to the nonresponsive recipient government will or are
continued to be constructively waived. Entitlement funds constructively
waived will be redistributed pursuant to the provisions of paragraph (a)
of this section.
(c) Nondelivery. Entitlement payments for any entitlement period
which are returned to the Department of the Treasury as being
nondeliverable because of incorrect address information, or which are
unclaimed for any reason, shall be placed in the State and Local
Government Fiscal Assistance Trust Fund until such time as payment can
be made.
(d) Insufficient data. Entitlement funds for any entitlement period
which are withheld from payment because of insufficient data upon which
to compute the entitlement, or for which payment cannot be made for any
other reason, shall remain in the State and Local Government Fiscal
Assistance Trust Fund until such time as payment can be made.
(50 FR 3455, Jan. 24, 1985, as amended at 51 FR 26884, July 28, 1986)
31 CFR 51.26 Reservation of funds; adjustment of entitlements and
allocations.
(a) Reservation for State adjustment reserves; National Adjustment
Reserve. (1) The Director shall reserve in the State and Local
Government Fiscal Assistance Trust Fund a percentage, not to exceed 0.5
percent of the total allocation for all units of local government within
a State, except for the District of Columbia, for any entitlement
period. The reserve funds shall be used to ensure that there will be
sufficient funds available to pay adjustments due, as a result of
insufficient or erroneous data or any other reason, after the final
allocations of funds and for temporary uses of the reserve as provided
in paragraphs (d) and (e) of this section. The reserves shall be known
as State Adjustment Reserves.
(2) Amounts remaining in the reserves shall accumulate until the
liabilities of the Trust Funds to the recipient governments within each
State are discharged or sufficiently diminished to permit an allocation
to recipient governments within the State area. This distribution shall
reflect the allocation of Revenue Sharing funds within the State for the
most recently completed entitlement period.
(3) The Director shall establish a National Adjustment Reserve. The
National Adjustment Reserve shall be funded with such amount in the
State Adjustment Reserves as is determined by the Director to ensure
that there will be sufficient funds available to cover adjustments due
after a final allocation for an entitlement period. The amounts in the
National Adjustment Reserve may be used for the same purposes as those
in the State Adjustment Reserves and shall remain until the Director
determines that the liabilities of the Trust Fund are discharged or
sufficiently diminished to permit their final disposition.
(b) Adjustment to entitlement payments. (1) Payments shall be made
on the basis of the initial allocation, for an entitlement period,
subject to adjustment for underpayments and overpayments as reflected in
the allocations for prior entitlement periods. Adjustments in the
payments to a recipient government due to data corrections reflected in
the allocations for an entitlement period will generally be effected
through adjustment to subsequent entitlement payments to the recipient
government unless circumstances exist as provided for by paragraph (c)
of this section.
(2) Allocations for an entitlement period shall be calculated to
reflect the most recent data available in accordance with the time
periods specified in 51.29.
(3) The Director may demand increases and decreases in payments of
governments as a result of the final allocation for an entitlement
period pursuant to 31 U.S.C. 6702. The Director shall adjust the
payments to each recipient government to reflect the final allocation
for each entitlement period.
(c) Substantial overpayments. In the event that an overpayment is so
substantial as to make repayment by downward adjustment to subsequent
payments during the authorized term of the Revenue Sharing Program
infeasible, the director may demand that the amount, that cannot be
offset, be repaid immediately to the State and Local Government Fiscal
Assistance Trust Fund. Appropriate action to seek collection will be
taken in such cases should the recipient government decline to
voluntarily repay the amount of the overpayment.
(d) Allocation adjustments from state adjustment reserves. (1)
Permanent adjustments from the state adjustment reserves may be made
only to cover those increases or decreases in allocations which result
from data revisions of which the Director is notified in accordance with
51.29 of this subpart and which were not included in the final
allocation for the entitlement period, except as indicated in paragraph
(e) of this section.
(2) Temporary allocation adjustments from the reserve will be limited
by the amount in a State's Adjustment Reserve. Temporary allocation
adjustments will be permitted from the reserve only pursuant to the
following criteria:
(i) When a recipient government has not been notified of data
factors, pursuant to 51.29 of this part, prior to the initial
allocation for a particular entitlement period; or
(ii) The recipient government notified the Director of data errors
pursuant to 51.29, but the correction was not made in time for the
initial allocation of that period; and
(iii) The adjustment increase described in paragraphs (d)(2)(i) and
(ii) of this section must represent thirty (30) percent of the recipient
government's initial allocation, the error was caused by a Federal
Agency and the request for the temporary adjustment is made in writing
to the Director.
(e) Accounts receivable and reserves. Funds from the State
Adjustment Reserves may be used to cover accounts receivable funds while
they are being collected. The State Adjustment Reserves may also be
used to cover uncollectible accounts receivable.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985, as amended at
51 FR 19147, May 27, 1986; 52 FR 415, Jan. 6, 1987)
31 CFR 51.27 State to maintain transfers to local governments.
(a) General Rule for Entitlement Periods beginning before October 1,
1983. The payment of revenue sharing funds to any State government for
any entitlement period beginning before October 1, 1983 for which funds
were appropriated for State governments, shall be reduced by the amount
(if any) by which --
(1) One-half of the aggregate amounts transferred by the State
government out of its own sources during the 24-month period ending the
last day of the last fiscal year for which the Bureau of the Census has
relevant data on the first day of such entitlement period, to all units
of local government in such State is less than --
(2) One-half the similar aggregate amount for the 24-month period
ending the day before the 24-month period described in paragraph (a)(1)
of this section.
For purposes of paragraph (a)(1) of this section, the amount of any
reduction in the entitlement of a State government under this section
for any entitlement period shall, for subsequent entitlement periods, be
treated as an amount transferred by the State (out of its own sources)
government in such State. The phrase ''own sources'' means all sources
of State revenue (including debt proceeds and State's revenue sharing
entitlement funds) but excluding intergovernmental revenues received
from the Federal government.
(b) Measurement of maintenance of effort. The following formula will
be applied by the Director to establish the base year intergovernmental
transfers to units of local government from the State's own sources and
to generally monitor the level of effort in accordance with the
maintenance provisions of paragraph (a) of this section during future
entitlement periods:
(1) It shall be assumed that the ratio of a State's own source
intergovernmental transfers to units of local government to that State's
total intergovernmental transfers to units of local government is equal
to the ratio of that State's own source revenues to its total revenues.
Thus, for a State in which such formula may be applied, its base year
own source intergovernmental transfers to units of local government
shall be asssumed to equal its total intergovernmental transfers to
units of local government in the base year multiplied by its own source
revenue in the base year divided by its total revenues in the base year.
(2) In a State in which the formula is applied, the State's own
source intergovernmental transfers to units of local government in a
future entitlement period shall be assumed to equal the average of --
(i) The State's total intergovernmental transfers to units of local
government during that period (or that State's fiscal year ending on or
immediately prior to the end of such period) multiplied by its own
source revenue in that period (or such fiscal year) divided by its total
revenues in that period (or such fiscal year) and
(ii) The State's total intergovernmental transfers to units of local
government during the preceding entitlement period (or that State's
fiscal year ending on or immediately prior to the end of such period)
multiplied by its own source revenue in that period (or such fiscal
year) divided by its total revenues in that period (or such fiscal
year).
(3) Therefore, in a State in which the formula is applied,
maintenance (for a given entitlement period) of intergovernmental
transfer effort to units of local government will be measured by the
difference between that State's average aggregate intergovernmental
transfers to units of local government (over the appropriate periods) as
calculated by employing the method described in paragraph (b)(2) of this
section and that State's own source intergovernmental transfers to units
of local government in the base period as calculated by employing the
method described in paragraph (b)(1) of this section.
(4) If the application of this formula during any entitlement period
indicates that a State government has not maintained its
intergovernmental transfer effort, i.e., should a State's
intergovernmental transfers to units of local government, for a
particular period, be less than transfers calculated for the base
period, the difference (as defined in paragraph (b)(3) of this section)
shall constitute the future indicated reduction in that State's
entitlement unless such State can document to the Director that the fact
or amount of nonmaintenance, as determined by application of the
formula, is inaccurate.
(c) Alternative procedure. If the Director determines that the
application of the formula set forth in paragraph (a) of this section in
a particular case provides an inaccurate or unfair measurement of
transfer effort, then any formula, procedure, or method deemed equitable
by the Director may be utilized to measure such transfer effort for the
purpose of implementing the maintenance provision.
(d) Adjustment where State assumes responsibility for category of
expenditures. If the State government establishes to the satisfaction
of the Director that since June 30, 1972, it has assumed responsibility
for a category of expenditures which (before July 1, 1972) was the
responsibility of local governments located in such State, then the
aggregate amount taken into account under paragraph (a)(2) of this
section shall be reduced to the extent that increased State government
spending (out of its own sources) for such category has replaced
corresponding amounts, which for the period used for the purposes of
this paragraph, it transferred to units of local government.
(e) Adjustment where new taxing powers are conferred upon local
governments. If a State establishes to the satisfaction of the Director
that since June 30, 1972, one or more units of local government within
such State have had conferred upon them new taxing authority, then, the
aggregate amount taken into account under paragraph (a)(2) shall be
reduced to the extent of the larger of --
(1) The amount of the taxes collected by reason of the exercise of
such new taxing authority by such local governments, or
(2) The amount of the loss of revenue to the State by reason of such
new taxing authority being conferred on such local governments. No
amount shall be taken into consideration under paragraph (e)(1) of this
section if such new taxing authority is an increase in the authorized
rate of tax under a previously authorized kind of tax, unless the State
is determined by the Director to have decreased a related State tax.
(f) Adjustment where Federal government assumes responsibility for
category of expenditures. If in an entitlement period beginning on or
after January 1, 1977, a State government establishes to the
satisfaction of the Director that the Federal government has assumed
responsibility for a category of expenditures for which such State
government transferred amounts, during all or a part of the period
utilized for purposes of paragraph (a)(1) of this section, which (but
for this paragraph) would be included in the aggregate amount taken into
account under paragraph (a)(2), the aggregate amount shall be reduced to
the extent that increased Federal government spending has replaced
corresponding amounts which such State government had transferred to
units of local government.
(g) Computation by the Office of Revenue Sharing. The Director shall
make the computation required for the determination of maintenance of
effort, based on data furnished by the Bureau of the Census. The Bureau
of the Census shall provide to the Office of Revenue Sharing the
following data pertaining to a State's transfer of funds to units of
local government for the State's appropriate fiscal year:
(1) The State's own source funds.
(2) The State's total funds.
(3) The State's own source transfers to units of local government.
(4) The State's total transfers to units of local government.
(h) Reduction in entitlement. If the Director has reason to believe
that paragraph (a) of this section requires a reduction in the
entitlement of any State government for any entitlement period, the
Director shall give reasonable notice and opportunity for hearing to the
State. If, after a hearing it is determined that a reduction is
required, the Director shall determine the amount of the reduction,
notify the Governor of the affected State of the determinations and
withhold from subsequent payments to such State government under this
part an amount equal to the reduction.
(i) Transfer to general fund. An amount equal to the reduction in
the entitlement of any State government which results from the
application of this section shall be transferred from the Secretary's
Trust Fund to the general fund of the Treasury on the day on which such
reduction becomes final.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985; 50 FR 26987,
July 1, 1985)
31 CFR 51.28 Optional formula.
(a) In general. A State government may by law provide for the
allocation of funds among the county areas, or among units of local
government (other than county governments, Indian tribes, and Alaskan
Native Villages):
(1) On the basis of the population multiplied by the general tax
effort factors of such areas or units of local government; or,
(2) On the basis of the population multiplied by the relative income
factors of such areas or units of local government; or,
(3) On the basis of a combination of those two factors.
(4) Any State which provides by law for such a variation in the
allocation formula provided by section 6711 of the Act, shall notify the
Director of the new law no later than 90 days before the beginning of
the first entitlement period to which it is to apply. Any such law
shall:
(i) Provide for allocating 100 percent of the aggregate amount to be
allocated under subsections 108(a) or 108(b) (2) and (3) of the Act;
(ii) Apply uniformly throughout the State; and
(iii) Apply during the period beginning on the first day of the first
entitlement period to which it applies and ending on September 30, 1983.
(b) Single legislation required. If a State government alters its
county area allocation formula or its local government allocation
formula, or both, such alteration may be made only once and is required
to be made in the same legislative enactment.
(c) Certification required. Paragraph (a) of this section shall
apply within a State only if the Director certifies that the State law
complies with the requirements of the paragraph. The Director shall not
certify any such law with respect to which notification is received
later than thirty (30) days prior to the initial entitlement period
during which it is to apply.
31 CFR 51.29 Notification and adjustment of data factors.
(a) Notification of data factors. The data factors used in computing
allocations of funds under the Act for any entitlement period will be
made available to each State government and unit of local government as
soon as practicable. Each such government will be given a reasonable
opportunity to question its data factors in writing by providing factual
documentation which demonstrates evidence of error in the data as
defined in 51.23(a) for that entitlement period, no later than one year
from the end of the entitlement period for which the data are
applicable.
(b) Time limit for data changes. If it is established to the
satisfaction of the Federal agency responsible for providing the
challenged data, by factual evidence and documentation that the data
used in the computation of an allocation are erroneous, an adjustment
will be made to the entitlement payment of such government. No
adjustment shall be made unless evidence and documentation of the error
in the data, as defined for that entitlement period, is provided to the
Director for determination within one year of the end of the entitlement
period with respect to which the allocation is made. Except for Indian
tribes and Alaskan Native Villages, no adjustment of any kind, which is
less than $200, shall be made to an entitlement if in the judgment of
the Director such adjustment will be burdensome, expensive, or otherwise
impracticable.
(c) Special rule for Entitlement Period Seventeen. Notwithstanding
any other provision of this subpart with respect to the time limit for
changes to the data, no adjustment based on the data factors used in
computing allocations of funds shall be made to increase or decrease an
entitlement payment to a recipient government for Entitlement Period
Seventeen (October 1, 1985 to September 30, 1986) unless a challenge to
the data is made by the Director or the recipient government before June
2, 1986. Demands by a recipient government or the Director for payment
adjustments for other reasons may be made up to one year after the end
of Entitlement Period Seventeen.
(50 FR 3455, Jan. 24, 1985, as amended at 51 FR 19147, May 27, 1986)
31 CFR 51.30 Adjustment to entitlements; application of adjustments.
(a) County area maximum and minimum per capita entitlement -- (1) In
general. Pursuant to section 6708(b) of the Act, the per capita amount
allocated to any county area shall be not less than twenty (20) percent,
nor more than 145 percent, of the amount allocated to the State under
section 6706 of the Act, divided by the population of that State.
(2) One hundred forty-five percent rule. If a county area allocation
is greater than the 145 percent limit, its allocation shall be reduced
to the 145 percent level and the resulting surplus shall be shared
proportionately by all remaining unconstrained county areas.
(3) Twenty percent rule. If, after the application of subsection
(a)(2) of this section, a county area allocation is less than the 20
percent limit, its allocation shall be increased to the 20 percent level
and the resulting deficit shall be shared proportionately by all
remaining unconstrained county areas.
(b) Local governments (other than a county government, Indian tribe
or Alaskan native villages -- (1) In general. Except as provided below,
the per capita amount allocated to any unit of local government (other
than a county government, Indian tribe or Alaskan native village) shall
be not less than 20 percent, nor more than 145 percent, of the amount
allocated to the State under section 6706 of the Act, divided by the
population of that State.
(2) One hundred forty-five percent rule. If a unit of local
government is allocated an amount greater than the 145 percent limit,
its allocation shall be reduced to that level.
(3) Twenty-percent rule. If a unit of local government is allocated
an amount less than the 20-percent limit, its allocation shall be
increased to the lower of the 20 percent limit or 50 percent of the sum
of that local government's adjusted taxes and transfers and
intergovernmental transfers of revenue (other than entitlement funds).
(4) Allocations less than $200. If a unit of local government
(except for Indian tribes and Alaskan Native Villages) below the level
of a county government, is allocated an amount less than $200 for an
entitlement period, the amount of the allocation of that local
government for that entitlement period shall become a part of the
allocation of the county government of the county area in which the
local government is located.
(c) Fifty percent limitation -- (1) In general. The amount of funds
allocated to any unit of local government other than an Indian tribe or
Alaskan Native Village under this section for any 12-month entitlement
period shall not exceed 50 percent of the sum of that local government's
adjusted taxes, plus its intergovernmental transfers of revenue (other
than entitlement funds).
(2) Reallocation of excess amounts due to the fifty percent
limitation. In any case in which the amount of funds allocated to a
unit of local government other than a county government is reduced
pursuant to paragraphs (c)(1) of this section, the amount of the
reduction shall be reallocated as follows --
(i) The amount shall be added to the county government in which the
local government is located, to the extent that the county government
may receive funds after application of the provisions of paragraphs (a)
and (c) of this section.
(ii) If the county government cannot receive such funds, the
provisions of paragraphs (d) and (e) of this section shall be applied.
(3) Allocations less than $200. If a unit of local government
(except for Indian tribes and Alaskan Native Villages) below the level
of a county government, is allocated an amount less than $200 for an
entitlement period, the amount of the allocation of that local
government for that entitlement period shall become a part of the
allocation of the county government of the county area in which the
local government is located.
(d) One hundred percent criterion. If the amounts allocated to units
of local government within a state do not total 100 percent of the
amount allocated to that State, due to application of the adjustments
set forth in paragraphs (a), (b) and (c) of this section, the amount to
be allocated to county areas shall be adjusted appropriately, and the
allocation process shall be repeated until the amounts allocated to such
units of local government total 100 percent of the amount allocated to
that State to the extent possible.
(e) Distribution of funds in excess of allocation resulting from
adjustments. Funds which may not be distributed after application of
paragraph (d) of this section to the allocation of a recipient
government, shall be added on a pro rata basis to all units of local
government within the State.
(50 FR 3455, Jan. 24, 1985; 50 FR 8610 and 8612, Mar. 4, 1985)
31 CFR 51.31 Separate law enforcement officers.
(a) Entitlement of separate law enforcement officers. (1) The office
of the seperate law enforcement officer within any parish area in the
State of Louisiana, other than the parishes of East Baton Rouge and
Orleans, shall be allocated 13.5 percent of the allocation of the
governments of the Parish government.
(2) The office of the separate law enforcement officer within the
area of the government of the Parish of East Baton Rouge, shall be
allocated for each entitlement period, beginning on or after January 1,
1977, 6.75 percent of the allocation of the governments of Baton Rouge,
Baker and Zachary, Louisiana for each such entitlement period.
(b) Reduction of allocation of parish government. (1) The
governments of each parish (other than East Baton Rouge and Orleans,
Louisiana) shall receive for an entitlement period allocations reduced
by 13.5 percent, the full amount due the separate law enforcement
officer for such parish.
(2) The governments of Baton Rouge, Baker and Zachary, Louisiana
shall receive, for an entitlement period, allocations reduced by an
amount equal to 6.75 percent, the full amount due to the separate law
enforcement officer for the parish of East Baton Rouge.
(c) Allocation of the Parish of Orleans. The provisions of
paragraphs (a) and (b) of this section shall not apply to the
allocations of the Parish of Orleans.
31 CFR 51.32 Population.
(a) Population generally. Population shall be determined on the same
basis as resident population is determined by the Bureau of the Census
for general statistical purposes.
(b) Undercount adjustment. To adjust for any possible undercount
during the 1980 census, the Director shall --
(1) As soon as practicable, request the Bureau of the Census to
adjust the population data provided to include a reasonable estimate of
the number of resident persons not counted in the 1980 census or
subsequent revisions thereof.
(2) Estimates received from the Bureau of the Census shall be used to
calculate the allocations for entitlement periods beginning after
receipt of such estimates.
(c) Adjustment as result of legal immigrants. The determination of
population shall reflect any adjustments made pursuant to section 118 of
Pub. L. 96-369 conducted due to a major population change resulting
from the movement of a large number of Cuban or Haitian legal immigrants
into a jurisdiction within 6 months after the 1980 census. The
adjustments to such population figures shall be reflected in entitlement
periods beginning with fiscal year 1981 and shall continue to be used
until the Bureau of the Census makes available 1981 population
estimates.
(d) Population of Indian tribes and Alaskan native villages. (1) The
population of an Indian tribe or Alaskan native village is the resident
population as of April, 1980, defined as --
(i) For Indian tribes, American Indians living on a reservation plus
the number of American Indians living in adjacent tribally owned trust
lands of the tribe. The adjacent tribal trust lands may not conform
exactly to their actual boundaries, since the boundaries used extend to
the nearest physical or natural feature bordering the trust lands.
Resident non-Indian members of families with an American Indian
householder or spouse are also included in the population data.
(ii) The lands in each Oklahoma county which were part of one or more
Indian reservations at the time of allotment will be treated jointly as
the land of all the reservations located in that county. Therefore,
within a given county, an Indian identified with a tribe whose historic
reservation includes a portion of that county will be enumerated with
that tribe regardless of whether they reside within their tribe's own
historic reservation area or that of one of the other tribes. Areas
inside cities and towns will be subtracted from the land of the tribes.
Only an Indian identified with the tribe of the Indian governing body
and their spouses and children living within the boundaries of the
tribal area described above are to be included in the population data of
Oklahoma Indian governments. The population of the Osage Tribal Council
of Oklahoma is as defined in paragraph (d)(1)(i) of this section since
this tribe has its own current reservation.
(iii) For Alaskan native villages, the number of American Indians,
Eskimos and Aleuts living in the village on the April 1, 1980, Census
date. Resident non-Alaskan native members of families with an Alaskan
native householder or spouse are also included in the population data.
(2) The Director will request the Bureau of the Census to provide
updated population estimates for Indian tribes and Alaskan native
villages when such estimates are provided for other local governments in
the Revenue Sharing Program.
(50 FR 3455, Jan. 24, 1985; 50 FR 8610, Mar. 4, 1985)
31 CFR 51.32 Subpart D -- Prohibitions and Restrictions on Use of Funds
31 CFR 51.40 Wage rates and labor standards.
(a) Construction laborers and mechanics. A recipient government
shall require that all laborers and mechanics employed by contractors or
subcontractors in the performance of work on any construction project
costing in excess of $2,000 and of which 25 percent or more of the cost
is paid out of its entitlement funds:
(1) Will be paid at rates not less than those prevailing on similar
construction in the locality as determined by the Secretary of Labor in
accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a --
276a-5); and
(2) Will be covered by labor standards specified by the Secretary of
Labor pursuant to 29 CFR parts 1, 3, 5, and 7.
(b) Wage rates. In projects to which the Davis-Bacon Act standards
are applicable, the recipient government must ascertain the U.S.
Department of Labor's wage rate determination for each intended project
and insure that such wage rates are incorporated in the contract
specifications. Wage rate determinations may be obtained by filing a
Standard Form 308 with the Employment Standards Administration of the
applicable regional Office of the U.S. Department of Labor at least
thirty (30) days before the invitation for bids, or in the case of
construction covered by general wage rate determination, the appropriate
rate may be obtained from the Federal Register.
(c) Government employees. A recipient government which employs
individuals whose wages are paid in whole or in part from entitlement
funds must pay wages which are not lower than the prevailing rates of
pay for persons employed in similar public occupations by the same
employer. However, this subsection shall apply with respect to
employees in any category only if 25 percent or more of the wages of all
employees of the recipient government in such category are paid from the
trust fund established by it under 51.101(a) of this part.
31 CFR 51.41 Lobbying.
(a) In general. Entitlement funds may not be used by any State or
unit of local government for the purpose of lobbying (as defined in
51.2(j) of this part) concerning the provisions of the Act.
(b) Activities prohibited. Prohibited lobbying activities include,
but are not limited, to the following:
(1) Personal solicitation of individual members of a legislative body
to influence legislation regarding the Revenue Sharing Program by
personal interview, letter, financial contributions, and other means.
(2) Employment of a lobbyist to engage in proscribed activities.
(c) Activities permitted. Without violation of this section, a
recipient government may:
(1) Use Revenue Sharing funds to pay dues to national or State
organizations.
(2) Use Revenue Sharing funds to attempt to influence public opinion
or to convey opinions and judgments to the public regarding provisions
of the Act, by publication, distribution of books, pamphlets and other
writings.
31 CFR 51.42 Use of entitlement funds in accordance with State or local
law.
A recipient government shall expend its entitlement funds only in
accordance with the laws and procedures applicable to the expenditure of
its own revenues to the extent that those laws and procedures do not
conflict with the provisions of the Act or regulations promulgated
thereunder.
31 CFR 51.43 Procedure for effecting compliance.
(a) Compliance with substantive provisions. If a recipient
government fails to comply with the requirements of this subpart, the
Director may implement the procedures for effecting compliance contained
in 51.3 (a) through (d) of Subpart A.
(b) Compliance with reporting requirements. If a recipient
government fails to comply with the reporting requirements of this
subpart, the Director may implement the delay of payment and/or
constructive waiver provisions of 51.3 (e) of Subpart A and 51.25(b)
of Subpart C of this part.
31 CFR 51.43 Subpart E -- Nondiscrimination by States and Local Governments Receiving Entitlement Funds
31 CFR 51.50 Purpose.
The purpose of this subpart is to effectuate section 6716 of the Act
which provides that no person in the United States shall, on the grounds
of race, color, national origin, or sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under
any program or activity of a recipient government. Any prohibition
against discrimination on the basis of age under the Age Discrimination
Act of 1975 or with respect to a qualified handicapped individual, as
provided in section 504 of the Rehabilitation Act of 1973, or any
prohibition against discrimination on the basis of religion (as modified
by the exemptions and exclusions contained in the Civil Rights Act of
1964, as amended or the Civil Rights Act of 1968), shall also apply to
any such program or activity.
31 CFR 51.51 Definitions.
Unless the context provides otherwise, as used in the subpart, the
term:
(a) Attorney General means the Attorney General of the United States,
or a designate.
(b) Complaint means an allegation submitted in writing to the ORS
which sets forth the nature of the discrimination alleged and the
specific facts upon which the allegation is based. The complaint may be
filed by an individual or organization which believes that a recipient
government has or is committing discrimination prohibited by the
provisions of this subpart.
(c) Compliance review means a review, initiated at the discretion of
the Director, of a recipient government's employment practices,
facilities, or delivery of services for the purpose of ascertaining
compliance with the provisions of this subpart.
(d) Determination means the decision by the Director following a
notification of noncompliance as to whether a recipient government is in
compliance or in noncompliance with the provisions of this subpart.
(e) Facility means all or any portion of a building, structure,
parking lot, road, walk, equipment or other real or personal property or
interests therein.
(f) Finding means the decision by the Director, after the completion
of an investigation or compliance review, that it is more likely than
not that a recipient government or secondary recipient is in
noncompliance with the provisions of this subpart.
(g) Funded means entitlement funds have been or are being made
available for expenditure in, or substantially benefit, a program or
activity.
(h) Holding means any finding of fact or conclusion of law by a
Federal court, State court, or a Federal administrative law judge (after
notice and opportunity for a hearing), which has been litigated,
identifies the recipient government or part thereof which is in
noncompliance and is to the effect that there has been exclusion,
denial, or discrimination on the grounds of race, color, national
origin, sex, age (other than in employment), handicapped status or
religion as prohibited under section 6716 of the Act. Except as
otherwise provided in 51.67, a holding is conclusive as to the issue of
discrimination.
(i) Investigation means fact-finding efforts by the Office of Revenue
Sharing or other agency undertaken after receiving a complaint, or other
information, that a recipient government has failed to comply with the
provisions of this subpart.
(j) Noncompliance means that the Director or an administrative law
judge has found or determined that a recipient government has violated
the provisions of this subpart.
(k) Notification of noncompliance means the notification given to a
recipient government of a finding or receipt by the Director of a
holding.
(l) Program or activity means the operations of an agency or
organizational unit of a recipient government, or the operations or
organizational unit of a secondary recipient, funded with entitlement
funds (examples include, but are not limited to a police department,
department of corrections, health department).
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.52 Discrimination prohibited.
(a) In general. No person in the United States shall, on the ground
of race, color, national origin, or sex, be excluded from participation
in, denied the benefits of, or be subjected to discrimination under any
program or activity of a recipient government or a secondary recipient.
Also prohibited is discrimination:
(1) On the basis of age under the Age Discrimination Act of 1975,
effective July 1, 1979 (hereinafter referred to as discrimination on the
basis of age);
(2) With respect to a qualified handicapped individual, as provided
in section 504 of the Rehabilitation Act of 1973, as amended, (hereafter
referred to as discrimination on the basis of handicapped status); or
(3) On the basis of religion, as modified by exemptions and
exclusions contained in the Civil Rights Act of 1964, as amended or the
Civil Rights Act of 1968, (hereinafter referred to as discrimination on
the basis of religion).
(b) Specific discriminatory actions prohibited. (1) Except as
otherwise provided in 51.55(c)(1) and other sections in this subpart
with respect to services, a recipient government shall not on the ground
of race, color, national origin, sex, handicapped status or age:
(i) Deny any service or other benefit provided.
(ii) Provide any service or other benefit, which is not equal to, or
is provided in a different form, than that provided to others.
(iii) Subject any person to segregated or separate treatment in any
facility or in any matter or process related to receipt of any service
or benefit.
(iv) Restrict in any way the enjoyment of any advantage or privilege
enjoyed by others receiving any service or benefit.
(v) Treat an individual differently from others in determining
whether the individual satisfies any admission, enrollment, eligibility,
membership, or other requirement or condition which individuals must
meet in order to be provided any service or other benefit.
(vi) Determine the types of services, or other benefits or facilities
which will be provided or the class of individuals to whom, or the
situation in which, such services or other benefits or facilities will
be provided by utilizing criteria or methods of administration which
have the effect of:
(A) Subjecting individuals to discrimination;
(B) Perpetuating the results of past discrimination; or
(C) Defeating or substantially impairing the accomplishment of the
objectives of the programs or activities with respect to individuals of
a particular race, color, national origin, and sex, handicapped status
or age.
(2) With respect to planning and advisory boards, a recipient
government shall not on the ground of race, color, national origin, sex,
handicapped status, or religion, deny any person an equal opportunity to
participate as an appointed member of planning or advisory bodies.
(3) With respect to employment, a recipient government shall not
utilize criteria or methods of administration that have the effect of:
(i) Subjecting individuals to discrimination on the basis of race,
color, national origin, sex, handicapped status, or religion in any
program or activity.
(ii) Perpetuating the results of past discriminatory practices.
(iii) Defeating or substantially impairing the accomplishment of the
objectives of the program or activities with respect to individuals of a
particular race, color, national origin, sex, handicapped status, or
religion.
(4) With respect to facilities, a recipient government shall not on
the grounds of race, color, national origin, sex, age, or handicapped
status, except as otherwise provided in Section 51.55 and other sections
of this subpart, make selections of site or location of facilities which
have the effect of:
(i) Excluding individuals from such facilities.
(ii) Denying the individuals the benefits of such facilities.
(iii) Subjecting individuals using the facilities to discrimination.
(5) A recipient government shall not intimidate, threaten, coerce, or
in any way retaliate against any person who files a complaint against
that government alleging discrimination which is covered by the
provisions of this subpart, who assists the ORS in an investigation, or
any other proceedings under this subpart or who opposes a practice made
unlawful by this subpart.
(6) A recipient government shall not use any unvalidated selection
device, including, but not limited to, a minimum height or weight
requirement or physical agility test which operates to
disproportionately exclude members of a protected class. Use of such a
selection device is a violation of this subpart; the device must either
be validated or replaced with a selection device that has less severe
impact pursuant to the Uniform Guidelines on Employee Selection
Procedures.
(7) 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 and should not be considered
all-inclusive.
(c) Exemptions. The provisions of paragraphs (a) and (b) of this
section concerning prohibited discrimination shall not apply:
(1) Where a recipient government demonstrates by clear and convincing
evidence that a program or activity, with respect to which
discrimination is alleged, is not funded in whole or in part with
entitlement funds.
(2) To construction projects commenced prior to January 1, 1977, with
respect to discrimination on the basis of handicapped status, except as
provided in 51.55(k)(11). A construction project shall be deemed to
have commenced when the recipient government has obligated itself by
contract for the physical construction of the project or of any
substantial portion of the project.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.53 Employment discrimination.
(a) Employment practices. In general a recipient government shall
not discriminate on the grounds of race, color, national origin, sex or
religion in the following specific activities:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Setting 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) Granting leaves of absence, sick leave, or other leave;
(6) Providing fringe benefits available by virtue of employment,
whether or not administered by the recipient government;
(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 recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(b) Uniform Guidelines on Employee Selection Procedures. The Equal
Employment Opportunity Commission (EEOC), the Office of Personnel
Management, the Department of Justice, the Department of Labor and the
Department of the Treasury, in carrying out their responsibilities in
ensuring compliance with Federal equal employment opportunity law, have
adopted Uniform Guidelines on Employee Selection Procedures to assist in
establishing and maintaining equal employment opportunities. These
Guidelines are in 29 CFR part 1607; 5 CFR 300.103(c); 990-1 (Book 3)
of the Federal Personnel Manual; 28 CFR 50.14, and 41 CFR 60.3. These
Guidelines, among other things, recognize the unlawfulness of the use of
any employee selection procedures (including tests and minimum education
levels) which disqualify a disproportionate number of persons on grounds
of race, color, religion, sex or national origin and which have not been
validated or otherwise justified in accordance with Federal law.
Discrimination on the basis of handicapped status and age are not
covered by the Guidelines. Recipient governments shall use selection
procedures that comply with the provisions of the Guidelines, and a
violation of the Guidelines shall constitute a violation of this
subpart.
(c) Preemployment inquiries. A recipient may make inquiries of an
applicant for employment concerning the applicant's race, color,
national origin, sex, or religion only for purposes permissible under
the Uniform Guidelines on Employee Selection Procedures.
(d) Self-review. Recipient governments may conduct continuing
reviews of their programs or activities, in accordance with sections 4,
15 and the appendix of the Uniform Guidelines on Employee Selection
Procedures, to determine whether their employment practices have the
effect of denying equal employment opportunity on the basis of race,
color, national origin, sex or religion. Whenever a self-review
indicates that an employment practice is not in compliance with the
Guidelines or this subpart, the recipient government is encouraged to
take appropriate remedial action.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.54 Employment discrimination on the basis of sex.
The EEOC has adopted guidelines on employment discrimination on the
basis of sex (29 CFR part 1604). These guidelines provide practical
assistance to enable recipient governments to bring themselves into
compliance with Federal law. Recipient governments shall comply with
the provisions of these Guidelines, which are adopted by the ORS. A
violation of these Guidelines shall constitute a violation of this
subpart.
31 CFR 51.55 Discrimination on the basis of handicap.
(a) Definitions. As used in this section the phrase:
(1) Handicapped individual 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.
(2) 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; disgestive; genitourinary;
hemic and lymphatic; skin; and endocrine; or (ii) any mental or
psychological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning
disabilities. The term ''physical or mental impairment'' includes, but
is not limited to, such diseases and conditions as orthopedic, visual,
speech and hearing impairments, cerebral palsy, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, drug addiction and alcoholism.
(3) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(4) 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.
(5) Is regarded as having an impairment means: (i) Has a physical or
mental impairment that does not substantially limit major life
activities, but that is treated by a recipient government 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 (a)(1) of this section but
is treated by a recipient government as having such impairment.
(6) Qualified handicapped individual means: (i) With respect to
employment, a handicapped individual who, with reasonable accommodation,
can perform the essential functions of the job in question; and (ii)
with respect to services, a handicapped individual who meets the
essential eligibility requirements for the receipt of such services.
(b) General prohibitions with respect to discrimination against a
qualified handicapped individual. (1) Those general prohibitions
described in 51.52(b) of this subpart, also apply to discrimination
against a handicapped individual, with the exception of 51.52(b)(1)
(ii), (iii) and (iv) of this subpart which are covered by the provisions
of this subsection. In addition, a recipient government shall:
(i) Not exclude a qualified handicapped individual from participation
in programs or activities open to the general public, regardless of the
availability of permissibly separate or different programs or activities
designed especially for the handicapped;
(ii) Administer programs and activities in the most integrated
setting appropriate to the needs of qualified handicapped individuals;
(iii) Take appropriate steps to ensure that communications with
applicants, employees, beneficiaries, and the general public are
available to persons with impaired vision or hearing, through means such
as brailled or taped material, telecommunication devices, televised
information or other media;
(iv) Take the appropriate steps to ensure that the public hearing
required under 51.14 of this part is accessible to qualified
handicapped individuals and that notice of such hearings described in
51.13 of this part is made available to individuals with impaired vision
and hearing, through means such as telecommunication devices, brailled
or taped material, televised information, qualified sign language
interpreters or other media;
(v) Provide a qualified handicapped individual with an aid, benefit,
or service that is 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;
(vi) Not provide a different or separate aid, benefit, or service to
qualified handicapped individuals or to any class of qualified
handicapped individuals than is provided to others unless such action is
necessary to provide qualified handicapped individuals with aid,
benefits, or services that are as effective as those provided to others;
(vii) Not aid or perpetuate discrimination against a qualified
handicapped individual by funding an agency, organization, or person
that discriminates on the basis of handicap in providing any aid,
benefit, or service to beneficiaries of the program or activity;
(viii) A recipient government shall not, directly or through
contractual or other arrangements, utilize criteria or methods of
administration that:
(A) Have the effect of subjecting qualified handicapped individuals
to discrimination on the basis of their handicaps;
(B) Have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient government's
program with respect to handicapped individuals; or
(C) Perpetuate the discrimination of another department of the
recipient government if both departments are subject to common
administrative control or are agencies of the same recipient government;
and,
(2) The exclusion of persons that are not handicapped individuals
from the benefits of a program limited by Federal statute or executive
order to handicapped individuals, or the exclusion of a specific class
of handicapped individuals from a program limited by Federal statute or
executive order to a different class of handicapped individuals, is not
prohibited by this section.
(3) For purposes of this section, aids, benefits, and services, to be
equally effective, are not required to produce the identical result or
level of achievement for handicapped and nonhandicapped individuals.
They must, however, afford qualified handicapped individuals equal
opportunity to obtain the identical result, or achievement in the most
integrated setting appropriate to the individual's needs.
(4) A recipient government which government receives $25,000 or more
entitlement funds in each entitlement period, shall, at the request of,
and in consultation with such individual, provide appropriate auxiliary
aids to individuals with impaired sensory, manual or speaking skills,
where necessary to prevent a qualified handicapped individual from being
denied the benefits of, excluded from participation in or subjected to
discrimination under a program or activity. Such auxiliary aids may
include brailled or taped material, the provision of qualified sign
language interpreters, the provision of telecommunication devices,
captioned films, video tapes, televised information or other media. The
Director may require recipient governments which receive less than
$25,000 in entitlement funds in any entitlement period to provide
appropriate auxiliary aids when the Director finds that such aids are
appropriate to remedy a violation of the provisions of this section.
(5) The enforcement provisions contained in this subpart are
applicable to violations of the provisions of this section.
(c) Self-evaluation. (1) A recipient government shall, within one
year of the effective date of this section, with the assistance of
interested individuals, including handicapped individuals and
organizations representing them:
(i) Evaluate its current policies and practices and their effects
which do not meet the requirements of this section;
(ii) Modify any policies and practices that do not meet the
requirements of this section, and take appropriate remedial steps to
eliminate the effects of any discrimination that resulted from adherence
to these discriminatory policies and practices, except as otherwise
provided where structural changes may be required pursuant to paragraph
(k) of this section.
(2) Self-evaluations already prepared (or under preparation) to
comply with the section 504 requirements imposed by other Federal
departments or agencies, may be used as part of the self-evaluation
required pursuant to this section.
(3) The self-evaluation may include but is not limited to an
examination of: A recipient government's policies and practices
concerning employment decisions; the extent to which its programs and
activities are readily accessible to and usable by the handicapped;
whether its policies and practices concerning the delivery of aids,
benefits and services to beneficiaries are free from discriminatory
effects on the handicapped; and, whether it is engaging in contractual
arrangements which have the effect of subjecting handicapped persons to
discrimination.
(4) A recipient government, which government receives $25,000 or more
entitlement funds in each entitlement period, shall, for at least three
years following completion of the evaluation required under paragraph
(c)(1) of this section, maintain on file, make available for public
inspection, and provide to the Director upon request: (i) A list of the
interested individuals consulted, (ii) a description of policies and
practices examined and problems identified, and (iii) a description of
modifications made and remedial steps taken.
(d) Designation of responsible employee and adoption of grievance
procedures. (1) A recipient government, which government receives
$25,000 or more entitlement funds in each entitlement period, shall
designate at least one person to coordinate its efforts to comply with
this section. Where designation of such a person has already been made
to comply with the section 504 requirements of other Federal departments
or agencies, that person may also be used to comply with the
requirements of this section.
(2) A recipient government, which government receives $25,000 or more
entitlement funds for one or more entitlement periods, shall adopt a
grievance procedure that incorporates appropriate due process standards
and that provides for the prompt and equitable resolution of complaints
alleging any action prohibited by this section. Such procedures need
not be established with respect to complaints from applicants for
employment or from applicants for admission to post-secondary
educational institutions. Existing grievance procedures may be used to
meet the requirements of this subsection.
(e) Notice. (1) A recipient government, which government receives
$25,000 or more entitlement funds in each entitlement period, 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
government, that it does not discriminate on the basis of handicapped
status in violation of this section. The notification shall state,
where appropriate, that the recipient government does not discriminate
on the basis of handicapped status in admission or access to, or
treatment or employment in, its programs and activities. The
notification shall also include an identification of the responsible
employee designated pursuant to 51.55(d). A recipient government, shall
make the initial notification required by this paragraph within ninety
(90) days of the effective date of this section. Methods of initial and
continuing notification shall ensure that the information is
communicated to the visually or hearing impaired. Such methods may
include the use of public service radio and television announcements,
and telecommunications devices, the posting of notices, the publications
of notices in newspapers and magazines, the placement of notices in
recipient governments' publications, and the distribution of memoranda
or other written and taped communications.
(2) Whenever a recipient government publishes or uses recruitment
materials or publications containing general information that it makes
available to participants, beneficiaries, applicants, or employees, or
the general public, it shall include in those materials or publications
a statement that it is the policy of the recipient government not to
discriminate against the handicapped in employment or the provisions of
services. A recipient government may meet the requirements of this
paragraph either by including appropriate inserts in existing materials
and publications or by revising and reprinting the materials and
publications.
(f) Administrative requirements of small recipient governments. The
Director may require any recipient government, which government receives
less than $25,000 in entitlement funds in each entitlement period, to
comply with the provisions of 51.55(c)(4), (d) and (e), in whole or in
part, when the Director finds that such requirements are appropriate to
remedy a violation of provisions of this section.
(g) Employment discrimination against a qualified handicapped
individual. (1) A recipient government shall:
(i) Not discriminate against a qualified handicapped individual in
employment in any program or activity;
(ii) Not participate in a contractual or other relationship that has
the effect of subjecting a qualified handicapped applicant or employee
to discrimination prohibited by this section. 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 government,
and with organizations providing training and apprenticeship program;
(iii) Make all decisions concerning employment under any program or
activity in a manner which ensures that discrimination on the basis of
handicap does not occur and not limit, segregate, nor classify
applicants or employees in any way that adversely affects their
opportunities or status beause of handicap;
(iv) Take appropriate steps to ensure that communications with its
applicants and employees are available to persons with impaired vision
and hearing as described in 51.55 (b)(1)(iii) and (b)(4);
(v) Not discriminate against a qualified handicapped individual in
the following specific activities:
(A) Recruitment, advertising, and the processing of applications for
employment;
(B) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(C) Setting rates of pay or any other form of compensation and
changes in compensation;
(D) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(E) Granting leaves of absence, sick leave, or any other leave;
(F) Providing fringe benefits available by virtue of employment,
whether or not administered by the recipient government;
(G) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(H) Employer sponsored activities, including social or recreational
programs; and
(I) Any other term, condition, or privilege of employment.
(2) A recipient government's obligation to comply with this section
is not affected by any inconsistent term of any collective bargaining
agreement to which it is a party.
(3) A recipient government's obligation to comply with this part is
not obviated or alleviated because employment opportunities in any
occupation or profession are more limited for handicapped individuals
than for nonhandicapped individuals.
(h) Reasonable accommodation. (1) A recipient government shall make
reasonable accommodation to the known physical or mental limitations of
a qualified handicapped applicant or employee unless the recipient
government can demonstrate that the accommodation would impose an undue
hardship on the operation of its program or activity.
(2) Reasonable accommodation may include:
(i) Making facilities used by employees readily accessible to and
usable by handicapped persons, and
(ii) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices (e.g.,
telecommunications devices and other telephone devices), the provision
of readers or qualified sign language interpreters, and other similar
actions. Accommodations shall be made in consultation with the
handicapped individual.
(3) The determination of whether an accommodation would impose an
undue hardship on the operation of a recipient government's program or
activity shall be made on a case-by-case basis upon consideration of the
following factors:
(i) The overall size of the recipient government's operations with
respect to number of employees, number and types of facilities, and size
of budget;
(ii) The type, composition and structure of the specific program or
activity and the structure of the workforce required; and
(iii) The nature and cost of the accommodation needed. Such
reasonable accommodation may require a recipient government to undertake
more than an insignificant economic cost in making allowance for the
handicap of a qualified applicant or employee and to accept minor
inconvenience which does not bear on the ability of the handicapped
individual to perform the essential functions of the job in question.
(4) A recipient government may not deny any employment opportunity to
a qualified handicapped employee or applicant if the basis for the
denial is the need to make reasonable accommodation to the physical or
mental limitations of the employee or applicant.
(i) Employment criteria and policies. (1) A recipient government may
not use any employment test, selection criterion or policy, that screens
out, or tends to screen out from consideration for employment, a
handicapped individual or any class of handicapped individuals unless:
(i) The test, selection criterion or policy as used by the recipient,
is shown to be directly related to the essential functions of the
position in question, and
(ii) Alternative job-related tests, criteria or policies that do not
screen out, or tend to screen out as many handicapped individuals are
shown to be not available.
(2) A recipient government shall select and administer tests using
procedures (e.g. auxiliary aids such as readers for visually-impaired
individuals or qualified sign language interpreters for hearing-impaired
individuals) that accommodate the special problems of handicapped
individuals to the fullest extent consistent with the objectives of the
test. The test results shall accurately reflect the applicant's or
employee's ability to perform the essential functions of the job in
question, rather than the applicant's or employee's impaired sensory,
manual or speaking skills, except where such skills are essential
requirements of the job.
(3) If a recipient government has established a test, selection
criterion or policy that explicitly or implicitly screens out, or tends
to screen out, a class of handicapped individuals from a particular job,
and cannot establish that the class as a whole is unqualified to perform
the job, the recipient government shall evaluate each such individual
who applies for the job to determine whether the applicant can perform
the essential functions of the job in question despite the handicap. As
part of the determination, the recipient government shall also decide
whether such applicant would be qualified to perform the essential
functions of the job in question through reasonable accommodation
without undue hardship, as provided in 51.55(h).
(j) Preemployment inquiries. (1) Except as provided in paragraphs
(j) (2) and (3) of this subsection, a recipient government may not
conduct a preemployment medical examination or make preemployment
inquiry of an applicant as to whether the applicant is a handicapped
individual or as to the nature or the severity of a handicap. A
recipient government may, however, make preemployment inquiry into an
applicant's ability to perform the essential functions of the job.
(2) When a recipient government is taking remedial action to correct
the effects of past discrimination; when a recipient government is
taking voluntary action to overcome the effects of conditions that
resulted in limited participation in a program or activity, or when a
recipient government is taking affirmative action, the recipient
government may invite applicants for employment to indicate whether and
to what extent they are handicapped, provided that:
(i) The recipient government states clearly on any written
questionnaire used for this purpose or makes clear orally, if no written
questionnaire is used, that the information requestd is intended for use
solely in connection with its remedial action obligations or its
voluntary or affirmative action efforts; and
(ii) The recipient government states clearly that the information is
being requested on a voluntary basis, that it will be kept confidential
as provided in paragraph (j)(4) of this section, that refusal to provide
it will not subject the applicant or employee to any adverse treatment,
and that it will be used only in accordance with this section.
(3) Nothing in this section shall prohibit a recipient government
from conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty, provided
that: (i) All entering employees are subjected to such an examination
regardless of handicap, and (ii) the results of such an examination are
used only in accordance with the requirements of this section.
(4) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms and shall be accorded confidentiality as
used for medical records, except that:
(i) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped individuals and regarding necessary
accommodations;
(ii) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(iii) Government officials investigating compliance with the Act
shall be provided relevant information upon request.
(k) Program accessibility -- (1) Discrimination prohibited. No
qualified handicapped individual shall, because the facilities owned or
leased by a recipient government 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 of a recipient government, which government receives
entitlement funds.
(2) Existing facilities -- (i) Program accessibility. A recipient
government shall operate each program or activity in existing facilities
owned or leased by it, so that the program or activity, when viewed in
its entirety, is readily accessible to and usable by handicapped
individuals. Recipient governments are not necessarily required to make
each existing facility, or every part of an existing facility accessible
to and usable by handicapped individuals. Where structural changes are
necessary to make programs or activities in existing facilities
accessible, such changes shall be made as soon as practicable, but in no
event later than three years after the effective date of this regulation
except as otherwise provided in this section. Recipient governments
shall not be required to revoke leases on which lessors refuse to make
the structural changes needed if no more accessible facility is
available, but shall use the provisions of paragraph (k)(2)(ii) of this
section to ensure that the maximum possible accessibility is achieved.
(ii) Methods of compliance. A recipient government may comply with
the requirements of paragraph (k)(1) of this section through such means
as redesign of equipment, reassignment of classes or other services to
accessible buildings, assignment of aids to benficiaries, home visits,
delivery of health, welfare, or other social services at alternate
accessible sites, alteration of existing facilities and construction of
new facilities in conformance with the requirements of paragraph (k)(7)
of this section, or any other methods that result in making its programs
or activities accessible to handicapped individuals. A recipient
government is not required to make structural changes in existing
facilities where other methods are effective in achieving compliance
with subsection (k)(1) of this section. In choosing among available
methods for meeting the requirements of paragraph (k)(1) of this
section, a recipient government shall give priority to those methods
that offer programs and activities to handicapped persons in the most
integrated setting appropriate to obtain the full benefits of the
program.
(3) Exception for small recipient governments. If a recipient
government, which government receives less than $25,000 in entitlement
funds, in any entitlement period, determines, after consultation with a
handicapped individual seeking a health, welfare or social service, that
there is no method of complying with paragraph (k)(1) of this section
other than making a significant alteration in its existing facilities,
that government may, as an alternative, refer the handicapped individual
to other providers of those services that are accessible at no
additional cost to the handicapped individual. Examples of other
providers of those services are States, counties or other larger units
of local government.
(4) Time periods -- (i) Nonstructural changes for accessibility.
Where a recipient government has determined that certain nonstructural
changes are necessary to make its programs and activities readily
accessible to and usable by the handicapped, after evaluating its
policies and practices during the self-evaluation required pursuant to
paragraph (c) of this section, these changes shall be made, with other
modifications determined to be needed, within the one year period for
completion of the self-evaluation.
(ii) Structural changes for accessibility. Except as otherwise
provided in subparagraph (k)(4)(iii) of this section, where a recipient
government has determined that structural changes in facilities are
necessary to make its programs and activities readily accessible to and
usable by the handicapped, after evaluating its policies and practices
during the self-evaluation required pursuant to paragraph (c) of this
section, those changs shall be made as soon as possible, but not later
than three years from the effective date of this section.
(iii) Transportation systems. Transportation systems shall be made
accessible to qualified handicapped individuals as provided in paragraph
(k)(1) of this section in the same manner and within the time periods
prescribed in regulations issued by the Department of Transportation (49
CFR part 27).
(5) Transition plan. In the event that structural changes to
facilities are necessary to comply with requirements of paragraph (k)(1)
of this section, a recipient government shall develop, within one year
of the effective date of this section, a transition plan setting forth
the steps necessary to complete such changes within the time periods in
paragraph (k)(4) of this section. The plan shall be prepared as part of
the self-evaluation required under 51.55(c) and developed with the
assistance of interested individuals, including handicapped individuals
or organizations representing handicapped individuals. Transition plans
already prepared (or under preparation) to comply with the section 504
requirements imposed by other Federal agencies, may be used as part of
the transition plan required pursuant to this section. A recipient
government which government receives $25,000 or more in entitlement
funds shall make a copy of the transition plan available for public
inspection for a period of three years and furnish it to the Director
upon request. The plan shall, at a minimum:
(i) Identify physical obstacles in the recipient government's
facilities that limit the accessibility of its program or activity to
handicapped individuals;
(ii) Describe in detail the methods that will be used to make the
facilities accessible;
(iii) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period for the transition is
longer than one year, identify steps that will be taken during each year
of the transition period; and
(iv) Indicate the person responsible for implementation of the plan.
(6) Notice. The recipient government shall adopt and implement
procedures to require that interested individuals, including individuals
with impaired vision or hearing, can obtain information as to the
existence and location of particular services, activities, and
facilities that are accessible to and usable by handicapped individuals.
(7) New construction. The construction of facilities by a recipient
government financed in whole or in part with entitlement funds or the
construction of a facility pursuant to a contract for the recipient
government to lease the facility in its entirety, on or after January 1,
1977, shall be accomplished so as to be readily accessible to and usable
by handicapped individuals.
(8) Alterations. Alterations to existing facilities owned, or leased
by a recipient government, which alterations are funded with entitlement
funds and commenced on or after January 1, 1977, shall, to the maximum
extent feasible, be designed and constructed to be readily accessible to
and usable by handicapped individuals.
(9) American National Standards Institute Accessibility Standards.
Design, construction, or alteration of facilities in conformance with
the ''American National Standard Specifications for Making Buildings and
Facilities Accessible to, and Usable by, the Physically Handicapped,''
published by the American National Standards Institute, Inc. (ANSI A
117.1-1961 (1971)),1 which is incorporated by reference, shall
constitute compliance with paragraphs (k) (1) and (2) of this section.
A recipient government also may use the revised ANSI standards issued in
May of 1980, which are also incorporated by reference and are obtainable
at the same address. A recipient government may use standards other
than the 1961 or 1980 standards or other methods, if the government
establishes that it is clearly evident that equivalent or better access
to the facility or part of the facility is provided.
(10) Exception for construction projects commenced prior to January
1, 1977. The provisions of this subsection do not apply to buildings or
construction projects, including those funded with revenue sharing
funds, commenced prior to January 1, 1977, unless it is determined that
programs or activities funded in whole or in part with revenue sharing
funds are conducted within or make use of such facilities, in which
case, those programs and activities must be readily accessible to and
usable by handicapped individuals as described in paragraphs (k)(2) (i)
and (ii) of this section.
(11) ''Commencement of construction'' defined. A construction
project shall be deemed to have commenced when the recipient government
has obligated itself by contract for the physical construction of the
project or any substantial portion of the project.
(l) Coordination of unresolved legal issues. Whenever the Director
receives a complaint which alleges a violation of the provisions of this
section and involves a legal issue that has not been resolved judicially
or administratively, the Director shall request guidance from the
Department of Justice which was designated by Executive Order 12250 to
coordinate section 504, within one week of receipt of such complaint.
The Director may defer action on the complaint pending receipt of the
guidance if it is determined that such guidance will be received within
one month from the issuance of the request. Thereafter, the Director
shall then act in accordance with the guidance. If the Director
determines that the Department of Justice cannot provide guidance
concerning the proper course of action within a period of one month
(thirty (30) days), the Director shall proceed to initiate fact-finding
activities with respect to the complaint. During that process, the
Director shall continue to keep the Department of Justice advised of the
actions taken, pending receipt of the guidance requested.
(Information collection requirements in paragraph (c)(4) approved by
the Office of Management and Budget under control number 1505-0036)
(50 FR 3455, Jan. 24, 1985; 50 FR 8610 and 8612, Mar. 4, 1985)
1Copies obtainable from American National Standards Institute, Inc.,
1430 Broadway, New York, N.Y. 10018 -- (212) 354-3300. Copies are also
on file with the Federal Register.
31 CFR 51.56 Discrimination on the basis of age.
(a) Purpose. This regulation sets forth the prohibition against
discrimination on the basis of age in programs or activities of
recipient governments as required by the Age Discrimination Act of 1975.
Recipient governments may, however, continue to use certain age
distinctions and factors other than age which meet the requirements set
forth in this section.
(b) Definitions -- (1) Age Discrimination Act means the Age
Discrimination Act of 1975, as amended (42 U.S.C. 6101, Title II of Pub.
L. 94-135).
(2) Action means any act, activity, policy rule, standard or method
of administration.
(3) Age means how old a person is or the number of elapsed years from
the date of a person's birth.
(4) Age distinction means any action using age or an age-related
term.
(5) Age-related term means a word or words which necessarily implies
a particular age or range of ages (example, ''children,'' ''adult,''
''older persons,'' but not ''student'').
(6) Claim means a written statement, alleging discrimination on the
basis of age by a recipient government, that is referred to mediation.
(7) FMCS means the Federal Mediation and Conciliation Service.
(8) Mediation means the process by which an impartial mediator
through the FMCS attempts to resolve a claim of discrimination on the
basis of age, on which a complaint is based.
(c) Discrimination prohibited -- (1) General rule. Those general
prohibitions described in section 51.52 of this subpart also apply to
discrimination on the basis of age, except that 51.52(b)(3) containing
general prohibitions against employment discrimination shall not apply.
(2) Specific rules. A recipient government may not, in any program
or activity, use age distinctions or take any other actions, which have
the effect of causing age discrimination prohibited under 51.52 (other
than 51.52(b)(3)).
(3) Prohibition against intimidation or retaliation. A recipient
government may not in any program or activity engage in acts of
intimidation or retaliation against any person who attempts to assert a
right protected by this section or cooperates in any mediation,
investigation, hearing, or other part of the investigation or
enforcement process described in this subpart.
(4) Employment discrimination not covered. The prohibitions
contained in this section shall not apply to the employment practices of
recipient governments or their secondary recipients.
(d) Exceptions to the rules against age discrimination -- (1)
Definitions. For purposes of this subsection, the terms ''normal
operation'' and ''statutory objective'' shall have the following
meaning:
(i) Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
(ii) Statutory objective means any purpose of a program or activity
expressly stated in any Federal statute, State statute, or local statute
or ordinance adopted by an elected general purpose legislative body.
(2) Normal operation or statutory objective of any program or
activity. A recipient government is permitted to take action, otherwise
prohibited by paragraphs (c) (1) and (2) of this section, if the action
reasonably takes into account age as a factor necessary to the normal
operation of the achievement of any statutory objective of a program or
activity, thereby, complying with the following four-part test:
(i) Age is used as a measure or approximation of one or more non-age
characteristic; and
(ii) The other non-age characteristic(s) are measured or approximated
in order for the normal operation of the program or activity to
continue, or to achieve any statutory objective of the program or
activity; and
(iii) The other non-age characteristic(s) can be reasonably measured
or approximated by the use of age; and
(iv) The other non-age characteristic(s) are impractical to measure
directly on an individual basis.
(3) Reasonable factors other than age. A recipient government may
take an action otherwise prohibited by paragraphs (c) (1) and (2), which
is based on a factor other than age, even though that action may have a
disproportionate effect on persons of different ages, provided that the
other factor bears a direct and substantial relationship to the normal
operation of the program or activity or to the achievement of a
statutory objective.
(4) Affirmative action. If a recipient government or a secondary
recipient operates a program or activity which serves the elderly or
children in addition to persons of other ages, and provides special
benefits to the elderly or to children, the provision of these benefits
shall be presumed to be voluntary affirmative action, and necessary to
the normal operation of the program notwithstanding the provisions of
paragraph (d) of this section.
(5) Age distinction contained in Federal, State, or local statute or
ordinance. The provisions of this section shall not apply to an age
distinction contained in that part of a Federal, State or local statute
or ordinance adopted by an elected general purpose legislative body
which:
(i) Provides any benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in
age-related terms.
(e) Burden of proof. The burden of proving that an age distinction
or other action falls within the exceptions outlined in subsections
51.56(d) (2) and (3) is on the recipient government.
(f) Self-evaluation. (1) A recipient government receiving more than
$25,000 in Revenue Sharing funds per entitlement period may as part of a
compliance review under 51.61 of this part or an investigation under
51.62 of this part be required to complete a written self-evaluation in
a manner specified by the Director.
(2) In the self-evaluation, the recipient government shall identify
all age distinctions it uses, and justify age distinctions it imposes in
programs or activities.
(3) A recipient government shall take corrective action whenever a
self-evaluation indicates noncompliance with the regulations.
(g) Enforcement generally. Except as otherwise provided in this
section, the enforcement provisions contained in this subpart shall be
used to effectuate compliance with the provisions of this section.
(h) Mediation alternative. (1) Any individual who believes that
anyone has been subjected to discrimination on the basis of age may file
an administrative compliant with the Director as provided in 51.62(a)
of this subpart. However, such individual may, as an alternative, elect
to have the claim(s) of discrimination on which the complaint is based
referred by the Director for mediation by the Federal Mediation and
Conciliation Service (FMCS).
(2) Within five (5) days of receipt of a claim of age discrimination,
the Director shall notify the claimant of the alternative of mediation
and request the claimant to notify the ORS whether mediation of the
claim of age discrimination is elected.
(3) If mediation is elected, the claimant shall personally or by
representative notify the Director of the ORS in writing of such
election. The notice shall set forth the facts upon which the claim of
age discrimination by a recipient government is based. The Director
shall refer the claim to FMCS within five (5) days of receipt of the
notification of the election of mediation, provided that it has been
determined that the claim is within the jurisdiction of this section and
contains all information necessary for referral to FMCS.
(4) The Director shall advise the chief executive officer of the
recipient government of any referral to the FMCS. Both the individual
filing the claim and the recipient government against whom
discrimination is alleged shall participate in the mediation process to
the extent necessary to reach an agreement or make an informed judgment
that an agreement is not possible. There must be at least one meeting
with the mediator before the Director will accept a judgment that an
agreement is not possible. However, the recipient government and the
claimant need not meet with the mediator at the same time.
(5) If the claimant and the recipient government reach an agreement,
the mediator shall prepare a written statement of the agreement for the
signature of the claimant and the chief executive officer of the
recipient government. The mediator shall send a signed copy of the
agreement to the Director. The Director will take no further action on
the claim, unless she is notified that the agreement has been breached,
in which case the claim will be treated as a complaint pursuant to
51.61 of this subpart.
(6) The mediation process shall be limited to a maximum of sixty (60)
days after the claimant notifies the Director of the election of the
mediation process. Mediation ends if:
(i) Sixty (60) days elapse from the time the Director receives notice
from the claimant;
(ii) Prior to the end of the 60-day period, an agreement is reached;
or
(iii) Prior to the end of the 60-day period, the mediator determines
that an agreement cannot be reached.
(7) The mediator shall return unresolved claims to the Director, who
shall upon receipt, consider such unresolved claims to be administrative
complaints to be processed in accordance with the procedures set forth
in 51.61(a) of this subpart.
(8) The mediator shall protect the confidentiality of all information
obtained in the course of the mediation process. No mediator shall
testify in any adjudicative proceeding, produce any document, or
otherwise disclose any information obtained in the course of the
mediation process without prior approval of the head of the FMCS.
(9) Age discrimination claims which also allege other bases of
discrimination, such as sex or race, will at the election of the
complainant, and at the discretion of the Director, FMCS, be mediated.
All bases or allegation of discrimination will be submitted to
mediation. If the mediation process fails, the entire claim will be
processed as a complaint under 51.61 of this subpart.
(50 FR 3455, Jan. 24, 1985; 50 FR 8610 and 8612, Mar. 4, 1985)
31 CFR 51.57 Discrimination on the basis of national origin.
The EEOC has adopted Guidelines on discrimination on the basis of
national origin (29 CFR part 1606). These Guidelines provide practical
assistance to enable recipient governments to bring themselves into
compliance with Federal law. Recipient governments shall comply with
the provisions of these Guidelines, which are adopted by the ORS. A
violation of these Guidelines shall constitute a violation of this
subpart.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.58 Discrimination on the basis of religion.
(a) In general. Any prohibition against discrimination on the basis
of religion, or any exclusion or exemption from such discrimination, as
provided in the Civil Rights Act of 1964 or title VIII of the Act of
April, 1968, (hereafter referred to as the Civil Rights Act of 1968),
shall apply to any program or activity of a recipient government which
government receives entitlement funds under the Act.
(b) EEOC Guidelines. The EEOC has adopted Guidelines on
discrimination on the basis of religion (29 CFR part 1605). These
Guidelines provide practical assistance to enable recipient governments
to bring themselves into compliance with Federal law. Recipient
governments shall comply with the provisions of these Guidelines, which
are adopted by the ORS. A violation of these Guidelines shall
constitute a violation of this subpart.
31 CFR 51.59 Assurances required.
(a) In general. In order to qualify for any payment of entitlement
funds for any entitlement period, each Governor of a State or each chief
executive officer of a unit of local government shall execute to the
satisfaction of the Director an assurance that all programs and
activities of a recipient government will be conducted in compliance
with the requirements of this subpart. The chief executive officer is
also required to assure that in the event a Federal or State court or
Federal administrative law judge makes a holding as defined in
subsection 51.51(h) of this subpart against the recipient government,
such recipient government will forward a copy of the holding to the
Director within ten (10) days of receipt by the recipient government.
Assurances required under this paragraph shall be in such form and
detail as prescribed by the Director.
(b) Delay and constructive waiver of entitlement payments. (1) The
failure of a recipient government to comply with the assurance and
reporting requirements of subpart E of this part which include
submission of assurances and requests for information concerning
compliance with the provisions of this subpart, may result in the delay
of the further payment of entitlement funds until the assurance, report
or information requested is received. A delay of the payment of
entitlement funds shall not be subject to the procedures for affecting
compliance set forth in this subpart.
(2) The Director may, after one or more quarterly payments of
entitlement funds have been delayed pursuant to paragraph (b)(1) of this
section, constructively waive such funds pursuant to 51.25(b) of this
part. Entitlement payments constructively waived shall not be paid to
the recipient government.
(50 FR 3455, Jan. 24, 1985; 50 FR 8611, Mar. 4, 1985, as amended at
51 FR 26884, July 28, 1986)
31 CFR 51.60 Compliance information and reports.
(a) Access to sources of information. Each recipient government
shall permit access by authorized representatives of the Office of
Revenue Sharing and the Department of Justice during normal business
hours to such facilities, books, records, accounts, personnel, and other
sources of information as may be relevant to a determination of whether
the recipient government is complying with the provisions of this
subpart. Where any information required of a recipient government is in
the exclusive possession of any other agency, institution, or person,
and such agency, institution, or person fails or refuses to furnish this
information to the ORS or its authorized representatives, the
responsibility for providing such information shall remain with the
recipient government.
(b) Compliance reports. Each recipient government shall submit on
request of the Director timely, complete and accurate compliance reports
at such times, in such form, and containing such information, as the
Director may determine to be necessary or useful to ascertain whether
the recipient government has complied or is complying with the
requirements of the subpart. Recipient governments shall make available
on request of Office of Revenue Sharing officials, racial, ethnic,
male/female, and national origin data showing the extent to which
minorities and females will be beneficiaries of entitlement funds. The
recipient government shall also make available on request similar data
concerning age distinctions and handicapped status. In the case of any
program under which a primary recipient government extends or will
extend entitlement funds to any secondary recipient, the secondary
recipient shall submit such compliance reports to the primary recipient
government as may be necessary or useful to enable the primary recipient
to carry out its obligations as a recipient government under this
subpart. Each recipient government shall identify, on request of the
Office of Revenue Sharing, any State or local agency which has been
legally authorized to monitor its civil rights compliance activities.
(c) Delay and constructive waiver of entitlement payments. (1) The
failure of a recipient government to comply with the assurance and
reporting requirements of subpart E of this part which include
submission of reports and response to specific requests for information
concerning possible violation of this subpart, may result in the delay
of the further payment of entitlement funds until the assurance, report
or information requested is received. A delay of the payment of
entitlement funds shall not be subject to the procedures for affecting
compliance set forth in this subpart.
(2) The Director may, after one or more quarterly payments of
entitlement funds have been delayed pursuant to paragraph (c)(1) of this
section, constructively waive such funds pursuant to 51.25(b) of this
part. Entitlement payments constructively waived will no longer be
available to the recipient government.
(50 FR 3455, Jan. 24, 1985; 50 FR 8611, Mar. 4, 1985, as amended at
51 FR 26884, July 28, 1986)
31 CFR 51.61 Compliance reviews and affirmative action.
(a) Compliance reviews. (1) The Director may periodically conduct
compliance reviews of selected recipient governments.
(2) Selection for review shall be made on the basis of any of the
following considerations:
(i) The relative disparity between the percentage of minorities, or
women, in the relevant labor market, and the percentage of minorities,
or women, employed by the recipient government;
(ii) The percentage of women and minorities in the population
receiving benefits from a program or activity;
(iii) The number and nature of discrimination complaints filed
against a recipient with ORS or other Federal agencies;
(iv) The scope of the problems revealed by any investigation of
allegations of noncompliance against a recipient government; and
(v) The amount of entitlement funds provided to the recipient
government.
(3) Within ninety (90) days after selection of a recipient government
for review, the Director shall inform the recipient government that it
has been selected and will initiate the review. The review will
ordinarily be initiated by a letter requesting data pertinent to the
review and advising the recipient government of:
(i) The practice(s) to be reviewed;
(ii) The program or activities affected by the review;
(iii) The opportunity to make, at any time prior to the receipt of
the Director's findings, a documentary submission responding to the
Director, explaining, validating, or otherwise addressing the practices
under review; and
(iv) the schedule under which the review will be conducted and a
finding made.
(4) Within one hundred eighty (180) days after the initiation of the
review, the Director shall advise the chief executive officer of the
appropriate recipient government of:
(i) The results of the review; and
(ii) Where appropriate, a recommendation for corrective action.
(5) If within thirty (30) days after the recipient government has
been notified of corrective actions required pursuant to paragraph
(a)(4), of this section, a compliance agreement is not secured, the
Director shall institute administrative proceedings pursuant to 51.64,
et seq. and Subpart G of this part.
(b) Affirmative action. The EEOC has adopted Guidelines for
affirmative action (29 CFR part 1608). These Guidelines indicate when
voluntary affirmative action is appropriate and are adopted by the ORS.
31 CFR 51.62 Administrative complaints and investigations.
(a) Administrative complaints. Any person who believes that he or
she has been subjected to discrimination prohibited by this subpart, may
personally or by a representative, file a complaint with the Director of
the Office of Revenue Sharing (Treasury Department, Washington, D.C.
20226). A person who has not personally been subjected to discrimination
may also file a complaint. The complaint must be a written statement
setting forth the nature of the discrimination alleged and the facts
upon which the allegation is based.
(b) Investigations. (1) The Director shall advise the chief
executive officer of the recipient government of any administrative
complaint received pursuant to paragraph (a) within thirty (30) days of
the receipt of such complaint.
(2) The Office of Revenue Sharing shall investigate administrative
complaints described in paragraph (a). Information contained within the
files of the Office of Revenue Sharing or other information which
suggests discrimination prohibited by this subpart may become part of an
ongoing or future investigation.
(3) Such investigations will be made with the assistance of the
complainant(s) and of the recipient government to the maximum extent
feasible.
(4) In appropriate cases the Director may defer to the Attorney
General as provided for in an agreement with the Department of Justice.
(5) The scope of such investigations may not be limited to the
administrative complaint or other information, but may include any
matters either discovered during the investigation or reasonably flowing
from said administrative complaint or other information.
(6) The Director shall to the maximum extent feasible, make a finding
within ninety (90) days of receipt of an administrative complaint or
State administrative agency determination where there is sufficient
evidence of noncompliance.
(7) To the maximum extent feasible, the Director will make use of the
agreements between agencies as provided for in 51.69 of this subpart in
order to facilitate compliance with the provisions of this subpart.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.63 Notification to the complainant.
Upon written request, the complainant shall be advised of the status
of the investigation or other proceeding undertaken in response to the
complaint. Within ten (10) days after the Director issues a finding or
determination, or receives a holding, the Director shall notify the
complainant or the complainant's counsel.
31 CFR 51.64 Notification of noncompliance.
(a) Notification of noncompliance after a finding by the Director.
The Director shall issue a notice of noncompliance in writing to the
chief executive officer of the recipient government (and in the case of
a unit of local government, also the Governor of the State in which the
recipient government is located) within ten (10) days of making a
finding. The notice shall be to the effect that it is more likely than
not that the recipient government has failed to comply with the
provisions of this subpart. The notice shall further state that a
determination will be made within thirty (30) days after receipt of this
notice, and that within this period, the recipient government may enter
into a compliance agreement with the Director, present additional
evidence that demonstrates compliance with this subpart and/or proves by
clear and convincing evidence that the program or activity complained of
was not funded with entitlement funds. The Assistant Attorney General
for Civil Rights shall also be notified of the finding.
(b) Notification of noncompliance by the Director after receipt of a
holding. (1) Within ten (10) days of receipt of a holding, the Director
shall issue a notice of noncompliance to the chief executive officer of
the recipient government in writing (and in the case of a unit of local
government, to the Governor of the State in which the recipient
government is located).
(2) The notice shall state that the Office of Revenue Sharing is
required to adopt the holding as conclusive on the issue of
discrimination and that the recipient government is in noncompliance
with the provisions of this subpart. The notice may include the issues
beyond those contained in the holding. The notice shall state that
unless within thirty (30) days after receipt of this notice the
recipient government enters into a compliance agreement or proves by
clear and convincing evidence that the program or activity complained of
was not funded with entitlement funds, the Director shall issue a
determination that the recipient government has failed to comply with
the provisions of this subpart. The Assistant Attorney General for
Civil Rights shall also be notified of the holding.
(c) Effect of a Stay. An administrative proceeding based on a
holding shall be suspended to the extent that a stay is issued by a
court of competent jurisdiction with respect to the holding. The
suspension shall only affect those issues covered by the stay.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.65 Determination by the Director.
(a) Determination by the Director after a finding of discrimination.
(1) The Director shall, within thirty (30) days after the recipient
government's receipt of the notice of noncompliance, issue a
determination as to whether the recipient government has failed to
comply with this subpart to the chief executive officer of the recipient
government (and in the case of a unit of local government, the Governor
of the State in which the recipient government is located shall also be
notified). The Assistant Attorney General for Civil Rights shall also
be notified of the determination.
(2) Once a determination of noncompliance is received, a recipient
government shall have ten (10) days in which to enter into a compliance
agreement or request an administrative hearing. If a recipient
government fails to take either action within the 10 day period, the
Director shall immediately suspend the further payment of entitlement
funds to such recipient government. The suspension in effect shall
remain suspended until the recipient government enters into a compliance
agreement.
(b) Determination by the Director after notice of a holding. (1) The
Director shall, within thirty (30) days after the recipient government's
receipt of notifiction of noncompliance based on a holding, issue a
determination as to whether the recipient government is in compliance
with this subpart to the chief executive officer of the recipient
government (and in the case of a unit of local government, the Governor
of the State in which the recipient government is located shall also be
notified). The Assistant Attorney General for Civil Rights shall also
be notified of the determination.
(2) The determination of noncompliance shall adopt the holding of the
Federal or State Court or Federal administrative law judge as conslusive
on the issue of discrimination and give the recipient government ten
(10) days from receipt of the notification of the determination to enter
into a compliance agreement or request an administrative hearing. The
sole issue at the administrative hearing shall be whether the program or
activity complained of was funded by entitlement funds. If the
recipient government fails to take either action within the 10-day
period, the Director shall immediately suspend the further payment of
entitlement funds to such government.
(3) If the holding on which the determination is based is reversed by
an appellate tribunal, or by agency review in the case of the holding of
a Federal administrative law judge, the Director shall discontinue the
administrative action begun as a result of the holding. Any suspension
of entitlement funds resulting from the determination shall also be
discontinued and those funds paid to the recipient government as quickly
as possible.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.66 Compliance agreements.
(a) In matters where the ORS was not a party to the proceeding. For
purposes of this subpart a compliance agreement includes an agreement in
writing between the Federal or State agency or official responsible for
prosecuting the claim (including the Attorney General of the United
States) and the chief executive officer of the recipient government
against whom the noncompliance with this subpart is alleged. Such
compliance agreement may take the form of a consent decree to be entered
in the proceedings before a court of record or to be entered by a
Federal administrative law judge having jurisdiction over the
proceedings. Counsel of record representing the chief executive officer
of the recipient government may initiate or negotiate the compliance
agreement on behalf of the chief executive officer of the recipient
government. However, in each case the Director shall, through counsel
or representative, approve or reject the compliance agreement. The
Director may reject the compliance agreement if it is determined that
the agreement has not adequately remedied the discrimination.
(b) In matters involving a holding. Where the Director acts on the
basis of a holding, the remedial order of the Court or Federal
administrative law judge shall constitute the basis of the compliance
agreement to be entered into with the Director: Provided, however, That
the lack of a remedial order does not affect the requirement that a
recipient government enter into a compliance agreement with the Director
within the time limits set forth in section 6717(b) of the Act and
51.64 and 51.65 of this subpart. Any agreement entered into prior to
issuance of such remedial order may be appropriately modified when the
order is entered.
(c) In matters between the Director and a recipient government. In
those instances where a compliance agreement is negotiated between the
Director and the chief executive officer of the recipient government,
the agreement shall be one document signed by the parties containing the
following:
(1) A statement of all matters that constitute the failure of the
recipient government to comply with the requirements of this subpart;
(2) The terms and conditions with which the recipient government has
agreed to comply in order to achieve compliance with the requirements of
this subpart. Such terms and conditions may include the payment of
restitution to persons injured by the failure of the recipient
government to comply with any provisions of this subpart; and
(3) The signatures of the Director and the chief executive officer of
the recipient government concerned.
(d) Monitoring of compliance agreement. The Director shall monitor
compliance by recipient governments with the compliance agreement. As
part of the monitoring process, the Director may require from recipient
governments periodic reports which demonstrate continued compliance.
(e) Effect of violation of compliance agreement. (1) If the
recipient government fails to comply with the obligations stipulated in
this agreement, the Director shall issue a determination of
noncompliance under section 6717(c) of the Act.
(2) The Director shall suspend the payment of entitlement funds to a
recipient government ten (10) days after its receipt of the
determination of noncompliance, unless such government either achieves
compliance with the provisions of the compliance agreement or requests
an administrative hearing. At any such hearing, the issues shall be
limited to whether or not the recipient government has acted in
compliance with the agreement.
(f) Notification to complainants of compliance agreement. Within
fifteen (15) days after the execution of a compliance agreement (or, in
the case of an agreement executed under paragraph (a) of this section,
upon the approval of the Director if later than fifteen (15) days) the
Director shall submit a copy of such agreement to the complainant(s).
The submission of a copy of the compliance agreement to counsel of
record (if any) for the complainants shall meet the requirements of this
paragraph.
31 CFR 51.67 Resumption of suspended entitlement payments.
The payment of entitlement funds, to a recipient government to which
such payment has been suspended, shall be resumed when:
(a) The recipient government enters into a compliance agreement that
satisfies the Director that the recipient government will comply with
the provisions in this subpart.
(b) The administrative law judge, who made a preliminary finding
under section 6717(d) of the Act, holds that the recipient government is
in compliance with the provisions of this subpart; or
(c) The recipient government complies fully with the remedial order
of a court or a Federal administrative law judge if the order covers all
matters raised by the Director in the notice of noncompliance based on a
holding to the recipient government; or
(d) After a rehearing or similar adjudicative proceedings a court or
an administrative law judge which originally held that the recipient
government had failed to comply with the provisions of this subpart,
subsequently holds that the recipient government did not so fail to
comply; or
(e) An appellate court reverses the findings of discrimination by a
lower court or administrative law judge upon the basis of which the
Director suspended the payment of entitlement funds.
31 CFR 51.68 Exhaustion of administrative remedies.
For purposes of bringing a private civil action pursuant to section
6721 of the Act a complainant shall be deemed to have exhausted the
administrative remedies upon the expiration of ninety (90) days from the
date the administrative complaint was filed with the Director, where the
Director:
(a) Issues a determination that the recipient government against whom
the complaint was filed is in compliance with the provisions of this
subpart; or
(b) Fails to make a determination on such complaint.
31 CFR 51.69 Agreements between agencies.
(a) Purpose of cooperative agreements. The Director shall endeavor
to enter into cooperative agreements with officials of other departments
and agencies of the Federal government, or officials of State agencies
(which have concurrent jurisdiction) to effectuate the purposes of this
subpart, including the achievement of effective coordination within the
executive branch in the implementation of Title VI and Title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000d, 2000e), the Civil Rights Act
of 1968, the Rehabilitation Act of 1973, and the Age Discrimination Act
of 1975.
(b) Content of cooperative agreements. The agreements between the
Director and other agencies or officials shall describe the cooperative
efforts to be undertaken, which may include, but need not be limited to:
(1) Sharing of resources during investigations and compliance reviews
(either by having joint investigations or having one agency do an
investigation for both);
(2) Cooperation during compliance activities including the issuance
of findings or determinations (including the adopting of other agency's
findings or determinations where practical);
(3) Cooperation during administrative hearings including joint
participation and sharing of resources.
(4) Deferral of agency action where one agency has begun compliance
activities on the same complaint or set of circumstances and provision
for resumption of action where the agency deferred to does not act in a
timely manner;
(5) Sharing of information, including data, records and investigative
and other files, computer printouts, lists and status reports on
complaints received;
(6) Identification of liaison personnel and the establishment of
periodic meetings to discuss common substantive and procedural problems;
(7) Protecting the confidentiality of information shared;
(8) Providing for notification of formal administrative actions
instituted against jointly covered recipients and of the results of such
actions, particularly those that may be classified as holdings; and
(9) The establishment of lead agencies (in those areas in which lead
agencies have not already been designated by statute or executive order)
so that the designated lead agency will provide policy guidance in the
area where two or more agencies share concurrent jurisdiction.
31 CFR 51.70 Jurisdiction over property.
(a) In general. The Director shall have jurisdiction over any
recipient government for purposes of this subpart for as long as that
recipient government retains ownership or possession of any real or
personal property or any interest therein, which was purchased in whole
or in part with entitlement funds. Further, if such property is
transferred to a secondary recipient or other party, the Director will
retain jurisdiction over the recipient government for purposes of this
subpart for as long as the property is used to provide benefits similar
to those which were provided by the property before the transfer.
(b) Definitions. For the purposes of this section:
(1) Real property includes land, structures upon land and fixtures
attached to land, and buildings or structures which cannot be removed
without damage to the fixtures, buildings or structures.
(2) Personal property includes, at the least, non-expandable tangible
property having a useful life of more than one year and an acquisition
cost of $1,000 or more per unit of property.
(3) The transfer of property means the passage of the property to a
secondary recipient, or to any other person, firm or agency.
(c) Use of property to provide similar benefits. For the purposes of
this section the clause in paragraph (a) of this section ''so long as
the property is used to provide benefits similar to those provided by
the property before the transfer'' means the primary use or function of
the property and not the specific or particular use of the property in
the program or activity for which originally acquired.
(d) Record keeping requirements. Recipient governments shall
maintain a separate record of real property and of tangible personal
property having a value in excess of $1,000. Such records shall set
forth the date of purchase, date of disposal or transfer and the
transferee of the property. Upon outright sale, discard, or trade of
such property the provisions of this section shall no longer be
applicable.
(Approved by the Office of Management and Budget under control number
1505-0038)
31 CFR 51.70 Subpart F -- Fiscal Procedures and Auditing
31 CFR 51.100 Definitions.
Unless the context requires otherwise, as used in this subpart, the
term:
(a) Compliance audit means the review of the documentation concerning
a recipient government's expenditure of entitlement funds to determine
that those funds have been expended in compliance with the provisions of
the Act and regulations.
(b) Auditor's report on the study and evaluation of the internal
accounting control means the report as required by the ''Examination and
Evaluation (Field Work) and Reporting Standards for Financial and
Compliance Audits'' as set forth in the Standards For Audit of
Governmental Organizations, Programs, Activities, and Functions issued
by the Comptroller General of the United States.
(c) Financial audit means the examination of the financial statements
of all funds of a recipient government in accordance with generally
accepted government auditing standards.
(d) Financial statements means those statements which:
(1) Show the financial operations for a specific period of time, and
(2) If appropriate, present the financial position as of the end of
that fiscal period, and
(3) Present the footnotes required for adequate disclosure.
(e) Generally accepted government auditing standards means those
auditing standards set forth in the financial and compliance element of
the Standards for Audit of Governmental Organizations, Programs,
Activities, and Functions, issued in 1981 by the Comptroller General of
the United States, or a subsequent edition of the publication.
Reference should be made to the above mentioned publication for
additional standards and requirements over the generally accepted
auditing standards as pronounced by the American Institute of Certified
Public Accountants in its Statement on Auditing Standards.
(f) Independent audit means an audit conducted in a manner consistent
with the qualifications and independence requirements specified in the
Standards for Audit of Governmental Organizations, Programs, Activities,
and Functions, issued by the Comptroller General of the United States.
(g) Single Audit Act means the application of uniform audit
requirements for State and local governments as provided for by the
Single Audit Act of 1984, Pub. L. 98-502 (31 U.S.C. 7501-07) and the
implementing OMB Circular A-128, which appears as Appendix A to this
subpart.
(50 FR 3455, Jan. 24, 1985, as amended at 50 FR 35073, Aug. 28, 1985)
31 CFR 51.101 Procedures applicable to the use of funds.
A recipient government which receives entitlement funds under the Act
shall:
(a) Establish a trust fund and deposit all entitlement funds received
and all interest earned thereon in that trust fund. The trust fund may
be established on the books and records as a separate set of accounts,
or a separate bank account may be established.
(b) Use, obligate, or appropriate entitlement funds before October 1,
1987. The use, obligation or appropriation of entitlement funds shall
be consistent with State or local law requiring a legislative enactment
in ordinance or resolution form. Any interest earned on such funds
while in the trust fund shall be used, obligated, or appropriated before
October 1, 1987. An extension of time in which to act on the funds, or
interest accrued, shall be obtained by application to the Director. The
application will set forth the facts and circumstances supporting the
need for more time and the amount of additional time requested. The
Director may grant such extensions of time which appear necessary or
appropriate.
(c) Maintain its fiscal accounts in a manner sufficient to:
(1) Permit the reports required by the Director to be prepared
therefrom, and
(2) Permit the tracing of entitlement funds to a level of expenditure
adequate to establish that the funds have not been used in violation of
the restrictions and prohibitions of this part. Tracing requires that
vouchers in support of expenditures funded by the Act shall be
identified. Identification can be made in any one of three ways as
follows:
(i) Maintain a separate set of fund accounts; or
(ii) Maintain a separate bank account; or
(iii) Keep a memorandum record of the voucher numbers and amounts of
the expenditures funded by entitlements received under the Act.
The accounting for entitlement funds shall, at a minimum, employ the
same fiscal accounting and internal audit procedures as are used with
respect to the expenditures from revenues derived from the recipient
government's own sources.
(d) Provide to the Director and to the Comptroller General of the
United States, on reasonable notice, access to and the right to examine
such books, documents, papers or records as the Director may reasonably
require for the purpose of reviewing compliance with the Act and the
regulations of this part, or, in the case of the Comptroller General, as
the Comptroller General may reasonably require for the purpose of
reviewing compliance and operations under the Act.
(Information collection requirements in paragraphs (c)(2)(iii) and
(d) approved by the Office of Management and Budget under control number
1505-0038)
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985, as amended at
51 FR 26884, July 28, 1986)
31 CFR 51.102 Auditing and evaluation.
(a) Audit requirement. (1) Each unit of local government which
receives entitlement funds beginning after October 1, 1983, shall have
an independent audit of its financial statements conducted for the
purpose of determining compliance with the provisions of the Act, in
accordance with generally accepted government auditing standards as
issued by the Comptroller General of the United States. The audit shall
be conducted at least as often as indicated in paragraph (a)(2) of this
section. The compliance aspects of the audit and the report of
auditor's study and evaluation of the internal accounting controls must
be performed for the same year in which the financial audit is performed
on the funds into which Revenue Sharing entitlement payments are
deposited.
(2) A government which receives entitlement funds which are equal to
or in excess of $25,000 but less than $100,000 in each of three
consecutive fiscal years, shall have an audit made in accordance with
paragraph (a)(1) of this section not less often than once every three
years. The required audit would be conducted for any one of three
consecutive years in which the entitlement funds were received.
(3) A government which receives $100,000 or more in a fiscal year
shall have an audit made for each such fiscal year in accordance with
the requirements of the Single Audit Act under 51.105 except that if
the government establishes to the satisfaction of the Director that it
is required by its constitution or statutes, administrative rules,
regulations, guidelines, standards, or policies to conduct its audits on
a biennial basis, then such audits may be made on a biennial basis.
Audits conducted on a biennial basis shall cover both years within the
biennial period. The OMB Compliance Supplement may be used by auditors
as a guide in the performance of the compliance aspects of audits
required under this section.
(4) Audits conducted to comply with the provisions of paragraph
(a)(2) of this section shall be submitted to the Director within thirty
(30) days after completion of the audit, but no later than one year from
the end of the fiscal year audited.
(b) Election by recipient government. (1) A recipient government
that receives entitlement funds which are equal to or in excess of
$25,000 but less than $100,000 in any fiscal year shall have the option
of:
(i) Having an audit made for such fiscal year in accordance with the
requirements of the Single Audit Act under 51.105 of this subpart; or
(ii) Complying with the requirements of 51.102(a)(2) of this
subpart.
(2) A recipient government may elect to have the requirements of
paragraph (a) of this section not applicable to that government upon
certifying to the Director that the audits are conducted in compliance
with State or local law and meet the following requirements:
(i) The performance of the audits of the financial statements are
independent as defined in 51.100(f);
(ii) The audits of the recipient governments are conducted in
accordance with generally accepted government auditing standards issued
by the Comptroller General of the United States;
(iii) The audits will be conducted at least as often as would be
required by paragraph (a)(2) of this section; and
(iv) A compliance audit and an auditor's report on the study and
evaluation of the internal accounting controls, as well as a financial
audit are conducted.
(c) Series of audits. (1) For local governments which receive at
least $25,000 of entitlement funds, but not more than $100,000, in each
of three consecutive fiscal years, a series of independent audits may be
used as an alternative to the provisions of paragraph (a) of this
section if they are conducted in accordance with generally accepted
government auditing standards, over a period not to exceed three fiscal
years, and cover, in the aggregate, all of the accounts of such
recipient governments. When electing a series of audits, a recipient
government must perform the compliance audit and the auditor's report on
the study and evaluation of the internal accounting controls for the
same fiscal year in which the financial audit is performed on the funds
into which entitlement funds are deposited. The financial audit reports
will be considered in an aggregate as one report for the purpose of
determining whether the recipient government has complied with the
provisions of this part.
(2) For local governments which receive more than $100,000 of
entitlement funds annually and are required to have an audit for each
such year, the series may be comprised of several separate financial
reports which in aggregate will cover all of the accounts of the
recipient government.
(Information collection requirements in paragraph (a)(4) approved by
the Office of Management and Budget under control number 1505-0038, and
in paragraph (b)(2)(iv) under control number 1505-0086)
(50 FR 3455, Jan. 24, 1985; 50 FR 8611 and 8612, Mar. 4, 1985, as
amended at 50 FR 35073, Aug. 28, 1985)
31 CFR 51.103 Waiver of audit requirements.
(a) Basis for granting waiver. The Director may waive the provisions
of 51.102(a)(2) for any recipient government which makes application
for such a waiver for any fiscal period upon determining that:
(1) The accounts of such government are not auditable and the
government is making substantial progress toward making its accounts
auditable; or
(2) The government has been audited by a State audit agency which
does not follow generally accepted government auditing standards or
which is not independent as defined in 51.100 (e) and (f) respectively,
and
which is demonstrating progress toward taking the necessary
corrective action.
(b) Procedure for requesting waiver. (1) The chief executive officer
of the recipient government shall apply to the Director in writing for
the waiver and provide the following information:
(i) If the waiver is requested due to unauditability of government
financial accounts, an assurance that in the course of determining
compliance with 51.102(a)(2), the independent auditor rendered an
opinion that part or all of the financial accounts are not auditable.
The waiver request shall further clearly set forth the arrangements
which have been made or steps taken toward making such financial
accounts auditable.
(ii) If the waiver is requested pursuant to paragraph (a)(2), an
assurance that the State audit agency is demonstrating progress toward
performing audits in accordance with generally accepted government
auditing standards or becoming independent. The waiver request shall
further clearly set forth the arrangements which have been made or steps
taken toward establishing the use of generally accepted government
auditing standards or achieving independence.
(2) The Director shall determine whether the recipient government or
the State audit agency is making substantial progress towards taking the
necessary corrective action.
(Information collection requirements in paragraph (b)(1) approved by
the Office of Management and Budget under control number 1505-0086)
(50 FR 35073, Aug. 28, 1985; 50 FR 36055, Sept. 5, 1985)
31 CFR 51.104 Audits of secondary recipients.
(a) In general. Each local government which provides $25,000 or more
of Federal financial assistance to a secondary recipient (subrecipient)
in any fiscal year shall be responsible for the audit of any entitlement
funds transferred to the secondary recipient.
(b) Responsibility of primary recipient government. The primary
recipient government shall:
(1) Determine whether the secondary recipient has met the audit
requirements of 51.102(a) or OMB's Circular A-110 for universities,
hospitals or other nonprofit organizations;
(2) Determine whether the secondary recipient has expended the funds
provided in accordance with the Act and its implementing regulations.
This may be accomplished by reviewing the audit report of the secondary
recipient or through other means (e.g., program reviews) if the
secondary recipient has not yet conducted such an audit;
(3) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instances of noncompliance
with the Act and regulations;
(4) Consider whether secondary recipient audits necessitate
adjustment of the primary recipient's own records; and
(5) Require each secondary recipient to permit independent auditors
to have access to the records and financial statements as necessary to
comply with this section.
(50 FR 35074, Aug. 28, 1985)
31 CFR 51.105 Reliance upon audits under other Federal laws.
The Single Audit Act requires all States and local governments
receiving $100,000 or more in Federal financial assistance for any of
its fiscal years beginning after December 31, 1984, to conduct an annual
audit made in accordance with the requirements of the Single Audit Act
unless the State or local government is permitted to conduct its audits
biennially by reason of administrative rules, regulations, guidelines,
standards or policies. However, after December 31, 1986, any State or
local government that conducts its audits biennially must conduct such
audits annually unless such State or local government codifies a
requirement for biennial audits in its constitution or statutes before
January 1, 1987. Audits conducted on a biennial basis shall cover both
years within the biennial period. An audit performed under the Single
Audit Act shall be submitted to the Office of Revenue Sharing within
thirty (30) days after completion of the audit, but no later than one
year from the end of the fiscal year audited.
(50 FR 35074, Aug. 28, 1985)
31 CFR 51.106 Audit opinions.
(a) In general. Opinions made with respect to audits must be
rendered as a part of the audit report and shall be in accordance with
the opinion in general use for attesting to financial statements, as
defined in 51.100(c).
(b) Nature of opinions. Audit opinions may be unqualified,
qualified, or adverse. Disclaimers of opinion will be considered on an
individual case-by-case basis to determine acceptability. Appropriate
opinions for special reports should be expressed where cash basis
statements have been prepared.
31 CFR 51.107 Scope of audits.
(a) In general. (1) Audits made pursuant to 51.102(a) shall include
all financial statements prepared from accounts which the recipient
government is required to maintain pursuant to State or local law.
(2) Audits of such financial statements made pursuant to 51.102(a)
are required whether the funds being audited belong to the recipient
government or whether the recipient government is holding such funds in
a trust fund or other account which belongs to another political entity.
(3) Audits pursuant to 51.102(a)(2) for which reporting is said to
be in accordance with generally accepted accounting principles (GAAP)
must be guided in defining the entity by the National Council on
Governmental Accounting's Statements 3 and 7 and Interpretation 7.
(These pronouncements are considered as continuing in force by the
recently established Governmental Accounting Standards Board, which is
the successor organization to the National Council on Governmental
Accounting.) Those governments whose financial statements are prepared
in accordance with a comprehensive basis of accounting other than GAAP
should continue to use the definition provided by the Bureau of the
Census which includes a unit as part of the entity if the Bureau has
classified the unit as being dependent for general statistical purposes
upon the recipient government. The classification of governments is
contained in ''The Census of Governments, Governmental Organization
(Vol. 1),'' published by the Bureau of the Census every five years and
updated on a current basis to reflect significant changes occurring
between censuses.
(4) The audit shall be of the financial and compliance type described
in the Standards for Audit of Governmental Organizations, Programs,
Activities, and Functions as issued by the Comptroller General of the
United States.
(b) Verification of fiscal data reported to the Bureau of the Census.
The scope of the audit shall also include a verification of the
recipient government's fiscal data as reported by it to the Bureau of
the Census.
(50 FR 3455, Jan. 24, 1985, as amended at 50 FR 35074, Aug. 28, 1985)
31 CFR 51.108 Public inspection, retention and submission of audit
reports and workpapers.
(a) Public inspection. A copy of the audit report under
51.102(a)(2) and 51.105 shall be made available to any person for a
period of three years. Within thirty (30) days after the audit is
completed and received by the recipient, the report shall be placed at
the principal office of the recipient government for public inspection
during normal business hours. Where feasible, local public libraries
and other public buildings should be used also. If the recipient
government has no principal office, the audit report shall be made
available for public inspection at a public place or places within the
political boundaries of the recipient government to satisfy the
requirements of this subsection.
(b) Notice of availability of audit report. The recipient government
shall publish a notice which indicates that the audit report is
available for public inspection within thirty (30) days of completion of
the audit. Such notice shall specify the location(s) and hours during
which the audit report is available to the public. Publication of the
notice shall be made in a newspaper of general circulation serving the
recipient government's geographic area. Where newspaper publication is
impractical or infeasible, alternative methods of publication shall be
used as provided in 51.13 of this part.
(c) Submission of audit reports. The Director may require the chief
executive officer of a recipient government to submit a copy of its
audit report and other information as may be requested by the Director
to determine compliance with the provisions of this subpart.
(d) Retention of audit workpapers. Audit workpapers and related
reports shall be retained for three years from the date of the audit
report described in paragraph (a), unless the auditor is notified in
writing by the Director to extend the retention period. Audit
workpapers shall be made available upon request to the Director and the
Comptroller General or to their representatives at the completion of the
audit. Recipient governments whose audits are performed by independent
public accountants, not in their employ, may meet the requirement of
this section by informing the firm or individual of this requirement and
encouraging them to comply.
(Information collection requirements in paragraphs (a) and (b)
approved by the Office of Management and Budget under control number
1505-0086 and in paragraphs (c) and (d) under control number 1505-0038)
(50 FR 3455, Jan. 24, 1985, as amended at 50 FR 35074, Aug. 28, 1985)
31 CFR 51.109 Procedures for effecting compliance.
(a) Compliance with substantive provisions. If a recipient
government fails to comply with the requirements of this subpart, the
Director may implement the procedures for effecting compliance contained
in 51.3 (a) through (d) of subpart A.
(b) Compliance with reporting requirements. If a recipient
government fails to comply with the reporting requirements of this
subpart, the Director may implement the delay of payment and/or
constructive waiver provisions of 51.3(e) of subpart A and 51.25(b) of
subpart C of this part.
(c) Compliance with reporting requirements under the Single Audit
Act. Pursuant to section 7504 of the Single Audit Act, if a recipient
government fails to comply with the audit reporting requirements of
51.102(a)(3), enforcement shall be by the cognizant agency that has been
designated by the Office of Management and Budget. If the Office of
Revenue Sharing is not the cognizant agency designated by the Office of
Management and Budget, the Director shall cooperate with the agency that
has been so designated by the Office of Management and Budget.
(50 FR 3455, Jan. 24, 1985, as amended at 50 FR 35074, Aug. 28, 1985)
31 CFR 51.109 Pt. 51 Subpt. F, App. A
31 CFR 51.109 Appendix A to Subpart F -- OMB Circular A-128, Audits of
State and Local Governments
To the Heads of Executive Departments and Establishments.
Subject: Audits of State and Local Governments.
1. Purpose. This Circular is issued pursuant to the Single Audit Act
of 1984, Pub. L. 98-502. It establishes audit requirements for State
and local governments that receive Federal aid, and defines Federal
responsibilities for implementing and monitoring those requirements.
2. Supersession. The Circular supersedes Attachment P, ''Audit
Requirements,'' of Circular A-102, ''Uniform requirements for grants to
State and local governments.''
3. Background. The Single Audit Act builds upon earlier efforts to
improve audits of Federal aid programs. The Act requires State or local
governments that receive $100,000 or more a year in Federal funds to
have an audit made for that year. Section 7505 of the Act requires the
Director of the Office of Management and Budget to prescribe policies,
procedures and guidelines to implement the Act. It specifies that the
Director shall designate ''cognizant'' Federal agencies, determine
criteria for making appropriate charges to Federal programs for the cost
of audits, and provide procedures to assure that small firms or firms
owned and controlled by disadvantaged individuals have the opportunity
to participate in contracts for single audits.
4. Policy. The Single Audit Act requires the following:
a. State or local governments that receive $100,000 or more a year in
Federal financial assistance shall have an audit made in accordance with
this Circular.
b. State or local governments that receive between $25,000 and
$100,000 a year shall have an audit made in accordance with this
Circular, or in accordance with Federal laws and regulations governing
the programs they participate in.
c. State or local governments that receive less than $25,000 a year
shall be exempt from compliance with the Act and other Federal audit
requirements. These State and local governments shall be governed by
audit requirements prescribed by State or local law or regulation.
d. Nothing in this paragraph exempts State or local governments from
maintaining records of Federal financial assistance or from providing
access to such records to Federal agencies, as provided for in Federal
law or in Circular A-102, ''Uniform requirements for grants to State or
local governments.''
5. Definitions. For the purposes of this Circular the following
definitions from the Single Audit Act apply:
a. ''Cognizant agency'' means the Federal agency assigned by the
Office of Management and Budget to carry out the responsibilities
described in paragraph 11 of this Circular.
b. ''Federal financial assistance'' means assistance provided by a
Federal agency in the form of grants, contracts, cooperative agreements,
loans, loan guarantees, property, interest subsidies, insurance, or
direct appropriations, but does not include direct Federal cash
assistance to individuals. It includes awards received directly from
Federal agencies, or indirectly through other units of State and local
governments.
c. ''Federal agency'' has the same meaning as the term ''agency'' in
section 551(1) of Title 5, United States Code.
d. ''Generally accepted accounting principles'' has the meaning
specified in the generally accepted government auditing standards.
e. ''Generally accepted government auditing standards'' means the
Standards For Audit of Government Organizations, Programs, Activities,
and Functions, developed by the Comptroller General, dated Febuary 27,
1981.
f. ''Independent auditor'' means:
(1) A State or local government auditor who meets the independence
standards specified in generally accepted government auditing standards;
or
(2) A public accountant who meets such independence standards.
g. ''Internal controls'' means the plan of organization and methods
and procedures adopted by management to ensure that:
(1) Resource use is consistent with laws, regulations, and policies;
(2) Resources are safeguarded against waste, loss, and misuse; and
(3) Reliable data are obtained, maintained, and fairly disclosed in
reports.
h. ''Indian tribe'' means any Indian tribe, band, nations, or other
organized group or community, including any Alaskan Native village or
regional or village corporations (as defined in, or established under,
the Alaskan Native Claims Settlement Act) that is recognized by the
United States as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.
i. ''Local government'' means any unit of local government within a
State, including a county, a borough, municipality, city, town,
township, parish, local public authority, special district, school
district, intrastate district, council of governments, and any other
instrumentality of local government.
j. ''Major Federal Assistance Program,'' as defined by Pub. L.
98-502, is described in the Attachment to this Circular.
k. ''Public accountants'' means those individuals who meet the
qualification standards included in generally accepted government
auditing standards for personnel performing government audits.
l. ''State'' means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, and
the Trust Territory of the Pacific Islands, any instrumentality thereof,
and any multi-State, regional, or interstate entity that has
governmental functions and any Indian tribe.
m. ''Subrecipient'' means any person or government department,
agency, or establishment that receives Federal financial assistance to
carry out a program through a State or local government, but does not
include an individual that is a beneficiary of such a program. A
subrecipient may also be a direct recipient of Federal financial
assistance.
6. Scope of audit. The Single Audit Act provides that:
a. The audit shall be made by an independent auditor in accordance
with generally accepted government auditing standards covering financial
and compliance audits.
b. The audit shall cover the entire operations of a State or local
government or, at the option of that government, it may cover
departments, agencies or establishments that received, expended, or
otherwise administered Federal financial assistance during the year.
However, if a State or local government receives $25,000 or more in
General Revenue Sharing Funds in a fiscal year, it shall have an audit
of its entire operations. A series of audits of individual departments,
agencies, and establishments for the same fiscal year may be considered
a single audit.
c. Public hospitals and public colleges and universities may be
excluded from State and local audits and the requirements of this
Circular. However, if such entities are excluded, audits of these
entities shall be made in accordance with statutory requirements and the
provisions of Circular A-110, ''Uniform requirements for grants to
universities, hospitals, and other nonprofit organizations.''
d. The auditor shall determine whether:
(1) The financial statements of the government, department, agency or
establishment present fairly its financial position and the results of
its financial operations in accordance with generally accepted
accounting principles;
(2) The organization has internal accounting and other control
systems to provide reasonable assurance that it is managing Federal
financial assistance programs in compliance with applicable laws and
regulations; and
(3) The organization has complied with laws and regulations that may
have material effect on its financial statements and on each major
Federal assistance program.
7. Frequency of audit. Audits shall be made annually unless the
State or local government has, by January 1, 1987, a constitutional or
statutory requirement for less frequent audits. For those governments,
the cognizant agency shall permit biennial audits, covering both years,
if the government so requests. It shall also honor requests for
biennial audits by governments that have an administrative policy
calling for audits less frequent than annual, but only for fiscal years
beginning before January 1, 1987.
8. Internal control and compliance reviews. The Single Audit Act
requires that the independent auditor determine and report on whether
the organization has internal control systems to provide reasonable
assurance that it is managing Federal assistance programs in compliance
with applicable laws and regulations.
a. Internal control review. In order to provide this assurance the
auditor must make a study and evaluation of internal control systems
used in administering Federal assistance programs. The study and
evaluation must be made whether or not the auditor intends to place
reliance on such systems. As part of this review, the auditor shall:
(1) Test whether these internal control systems are functioning in
accordance with prescribed procedures.
(2) Examine the recipient's system for monitoring subrecipients and
obtaining and acting on subrecipient audit reports.
b. Compliance review. The law also requires the auditor to determine
whether the organization has complied with laws and regulations that may
have a material effect on each major Federal assistance program.
(1) In order to determine which major programs are to be tested for
compliance, State and local governments shall identify in their accounts
all Federal funds received and expended and the programs under which
they were received. This shall include funds received directly from
Federal agencies and through other State and local governments.
(2) The review must include the selection and testing of a
representative number of charges from each major Federal assistance
program. The selection and testing of transactions shall be based on
the auditor's professional judgment considering such factors as the
amount of expeditures for the program and the individual awards; the
newness of the program or changes in its conditions; prior experience
with the program, particularly as revealed in audits and other
evaluations (e.g., inspections, program reviews); the extent to which
the program is carried out through subrecipients; the extent to which
the program contracts for goods or services; the level to which the
program is already subject to program reviews or other forms of
independent oversight; the adequacy of the controls for ensuring
compliance; the expectation of adherence or lack of adherence to the
applicable laws and regulations; and the potential impact of adverse
findings.
(a) In making the test of transactions, the auditor shall determine
whether:
-- The amounts reported as expenditures were for allowable
services, and
-- The records show that those who received services or benefits
were eligible to receive them.
(b) In addition to transaction testing, the auditor shall determine
whether:
-- Matching requirements, levels of effort and earmarking
limitations were met,
-- Federal financial reports and claims for advances and
reimbursements contain information that is supported by the books and
records from which the basic financial statements have been prepared,
and
-- Amounts claimed or used for matching were determined in
accordance with OMB Circular A-87, ''Cost principles for State and local
governments,'' and Attachment F of Circular A-102, ''Uniform
requirements for grants to State and local governments.''
(c) The principal compliance requirements of the largest Federal aid
programs may be ascertained by referring to the Compliance Supplement
for Single Audits of State and Local Governments, issued by OMB and
available from the Government Printing Office. For those programs not
covered in the Compliance Supplement, the auditor may ascertain
compliance requirements by researching the statutes, regulations, and
agreements governing individual programs.
(3) Transactions related to other Federal assistance programs that
are selected in connection with examinations of financial statements and
evaluations of internal controls shall be tested for compliance with
Federal laws and regulations that apply to such transactions.
9. Subrecipients. State or local governments that receive Federal
financial assistance and provide $25,000 or more of it in a fiscal year
to a subrecipient shall:
a. Determine whether State or local subrecipients have met the audit
requirements of this Circular and whether subrecipients covered by
Circular A-110, ''Uniform requirements for grants to universities,
hospitals, and other nonprofit organizations,'' have met that
requirement;
b. Determine whether the subrecipient spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may
be accomplished by reviewing an audit of the subrecipient made in
accordance with this Circular, Circular A-110, or through other means
(e.g., program reviews) if the subrecipient has not yet had such an
audit;
c. Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instances of noncompliance
with Federal laws and regulations;
d. Consider whether subrecipient audits necessitate adjustment of the
recipient's own records; and
e. Require each subrecipient to permit independent auditors to have
access to the records and financial statements as necessary to comply
with this Circular.
10. Relation to other audit requirements. The Single Audit Act
provides that an audit made in accordance with this Circular shall be in
lieu of any financial or financial compliance audit required under
individual Federal assistance programs. To the extent that a single
audit provides Federal agencies with information and assurances they
need to carry out their overall responsibilities, they shall rely upon
and use such information. However, a Federal agency shall make any
additional audits which are necessary to carry out its responsibilities
under Federal law and regulation. Any additional Federal audit effort
shall be planned and carried out in such a way as to avoid duplication.
a. The provisions of this Circular do not limit the authority of
Federal agencies to make, or contract for audits and evaluations of
Federal financial assistance programs, nor do they limit the authority
of any Federal agency Inspector General or other Federal audit official.
b. The provisions of this Circular do not authorize any State or
local government or subrecipient thereof to constrain Federal agencies,
in any manner, from carrying out additional audits.
c. A Federal agency that makes or contracts for audits in addition to
the audits made by recipients pursuant to this Circular shall,
consistent with other applicable laws and regulations, arrange for
funding the cost of such additional audits. Such additional audits
include economy and efficiency audits, program results audits, and
program evaluations.
11. Cognizant agency responsibilities. The Single Audit Act provides
for cognizant Federal agencies to oversee the implementation of this
Circular.
a. The Office of Management and Budget will assign cognizant agencies
for States and their subdivisions and larger local governments and their
subdivisions. Other Federal agencies may participate with an assigned
cognizant agency, in order to fulfill the cognizance responsibilities.
Smaller governments not assigned a cognizant agency will be under the
general oversight of the Federal agency that provides them the most
funds whether directly or indirectly.
b. A cognizant agency shall have the following responsibilities:
(1) Ensure that audits are made and reports are received in a timely
manner and in accordance with the requirements of this Circular.
(2) Provide technical advice and liaison to State and local
governments and independent auditors.
(3) Obtain or make quality control reviews of selected audits made by
non-Federal audit organizations, and provide the results, when
appropriate, to other interested organizations.
(4) Promptly inform other affected Federal agencies and appropriate
Federal law enforcement officials of any reported illegal acts or
irregularities. They should also inform State or local law enforcement
and prosecuting authorities, if not advised by the recipient, of any
violation of law within their jurisdiction.
(5) Advise the recipient of audits that have been found not to have
met the requirements set forth in this Circular. In such instances, the
recipient will be expected to work with the auditor to take corrective
action. If corrective action is not taken, the cognizant agency shall
notify the recipient and Federal awarding agencies of the facts and make
recommendations for followup action. Major inadequacies or repetitive
substandard performance of independent auditors shall be referred to
appropriate professional bodies for disciplinary action.
(6) Coordinate, to the extent practicable, audits made by or for
Federal agencies that are in addition to the audits made pursuant to
this Circular; so that the additional audits build upon such audits.
(7) Oversee the resolution of audit findings that affect the programs
of more than one agency.
12. Illegal acts or irregularities. If the auditor becomes aware of
illegal acts or other irregularities, prompt notice shall be given to
recipient management officials above the level of involvement. (See
also paragraph 13(a)(3) below for the auditor's reporting
responsibilities.) The recipient, in turn, shall promptly notify the
cognizant agency of the illegal acts or irregularities and of proposed
and actual actions, if any. Illegal acts and irregularities include
such matters as conflicts of interest, falsification of records or
reports, and misappropriations of funds or other assets.
13. Audit Reports. Audit reports must be prepared at the completion
of the audit. Reports serve many needs of State and local governments
as well as meeting the requirements of the Single Audit Act.
a. The audit report shall state that the audit was made in accordance
with the provisions of this Circular. The report shall be made up of at
least:
(1) The auditor's report on financial statements and on a schedule of
Federal assistance; the financial statements; and a schedule of
Federal assistance, showing the total expenditures for each Federal
assistance program as identified in the Catalog of Federal Domestic
Assistance. Federal programs or grants that have not been assigned a
catalog number shall be identified under the caption ''other Federal
assistance.''
(2) The auditor's report on the study and evaluation of internal
control systems must identify the organization's significant internal
accounting controls, and those controls designed to provide reasonable
assurance that Federal programs are being managed in compliance with
laws and regulations. It must also identify the controls that were
evaluated, the controls that were not evaluated, and the material
weaknesses identified as a result of the evaluation.
(3) The auditor's report on compliance containing:
-- A statement of positive assurance with respect to those items
tested for compliance, including compliance with law and regulations
pertaining to financial reports and claims for advances and
reimbursements;
-- Negative assurance on those items not tested; -- A summary of
all instances of noncompliance; and -- An identification of total
amounts questioned, if any, for
each Federal assistance award, as a result of noncompliance.
b. The three parts of the audit report may be bound into a single
report, or presented at the same time as separate documents.
c. All fraud abuse, or illegal acts or indications of such acts,
including all questioned costs found as the result of these acts that
auditors become aware of, should normally be covered in a separate
written report submitted in accordance with paragraph 13f.
d. In addition to the audit report, the recipient shall provide
comments on the findings and recommendations in the report, including a
plan for corrective action taken or planned and comments on the status
of corrective action taken on prior findings. If corrective action is
not necessary, a statement describing the reason it is not should
accompany the audit report.
e. The reports shall be made available by the State or local
government for public inspection within 30 days after the completion of
the audit.
f. In accordance with generally accepted government audit standards,
reports shall be submitted by the auditor to the organization audited
and to those requiring or arranging for the audit. In addition, the
recipient shall submit copies of the reports to each Federal department
or agency that provided Federal assistance funds to the recipient.
Subrecipients shall submit copies to recipients that provided them
Federal assistance funds. The reports shall be sent within 30 days
after the completion of the audit, but no later than one year after the
end of the audit period unless a longer period is agreed to with the
cognizant agency.
g. Recipients of more than $100,000 in Federal funds shall submit one
copy of the audit report within 30 days after issuance to a central
clearinghouse to be designated by the Office of Management and Budget.
The clearinghouse will keep completed audits on file and follow up with
State and local governments that have not submitted required audit
reports.
h. Recipients shall keep audit reports on file for three years from
their issuance.
14. Audit Resolution. As provided in paragraph 11, the cognizant
agency shall be responsible for monitoring the resolution of audit
findings that affect the programs of more than one Federal agency.
Resolution of findings that relate to the programs of a single Federal
agency will be the responsibility of the recipient and that agency.
Alternate arrangements may be made on a case-by-case basis by agreement
among the agencies concerned.
Resolution shall be made within six months after receipt of the
report by the Federal departments and agencies. Corrective action
should proceed as rapidly as possible.
15. Audit workpapers and reports. Workpapers and reports shall be
retained for a minimum of three years from the date of the audit report,
unless the auditor is notified in writing by the cognizant agency to
extend the retention period. Audit workpapers shall be made available
upon request to the cognizant agency or its designee or the General
Accounting Office, at the completion of the audit.
16. Audit Costs. The cost of audits made in accordance with the
provisions of this Circular are allowable charges to Federal assistance
programs.
a. The charges may be considered a direct cost or an allocated
indirect cost, determined in accordance with the provision of Circular
A-87, ''Cost principles for State and local governments.''
b. Generally, the percentage of costs charged to Federal assistance
programs for a single audit shall not exceed the percentage that Federal
funds expended represent of total funds expended by the recipient during
the fiscal year. The percentage may be exceeded, however, if
appropriate documentation demonstrates higher actual cost.
17. Sanctions. The Single Audit Act provides that no cost may be
charged to Federal assistance programs for audits required by the Act
that are not made in accordance with this Circular. In cases of
continued inability or unwillingness to have a proper audit, Federal
agencies must consider other appropriate sanctions including:
-- Withholding a percentage of assistance payments until the
audit is completed satisfactorily,
-- Withholding or disallowing overhead costs, and -- Suspending
the Federal assistance agreement until the audit is
made.
18. Auditor Selection. In arranging for audit services State and
local governments shall follow the procurement standards prescribed by
Attachment O of Circular A-102, ''Uniform requirements for grants to
State and local governments.'' The standards provide that while
recipients are encouraged to enter into intergovernmental agreements for
audit and other services, analysis should be made to determine whether
it would be more economical to purchase the services from private firms.
In instances where use of such intergovernmental agreements are
required by State statutes (e.g., audit services) these statutes will
take precedence.
19. Small and Minority Audit Firms. Small audit firms and audit
firms owned and controlled by socially and economically disadvantaged
individuals shall have the maximum practicable opportunity to
participate in contracts awarded to fulfill the requirements of this
Circular. Recipients of Federal assistance shall take the following
steps to further this goal:
a. Assure that small audit firms and audit firms owned and controlled
by socially and economically disadvantaged individuals are used to the
fullest extent practicable.
b. Make information on forthcoming opportunities available and
arrange timeframes for the audit so as to encourage and facilitate
participation by small audit firms and audit firms owned and controlled
by socially and economically disadvantaged individuals.
c. Consider in the contract process whether firms competing for
larger audits intend to subcontract with small audit firms and audit
firms owned and controlled by socially and economically disadvantaged
individuals.
d. Encourage contracting with small audit firms or audit firms owned
and controlled by socially and economically disadvantaged individuals
which have traditionally audited government programs and, in such cases
where this is not possible, assure that these firms are given
consideration for audit subcontracting opportunities.
e. Encourage contracting with consortiums of small audit firms as
described in paragraph (a) above when a contract is too large for an
individual small audit firm or audit firm owned and controlled by
socially and economically disadvantaged individuals.
f. Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration in the solicitation
and utilization of small audit firms or audit firms owned and controlled
by socially and economically disadvantaged individuals.
20. Reporting. Each Federal agency will report to the Director of OMB
on or before March 1, 1987, and annually thereafter on the effectiveness
of State and local governments in carrying out the provisions of this
Circular. The report must identify each State or local government or
Indian tribe that, in the opinion of the agency, is failing to comply
with the Circular.
21. Regulations. Each Federal agency shall include the provisions of
this Circular in its regulations implementing the Single Audit Act.
22. Effective date. This Circular is effective upon publication and
shall apply to fiscal years of State and local governments that begin
after December 31, 1984. Earlier implementation is encouraged.
However, until it is implemented, the audit provisions of Attachment P
to Circular A-102 shall continue to be observed.
23. Inquiries. All questions or inquiries should be addressed to
Financial Management Division, Office of Management and Budget,
telephone number 202/395-3993.
24. Sunset review date. This Circular shall have an independent
policy review to ascertain its effectiveness three years from the date
of issuance.
David A. Stockman,
Director.
31 CFR 51.109 Attachment -- Circular A-128
31 CFR 51.109 Definition of Major Program as Provided in Pub. L.
98-502
Major Federal Assistance Program, for State and local governments
having Federal assistance expenditures between $100,000 and
$100,000,000, means any program for which Federal expenditures during
the applicable year exceed the larger of $300,000, or 3 percent of such
total expenditures.
Where total expenditures of Federal assistance exceed $100,000,000,
the following criteria apply:
(50 FR 35074, Aug. 28, 1985)
31 CFR 51.109 Subpart G -- Proceedings for Reduction in Entitlement, Withholding, or Suspension of Funds
31 CFR 51.200 Scope of subpart.
The regulations of this subpart govern the procedure and practice
requirements involving adjudication where the Act requires reasonable
notice and opportunity for a hearing. The adjudications covered in this
subpart include administrative hearings concerning violations of all
provisions of this part. Unless otherwise specified, the procedures
described herein apply to both hearings concerning the violation of the
provisions contained in subpart E and hearings concerning the violation
of the provisions contained in subparts, B, D and F.
(50 FR 3455, Jan. 24, 1985; 50 FR 8611, Mar. 4, 1985)
31 CFR 51.201 Liberal construction.
The regulations in this subpart shall be liberally construed to
secure just, expeditious, and efficient determination of the issues
presented. The Federal Rules of Civil Procedure for the District Courts
of the United States, where applicable, shall be a guide in any
situation not provided for or controlled by this subpart, but shall be
liberally construed or relaxed when necessary.
31 CFR 51.202 Reasonable notice and opportunity for hearing.
Whenever the Director has reason to believe that a recipient
government has failed to comply with any provision of the Act or the
regulations contained in this part, the Director shall give reasonable
notice and opportunity for a hearing to such government as required by
the pertinent procedural provisions of subparts A, E or G prior to the
invocation of any sanction available under the Act. The sanctions for
violation of the provisions of the Act include: repayment, withholding,
or reduction in the amount of an entitlement of a recipient government
which is required for a violation of the provisions of subparts B, D and
F, or suspension or termination of the entitlement payments for
violations of the provisions of subpart E.
31 CFR 51.203 Opportunity for compliance.
(a) In general. Except in proceedings involving willfulness or those
in which the public interest requires otherwise, an administrative
hearing under this part will not be instituted until such facts or
conduct which may warrant such action have been called to the attention
of the chief executive officer of the recipient government in writing
and an opportunity has been given to demonstrate or achieve compliance
with the requirements of the Act and the regulations of this part.
(b) Opportunity for compliance, under provisions other than subpart
E. The opportunity for compliance will be given in accordance with the
procedures for effecting compliance contained in 51.3 for violations of
subparts B, D and F. If the recipient government fails to meet the
requirements of the Act and regulations within such reasonable time as
specified by the Director pursuant to 51.3 of this part, an
administrative hearing may be initiated by the Director.
(c) Opportunity for compliance under subpart E. For violations of
the provisions of subpart E, entitlement funds shall be immediately
suspended after notification of a determination of noncompliance
pursuant to 51.65, unless a recipient government specifically and
timely requests an administrative hearing pursuant to 51.65. If the
recipient government is a unit of local government, a copy of the
finding and determination letters shall be transmitted by the Director
to the Governor of the State in which the unit of local government is
located.
31 CFR 51.204 Institution of administrative hearing.
(a) Institution of an administrative hearing other than under subpart
E. An administrative hearing to require repayment of funds to the
Director, or to withhold funds from subsequent entitlement payments, or
to reduce the entitlement of a recipient government for violations of
the provisions of subparts B, D, or F, shall be instituted by the
Director through a complaint which names the recipient government as the
respondent.
(b) Institution of an administrative hearing under subpart E. An
administrative hearing under subpart E of this part shall be instituted
at the timely request of the recipient government, pursuant to 51.65 of
subpart E, within thirty (30) days of receipt of that request by the
Director. After receiving the request for a hearing, the Director shall
file a complaint which names the recipient government as the respondent.
31 CFR 51.205 Complaint for administrative hearing.
Administrative complaints shall include the following:
(a) Charges. A complaint shall give a plain and concise description
of the allegations which constitute the basis for the proceeding. A
complaint shall be deemed sufficient if it fairly informs the respondent
of the charges against it.
(b) Demand for answer. Notification shall be given in the complaint
of the time and place within which the recipient government shall file
its answer, which time shall be not less than thirty (30) days from the
date of service of the complaint for hearings concerning provisions
other than subpart E. Where the hearing concerns provisions under
subpart E, the answer shall be required to be filed within ten (10) days
of the date of service of the complaint. The complaint shall also
contain notice that a decision by default will be rendered against the
recipient government in the event it fails to file its answer as
required.
31 CFR 51.206 Service of complaint and other papers.
(a) Service of complaint. The complaint or a true copy thereof may
be served upon the recipient government by first-class mail or by
certified mail, return receipt requested; or it may be served in any
other manner which has been agreed to by the respondent. Where the
service is by certified mail, the return Postal Service receipt duly
signed on behalf of the respondent shall be proof of service. Where the
hearing concerns the provisions of subpart E, the complaint shall be
served upon the recipient government within seven days of receipt of the
request for a hearing from the recipient government.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served upon a party or upon its attorney of record by
first-class mail. Such mailing shall constitute complete service.
(c) Filing of papers. Whenever the filing of a paper is required or
permitted in connection with an administrative hearing under this
subpart, and the place of filing is not specified in this subpart or by
rule or order of the administrative law judge, the paper shall be filed
with the Director, Office of Revenue Sharing, Treasury Department,
Washington, D.C. 20226. All papers shall be filed in duplicate.
(d) Motions and requests. Motions and requests may be filed with the
designated administrative law judge, except that an application to
extend the time for filing an answer shall be filed with the Director,
Office of Revenue Sharing, pursuant to 51.207(a).
31 CFR 51.207 Answer; referral to administrative law judge.
(a) Filing. The recipient government's answer shall be filed in
writing within the time specified in the complaint, unless a recipient
government's request for an extension of time is granted by the
Director. The recipient government's answer shall be filed in duplicate
with the Director, Office of Revenue Sharing.
(b) Contents. The answer shall contain a statement of facts which
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint, except that the
recipient government shall not deny a material allegation in the
complaint which it knows to be true, nor shall a recipient government
state that it is without sufficient information to form a belief when in
fact it possessses such information. The recipient government may also
state affirmatively special matters of defense.
(c) Failure to deny or answer allegation in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved, and no further
evidence in respect of such allegation need to be adduced at a hearing.
(d) Failure to file answer. Failure to file an answer within the
time prescribed in the complaint, except where the time for answer is
extended under paragraph (a) of this section, may constitute an
admission of the allegations of the complaint and a waiver of hearing,
and the administrative law judge may make his findings and decision by
default without a hearing or further procedure.
(e) Reply to answer. No reply to the recipient government's answer
shall be required, and new matter in the answer shall be deemed to be
denied, but the Director may file a reply in her discretion and shall
file one if the administrative law judge so requests.
(f) Referral to administrative law judge. Upon receipt of the answer
by the Director, or upon filing a reply if one is deemed necessary, or
upon failure of the recipient government to file an answer within the
time prescribed in the complaint or as extended under paragraph (a) of
this section, the complaint (and answer, if one is filed) shall be
referred to the administrative law judge who shall then proceed to set a
time and place for hearing and shall serve notice thereof upon the
parties at least fifteen (15) days in advance of the hearing date.
31 CFR 51.208 Proof; variance; amendment of pleadings.
In the case of a variance between the allegations in a pleading, and
the evidence adduced in support of the pleadings, the administrative law
judge may order or authorize amendment of a pleading to conform to the
evidence; Provided that, The party that would otherwise be prejudiced
by the amendment is given reasonable opportunity to meet the allegations
contained in the pleading as amended. The administrative law judge
shall make findings on any issue presented by the pleadings as so
amended.
31 CFR 51.209 Representation.
A recipient government may appear in person through its chief
executive officer or it may be represented by counsel or other duly
authorized representative. The Director shall be represented by the
General Counsel of the Treasury, or a person or persons designated by
the General Counsel.
31 CFR 51.210 Administrative law judge; powers.
(a) Appointment. An administrative law judge, appointed as provided
by section 11 of the Administrative Procedure Act (5 U.S.C. 3105),
shall conduct proceedings upon complaints filed under this subpart.
(b) Powers of administrative law judge. Among other powers provided
by law, the administrative law judge shall have authority, in connection
with any proceeding under this subpart, to do the following things:
(1) Administer oaths and affirmations;
(2) Make rulings upon motions and requests, including a motion for
oral argument, prior to making a preliminary decision under subpart E.
(3) Determine the time and place of hearing and regulate its course
and conduct. In determining the place of hearing, the administrative
law judge may take into consideration the requests and convenience of
the respondent or its counsel;
(4) Adopt and modify rules of procedure from time-to-time as occasion
requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and examine
witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written arguments on facts or law;
(8) Hold or provide for the holding of conferences for the settlement
or simplification of the issues by consent of the parties;
(9) Perform the acts and take the measures necessary or appropriate
to promote the efficient conduct of any proceeding; and
(10) Make findings of facts and conclusions of law and issue the
preliminary decision and the final agency decision as authorized by this
subpart.
(50 FR 3455, Jan. 24, 1985, as amended at 51 FR 26885, July 28, 1986)
31 CFR 51.211 Administrative hearings.
(a) Administrative hearings for violations other than subpart E. The
administrative law judge shall preside at a hearing on the merits of the
complaint. Testimony of witnesses shall be given under oath or
affirmation. The hearing shall be stenographically recorded and
transcribed. Hearings shall be conducted pursuant to section 7 of the
Administrative Procedure Act (5 U.S.C. 556). Upon completion of the
hearing, the administrative law judge shall issue the conclusions of
law, findings of fact and the final agency decision based upon the
record. The decision shall state whether or not the recipient
government has complied with the provisions of the Act.
(b) Administrative hearing under subpart E. A hearing requested by a
recipient government, pursuant to 51.65(a)(2) of subpart E, shall be
commenced by the Director within thirty (30) days of receipt of such
request and shall be held before an administrative law judge. Testimony
shall be given under oath or affirmation and shall provide for two
decisions of the administrative law judge as follows:
(1) The administrative law judge shall issue a preliminary decision
as to whether the recipient government is likely to prevail in
demonstrating compliance with subpart E. The preliminary decision shall
be based upon the record of the case (including oral argument, if any)
at that time, and shall be issued within 60 days after the request for a
hearing is received by the Director. The preliminary decision is not
appealable.
(2) After a preliminary decision and the completion of the hearing
including oral arguments, if any, the administrative law judge shall
issue the final decision in the case, based upon the complete record of
the evidence, as soon as practicable. The final decision may also be
based upon receipt of any proposed findings of fact and conclusions of
law submitted by the parties, but in no event shall it be made later
than 30 days after the conclusion of the hearing. The final decision
may be combined with the preliminary hearing in the event that the
administrative law judge decides that further proceedings are not
necessary. The final decision of the administrative law judge shall
constitute the final agency decision as described in 51.218 of this
part.
(c) Failure to appear. If a recipient government fails to appear at
a hearing, after due notice thereof has been served upon it or upon its
counsel of record, it shall be deemed to have waived the right to a
hearing and the administrative law judge may make appropriate findings
and issue a decision against the respondent by default.
(d) Waiver of hearing. A recipient government may waive the hearing
by informing the administrative law judge, in writing, on or before the
date set for hearing, that it desires to waive a hearing. In such
event, the administrative law judge may make appropriate findings and
issue a decision based upon pleadings and the record before her,
together with such documentary evidence properly submitted. The
decision shall plainly show that the respondent waived the hearing.
(50 FR 3455, Jan. 24, 1985, as amended at 51 FR 26885, July 28, 1986)
31 CFR 51.212 Stipulations.
The administrative law judge shall, prior to or at the beginning of a
hearing, require the parties to arrive at such stipulations as will
eliminate the necessity of taking evidence with respect to allegations
of facts concerning which there is no genuine issue of material fact.
The administrative law judge shall take similar action, where it appears
appropriate, throughout the hearing and shall call and conduct any
conferences which she deems advisable with a view to the simplification,
clarification, and disposition of any of the issues involved.
(50 FR 3455, Jan. 24, 1985; 50 FR 8612, Mar. 4, 1985)
31 CFR 51.213 Evidence.
(a) General. Any evidence which would be admissible under the rules
of evidence governing proceedings in matters not involving trial by jury
in the Courts of the United States, shall be admissible and controlling
as far as possible; Provided that the administrative law judge may
relax such rules in any hearing when in her judgment such relaxation
would not impair the rights of either party and would more speedily
conclude the hearing, or would better serve the ends of justice.
Evidence which is irrelevant, immaterial or unduly repetitious shall be
excluded by the administrative law judge.
(b) Depositions. The deposition of any witness may be taken pursuant
to 51.214 and the deposition may be admitted as evidence.
(c) Proof of documents. Official documents, records, and papers of a
respondent shall be admissible as evidence without the production of the
original, provided that such documents, records and papers are proven to
represent the original by a copy attested or identified by the chief
executive officer of the respondent or the custodian of the document,
and contained the seal of the respondent.
(d) Exhibits. If any document, record, paper, or other tangible or
material thing is introduced in evidence as an exhibit, the
administrative law judge may authorize the withdrawal of the exhibit
subject to any conditions she deems proper. An original document, paper
or record need not be introduced, and a copy duly certified (pursuant to
paragraph (c) of this section) shall be deemed sufficient.
(e) Objections. Objections to evidence shall be in short form,
stating the grounds of objection relied upon, and the record shall not
include argument thereon, except as permitted by the administrative law
judge. Rulings on such objections shall be a part of the record. No
exception to the ruling is necessary to preserve the right of either
party to the proceeding.
31 CFR 51.214 Depositions.
(a) In general. Depositions for use at a hearing may, with the
written approval of the administrative law judge, be taken by either the
Director or the respondent or their duly authorized representatives.
Depositions may be taken upon oral or written interrogatories, upon not
less than fifteen (15) days written notice to the other party, before
any officer duly authorized to administer an oath for general purposes,
except in proceedings under subpart E in which case depositions may be
taken upon not less than ten (10) days written notice. Such written
notice shall state the names of the witnesses and the time and place
where the depositions are to be taken. The requirement of written
notice may be waived by the parties in writing, or may be modified by
the administrative law judge. Depositions may be taken from the persons
and at times and places mutually agreed to by the parties.
(b) Written interrogatories. When a deposition is taken upon written
interrogatories, any cross-examination shall be upon written
interrogatories. Copies of such written interrogatories shall be served
upon the other party with the notice, and copies of any written
cross-interrogatories shall be mailed by first class mail or delivered
to the opposing party at least seven (7) calendar days before the date
on which such interrogatories or cross-interrogatories are scheduled to
be answered, unless the parties mutually agree or the administrative law
judge rules otherwise. A party upon whose behalf a deposition is taken
must file it with the administrative law judge and serve one copy upon
the opposing party. Expenses in the reporting of depositions shall be
borne by the party at whose request the deposition is taken.
31 CFR 51.215 Stenographic record; oath of reporter; transcript.
(a) In general. A stenographic record shall be made of the testimony
and proceedings, including stipulations and admissions of fact in all
proceedings. A transcript of the proceedings and evidence at a hearing
shall be made in all cases.
(b) Oath of reporter. The reporter making the stenographic record
shall subscribe an oath before the administrative law judge, to be filed
in the record of the case, that said reporter will truly and correctly
report the oral testimony and proceedings at such hearing and accurately
transcribe the same to the best of her ability.
(c) Transcript. In cases where the hearing is stenographically
reported by a government contract reporter, copies of the transcript may
be obtained from the reporter at rates not to exceed the maximum rates
fixed by contract between the government and the reporter. Where the
hearing is stenographically reported by a regular employee of the
Department of the Treasury, a copy thereof will be supplied to the
respondent or its counsel at actual cost of duplication. Copies of
exhibits introduced at the hearing or at the taking of the deposition
will be supplied to the parties upon the payment of a reasonable fee (31
U.S.C. 483(a)).
31 CFR 51.216 Proposed findings and conclusions.
Except in cases where a recipient government has failed to answer the
complaint, has failed to appear at the hearing, or has waived the
hearing, the administrative law judge shall, prior to making the
preliminary finding under 51.217 for hearings under subpart E or the
initial decision, give the parties a reasonable opportunity to submit
proposed findings of fact and conclusions of law and any supporting
reasons.
31 CFR 51.217 Preliminary finding (for hearings under subpart E).
(a) Suspension of funding or termination of payment by administrative
law judge. (1) Within thirty (30) days after the commencement of a
summary hearing under 51.211(b)(1), the administrative law judge
conducting the hearing shall, on the record of evidence presented, issue
a preliminary finding as to whether the recipient government has failed
to comply with the provisions of this part. If the preliminary finding
of the administrative law judge is to the effect that the recipient
government is not likely to prevail on the issues to which the hearing
pertained, the Director shall immediately suspend the further payment of
entitlement funds to the recipient government.
(2) Such suspension shall remain in effect until a compliance
agreement is entered into by the recipient government and the Director.
A preliminary finding by the administrative law judge is not appealable
by the recipient government. After the completion of the full hearing
on the merits, the administrative law judge shall make findings and a
decision based upon the complete record of the evidence. If the
administrative law judge issues a decision that the recipient government
has failed to comply with the provisions of this part, then the
recipient government must enter into a compliance agreement with the
Director before the 31st day after the decision. If no compliance
agreement is entered into, the Director shall, upon the final decision
of the administrative law judge, indefinitely suspend the payment of
entitlement funds to the recipient government, continue the suspension
invoked under paragraph (a)(1) of this section, or terminate the payment
of entitlement funds if ordered to terminate by the administrative law
judge.
(b) Resumption of funding; finding of compliance by administrative
law judge. A determination by the administrative law judge that the
recipient government has complied with the provisions of this part, will
terminate a suspension or termination of entitlement funds by the
Director pursuant to paragraph (a) of this section. The Director shall,
as promptly as feasible, pay over to the recipient government all
entitlement funds the payment of which were suspended.
(50 FR 3455, Jan. 24, 1985, as amended at 51 FR 26886, July 28, 1986)
31 CFR 51.218 Final decision of the administrative law judge.
(a) In general. As soon as practicable after the conclusion of a
full hearing on the merits under 51.211(b)(2) and the receipt of any
proposed findings of fact and conclusions of law timely submitted by the
parties, but in no event later than 30 days after the conclusion of the
hearing, the administrative law judge shall, in accordance with 5 U.S.C.
section 557, make the final decision in the case. The final decision
shall include a statement of the findings of fact and the conclusions of
law reached upon all the material issues of fact, law or discretion
presented on the record, as well as the reasons or basis for them. The
decision shall not, however, order any particular remedy for the
noncompliance, but shall only state whether the recipient government has
failed to comply with the provisions of the statute. The nature of the
remedy shall be within the discretion of the Director, based upon the
findings of fact and conclusions of law of the administrative law judge.
The final decision shall further provide for one or more of the
following:
(1) With respect to proceedings under subpart E --
(i) A determination that the recipient government has failed to
comply with the provisions of subpart E. This determination shall
result in the immediate suspension of the further payment of entitlement
funds by the Director or continued suspension of such funds if they had
been previously suspended pursuant to a preliminary finding by the
administrative law judge as described in 51.217 of this subpart.
(ii) An order pursuant to paragraph (a) of this section, that the
payment of entitlement funds to the recipient government is terminated.
(iii) A determination that the recipient government has proven
compliance with the provisions of subpart E. This determination should
cause the Director to immediately resume payments, if they had been
suspended pursuant to 51.217.
(2) With respect to proceedings other than under subpart E --
(i) That the Director withhold subsequent entitlement payments to the
respondent until appropriate corrective action (as determined by the
Director) is taken; and
(ii) That the entitlement of a recipient government be reduced and
the amount of such reduction be withheld from subsequent entitlement
payments.
(3) That the proceedings be dismissed.
(b) Suspension of funding. For violations of the provisions of
subpart E, if the final decision is against the recipient government,
the Director shall suspend the payment of entitlement funds (or
continued suspension of funds suspended after a preliminary finding of
the administrative law judge). The entitlement payment to the recipient
government shall be suspended by the Director until the recipient
government enters into a compliance agreement which satisfies the
Director that appropriate corrective action has been taken and there is
full compliance with the provisions of subpart E.
(c) Order of termination of funding. For violations of the
provisions of subpart E, if the order of the administrative law judge
against the recipient government is for termination of entitlement
funds, the entitlement payment to the recipient government shall be
terminated by the Director. The recipient government may resume
participation in the program in the future if it enters into a
compliance agreement which satisfies the Director that appropriate
corrective action has been taken and there is full compliance with the
provisions of subpart E. Entitlement funds terminated shall be returned
to the general fund of the Department and will not be available to the
recipient government, unless the order of termination is reversed by an
appellate tribunal.
(d) Withholding of funding. For violations of provisions other than
subpart E, if the final decision of the administrative law judge or the
Secretary is against the recipient government the Director shall
withhold the further payment of entitlement funds to the recipient
government. The amounts shall be withheld by the Director after notice
to the chief executive officer of the recipient government. The notice
shall state that if the recipient government fails to take corrective
action within sixty (60) days after receipt of the notice, the further
payment of entitlement payments will be withheld until the Director is
satisfied that appropriate corrective action has been taken and there is
full compliance with the Act and regulations of this part.
(50 FR 3455, Jan. 24, 1985; 50 FR 8611 and 8612, Mar. 4, 1985, as
amended at 51 FR 26886, July 28, 1986)
31 CFR 51.219 Certification and transmittal of record and decision.
After reaching the final decision, the administrative law judge shall
certify the complete record and immediately forward the certified
record, together with a certified copy of the final decision, to the
Director. The administrative law judge shall also serve a copy of the
final decision by certified mail upon the chief executive officer of the
recipient government or upon its attorney of record.
(50 FR 3455, Jan. 24, 1985, as amended at 51 FR 26886, July 28, 1986)
31 CFR 51.220 What constitutes the record?
The transcript of testimony, pleadings and exhibits, all papers and
requests filed in the proceeding, together with all findings, decisions
and orders, shall constitute the exclusive record in the matter.
31 CFR 51.221 Publicity of proceedings.
(a) In general. A proceeding conducted under this subpart shall be
open to the public and to elements of the news media provided that, in
the judgment of the administrative law judge, the presence of the media
does not detract from the decorum and dignity of the proceeding.
(b) Availability of record. The record established in any proceeding
conducted under this subpart shall be made available for inspection by
the public as provided for in accordance with regulations of the
Department of the Treasury pursuant to 31 CFR part 1.
(c) Decisions of the administrative law judge. The statement of
findings and the decisions of the administrative law judge in any
hearings shall be indexed and maintained by the Director and made
available for public inspection at the public documents room of the
Department. If practicable, the statement of findings and the decisions
of the administrative law judge shall be published periodically by the
Department and offered for sale through the Superintendent of Documents.
(50 FR 3455, Jan. 24, 1985. Redesignated and amended at 51 FR 26886,
July 28, 1986)
31 CFR 51.222 Judicial review.
(a) In general. Actions taken as a result of administrative hearings
pursuant to this subpart shall be subject to judicial review pursuant to
section 6722 of the Act.
(b) Appeal by the respondent. A recipient government may appeal the
final decision of the administrative law judge to the U.S. Court of
Appeals, as provided by 31 U.S.C. 6722.
(c) Cross-appeal by the Director. In the event a recipient
government appeals, the Director may cross-appeal any issues decided
adversely to the ORS by the administrative law judge.
(d) The record. The Director upon prior notification of the filing
of the petition for review, shall have prepared in triplicate, a
complete transcript of the record of the proceeding, and shall certify
to the correctness of the record. The original record shall then be
filed with the Court of Appeals which has jurisdiction.
(50 FR 3455, Jan. 24, 1985. Redesignated and amended at 51 FR 26886,
July 28, 1986)
31 CFR 51.222 Appendix A -- Age Distinction and Explanatory Material
31 CFR 51.222 Pt. 51, App. A
There is only one age distinction contained in the Revenue Sharing
Act. 31 U.S.C. 6714 (a)(3) provides that a ''State government or unit
of general local government holding a hearing requried under this
subsection or by the budget process of the government shall try to
provide senior citizens and senior citizen organizations with an
opportunity to present views at the hearing before the government makes
a final decision on the use of the payment.'' The corresponding
regulation is 51.16 ''Participation by senior citizens'' (31 CFR
51.16).
The following discussion of the critical issues concerning the Age
Discrimination prohibition is reprinted from the final government-wide
regulations (45 CFR part 90, published in the Federal Register on June
12, 1979 (44 FR 33771)).
Section 303 of the Act prohibits discrimination on the basis of age
in federally funded programs or activities. Although the legislative
history indicates Congressional concern for the problems of the elderly
in particular, the Congress made it clear in its Conference Committee
report that the Act is intended to apply to persons of all ages.
When the Act was originally passed in 1975, Congress directed the
United States Commission on Civil Rights to conduct a study of age
discrimination in federally funded programs, and required each affected
Federal agency to respond to the Commission's study. After reviewing
the Commission's report and Federal agency responses to it, Congress
considered amendments to the Act. Nowhere in the amendment process was
there any discussion of limiting or changing the coverage of the Act.
It continues to extend protection to persons of all ages.
Various advocacy groups for older persons have suggested that HEW
construe these general implementing regulations to protect only the
elderly or to provide greater protection for older persons than for
other age groups. This construction is not legally supportable in view
of the legislative history and the plain language of the Act.
However, the Congress has consistently made clear its support for the
concerns of older persons. It is therefore unlikely that Congress
intended the Act to call into question the generally accepted special
benefits which are provided to older persons in programs that are
otherwise available to a wider age range of the population. Public
comment on the regulations was almost unanimously supportive of these
benefits, which often take the form of special discounts. Similarly, no
one has suggested that similar benefits for children should be
questioned under the Act.
HEW supports the continuation of special benefits for children and
older persons. Therefore, these regulations permit special benefits for
the elderly persons and for children that are extended by recipients so
long as they do not result in the exclusion from the program of
otherwise eligible persons. ( 90.49(c)).
Commenters also asked whether the Act requires proportional
allocation by age of the services and the benefits of federally assisted
programs. Some believe that certain groups, especially the elderly, do
not get their ''fair share'' of funds in certain programs or that
certain program participation rates among age groups like the elderly
are disproportionately low.
The final regulations do not require proportional program
participation by age or the proportional allocation of funds by age.
Discrimination has not been defined in this way in other
nondiscrimination regulations. However, disproportionate allocation of
funds or program participation may be one of the elements which triggers
an examination of whether age discrimination exists in the federally
funded program or activity. If further inquiry is necessary, the
recipient may show that the disparity in rates of participation, fund
allocation, or services has nondiscriminatory causes. Comments on the
NPRM suggested that there may be nondiscriminatory reasons which
adequately explain the disproportionately low participation of the
elderly in some programs.
The Age Discrimination Act exempts from coverage age distinctions
contained in a program or activity ''established under authority of any
law'' which provides benefits on the basis of age or in age-related
terms. Congress did not expressly indicate anywhere in the legislative
history of the Act what it meant by the term ''any law.'' The
regulations must, nevertheless, define the phrase ''established under
authority of any law'' in order to determine which age distinctions are
exempted by this provision of the Act.
The NPRM presented four options for interpreting the phrase ''any
law'' and asked for comments on those or any other reasonable
interpretations. The NPRM cited two overriding issues to be considered
in determining the meaning of ''any law'' (a) whether to include age
distinctions contained in regulations; and (b) whether to include age
distinctions enacted by State and local legislative bodies.
The narrowest option interpreted ''any law'' to mean only Federal
statutes. The broadest option interpreted ''any law'' to include
Federal, State and local statutes and Federal, State and local
regulations. Supporters of defining ''any law'' to mean only Federal
statutes argued that any other interpretation seriously weakens the Act.
Congress could not have intended to give discretion to State or local
legislative bodies to exempt any age distinction from the coverage of
the Act. To do so would be an abdication of Federal responsibility
which defeats the purpose of the Act.
Those who argued that ''any law'' should mean Federal and State
statutes argued that the Act should permit the State to use age in
exercising their traditional power in such areas as defining the age of
majority, controlling access to a driver's license, and regulating
compulsory school attendance. On the other hand, extending this
exemption to local statutes and ordinances would permit thousands of
local jurisdictions to introduce age distinctions into the
administration of Federal programs which would fatally weaken the Act.
Supporters of defining ''any law'' to mean Federal, State and local
statutes and ordinances argued that there is no clear basis for limiting
the interpretation of ''any law'' to Federal statutes. Congress
rejected an amendment to the Act in 1978 which would have defined ''any
law'' to mean Federal statutes. Furthermore, there is no basis for
excluding local statutes and ordinances if State statutes are included
in the definition. They argued that no case has been made that age
discrimination occurs as a result of age distinctions in State and local
statutes and ordinances and the beneficial age distinctions are enacted
by State and local legislative bodies.
Defining ''any law'' to include all regulations had relatively little
support. Some suggested defining ''any law'' to mean Federal statutes
and regulations. Supporters of including regulations in the definition
argued that regulations have the force and effect of law and should be
included in the ''any law'' exemption. This position has been rejected
on the grounds that it would permit administrators of federally funded
programs to impose age distinctions which are not authorized by a
legislative body. In addition, HEW does not believe that the language
''established under authority of any law'' necessarily includes
regulations having the force and effect of law.
The final regulations define ''any law'' to mean Federal, State and
local statutes and ordinances. The language of the statute, and the
general lack of legislative history to justify any narrower
interpretation of that language support the conclusion that Federal and
State statutes, and statutes or ordinances enacted by general purposes,
elected local governments should be exempt from coverage of the Act.
This is particularly appropriate in the absence of any clear indication
that age discrimination occurs as a result of State and local statutes.
This definition of ''any law'' recognizes the authority of State and
general purpose, elected local governments to enact statutes which
condition benefits or participation on the basis of age.
1. Federal statutes. The Adult Education Act (20 U.S.C. 1201-1213)
is statutorily designed to provide services or instruction below college
level for adults. The Act defines adults as individuals who have
attained the age of 16. This limitation of participation in adult
education programs is not covered by the Act. The Runaway Youth Program
(42 U.S.C. 5701) authorized under the Juvenile Justice and Delinquency
Prevention Act, awards grants for the development and/or strengthening
of local facilities to address the immediate needs of runaway youth in a
manner which is outside of the law enforcement and juvenile justice
systems. The terms ''runaway youth,'' ''juveniles,'' and ''young
people'' are used in the statute without further definition. Reasonable
definitions of these terms would not be covered by the Act.
2. State statutes. Statutes setting age limitations on obtaining a
driver's license or fixing age limits for compulsory school attendance
are not covered by the Act.
3. Local statutes or ordinances. Age limitations on consuming
alcoholic beverages or possessing firearms are not covered by the Act as
long as these are adopted by an elected general purpose legislative
body.
Note: Any age distinction not exempted from coverage by the ''any
law'' provision may still qualify for an exception under another
provision of the Act or these regulations.
Many commenters asked for clarification of the rules against age
discrimination contained in 90.12 of the regulations. 90.12 sets
forth a general rule against age discrimination which is based on
section 303 of the Act, and then presents specific rules against age
discrimination. These rules are limited by the exceptions contained in
the Act and these regulations.
The general rule in 90.12 reflects the language of the Act: Except
as provided in the Act and these regulations, '' * * * no person in the
United States shall, on the basis of age, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under,
any program or activity receiving Federal financial assistance.'' It
means that, unless sanctioned by one of the exceptions, recipients of
Federal financial assistance may not, either directly or indirectly, do
anything to exclude persons from their programs or activities on the
basis of age. Nor may recipients do anything not sanctioned by one of
the exceptions to deny or limit persons in their efforts to participate
in federally funded programs or activities on the basis of their age.
For example, a medical school may not exclude persons from admission
solely because of their age.
The prohibition against age discrimination does not include an
absolute prohibition against separate or different treatment on the
basis of age. As a general rule, separate or different treatment which
denies or limits services from, or participation in, a program receiving
Federal financial assistance would be prohibited by these regulations.
On the other hand, these regulations do not automatically invalidate the
provision of services through separate or different treatment on the
basis of age. Separate or different treatment necessary to normal
operations or to the achievement of a statutory objective would qualify
for any exception under these regulations.
Section 90.49 of these regulations contains language which affects
the rules against discrimination in two important ways: a recipient may
voluntarily act to overcome the effects of conditions which, in the
past, have limited participation in a federally assisted program on the
basis of age; and, a recipient may provide special benefits for
children or the elderly if, by so doing, the recipient does not exclude
others who are eligible from participating in the federally assisted
program. As mentioned earlier, HEW does not believe that Congress meant
to disturb the practices of recipients which provide special benefits to
children or the elderly. For example, reduced fares for children and
for senior citizens on public transportation or on railways or airlines
would qualify as a special benefit under 90.49 of these regulations.
The definition of who qualifies as ''children'' or ''elderly'' for
purposes of receiving a special benefit will be left to the reasonable
discretion of the recipients who voluntarily provide the benefit.
a. Definition of Statutory Objective and Normal Operation. Many
commenters questioned the meaning, clarity, and interpretation of the
statutory exceptions to the prohibition against age discrimination
contained in the proposed rules 90.14 and 90.15.
Two phrases, ''normal operations'' and ''statutory objective'' are
used in these regulations in interpreting the Act's exceptions for
explicit age distinctions ( 90.14) and for the use of factors other than
age ( 90.15). Critical to an understanding of these statutory exceptions
is the definition of ''statutory objective'' and the definition of
''normal operation.''
The NPRM stated that statutory objective would mean either: (1) Any
purpose of a program or activity expressly stated in a statute, or (2)
any purpose of a program or activity expressly stated in a statute or
reasonably inferred from its provisions or legislative history. Because
legislative history is a broad concept and because statutory objectives
will be used to justify the use of administratively imposed age
distinctions or factors other than age which have a disproportionate
effect, HEW believes that the term ''statutory objective'' should be
construed to mean only expressly stated objectives.
The NPRM was silent about whether the term ''statutory objective''
referred to Federal statutes, or State statutes, or local statutes, or
all statutes. HEW believes the definition of ''statutory objective'' in
90.13 should be parallel. Therefore, the final regulations define
''statutory objective'' to mean''any purpose of a program or activity
expressly stated in any Federal statute, State, statute or local statute
or ordinance adopted by an elected, general purpose legislative body.''
The final regulations have not changed the definition of ''normal
operation.'' ''Normal operation'' continues to mean ''the operation of a
program or activity without significant changes that would impair its
ability to meet its objectives.'' This definition of ''normal
operation'' means that a recipient of Federal funds may not use the
statutory exceptions to justify refusing to make changes in program
operation because those changes disturb administrative routine or are
inconvenient.
b. The four-part test for determining when an explicit age
distinction is necessary to normal program operations or necessary to
achieve a statutory objective. Section 90.14 establishes a four-part
test for explicit age claimed to be necessary to the normal operation of
program or activity.
The NPRM provided that an action reasonably takes age into accounts
as a factor necessary to the normal operation of a program or activity,
if:
(a) Age is used as a measure or approximation of one or more other
characteristics (e.g., maturity);
(b) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity;
(c) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(d) The other characteristic(s) are difficult, costly, or otherwise
impractical to measure directly.
The final regulations retain the four-part test, with some changes.
The word ''and'' has been added after part (a) and (b) to clarify the
intent that an age distinction must meet all four parts in order to
qualify for an exception. The reference to ''maturity'' has been
deleted as an example of a characteristic for which age may be an
approximation, because commenters felt that the term was too vague and
did not illustrate what was meant in the test. The first part of the
test in section 90.14 refers to a situation in which a program uses an
age distinction as an indicator of some other characteristic, such as
susceptibility to disease.
The third change occurs in part (d) of the test. The final
regulations no longer contain a reference to cost or difficulty;
however, part (d) now requires that the characteristics for which age is
an approximation must be impractical to measure directly on an
individual basis.
Thus, to qualify for an exception under 90.14, all four of the
following conditions must be met: (a) The age distinction in question
must be used as an indicator or measure of some other (non-age)
characteristic; (b) the other characteristic must be necessary for
''normal operation''; or for the achievement of a ''statutory
objective''; (c) the other characteristic must be capable of being
reasonably approximated by age; and (d) the other characteristic must
be impractical to measure directly on an individual basis.
The test set out in 90.14 is designed to require careful scrutiny of
age distinctions in programs receiving Federal financial assistance. It
is not intended to serve as a basis for permitting continued use of age
distinctions for the sake of administrative convenience if this results
in denial or limitation of services on the basis of age.
HEW encourages recipients to apply age distinctions flexibly; that
is, to permit a person, upon a proper showing of the necessary
characteristic to participate in the activity or program even though he
or she would otherwise be barred by the age distinction. Other things
being equal, an age distinction is more likely to qualify under one of
the statutory exceptions if it does not automatically bar all those who
do not meet the age requirements.
Program.''
1. A youth organization receiving Federal financial assistance
imposes a maximum age limitation on membership. The organization claims
that it has as an objective the training, education and character
development of youth. The use of a maximum age limit is necessary to
the normal operation of the recipient's program because:
(a) Age is used as a measure of the need for training, education, and
character building experiences preparing for the assumption of adult
responsibility; and
(b) The need for the service must be measured in order for the youth
organization's objective to be met; and
(c) Age is highly related to the need for this service and is thus a
reasonable measure of it; and
(d) It is not practical to measure this need on an individual basis
(i.e., while some persons over the age limit might benefit from the
service and some persons under the age limit might not need it, there is
no practical way to identify them on an individual basis).
2. A medical school receiving Federal financial assistance generally
does not admit anyone over 35 years of age, even though this results in
turning away highly qualified applicants over 35.
The school claims that it has an objective, the teaching of qualified
medical students who upon graduation, will practice as long as possible.
The school believes that this objective requires it to select younger
applicants over older ones.
The use of such an age distinction is not necessary to the normal
operation of the recipient's program because it does not meet the
requirement of 90.14(b).
Age of the applicant may be a reasonable measure of a non-age
characteristic (longevity of practice). This characteristic may be
impractical to measure directly on an individual basis. Nevertheless,
achieving a high average longevity of practice for its graduates cannot
be considered a program objective for a medical school within the
meaning of the Act. The ''normal operation'' exception is not intended
to permit a recipient to use broad notions of efficiency or cost-benefit
analysis to justify exclusion from a program on the basis of age. The
basic objectives of the medical school involve training competent and
qualified medical school graduates. Those objectives are not impaired
if the average length its graduates practice medicine is lowered by a
fraction of a year (or more) by the admission of qualified applicants
over thirty-five (35) years of age.
Objective''
1. Applications for grants for disease control programs under the
Public Health Service Act can only be approved if they ''(B) contain
assurances satisfactory to the Secretary that * * * the applicant will
conduct such programs as may be necessary (i) to develop an awareness in
those persons in the area served by the applicant who are most
susceptible to the disease or conditions * * * of appropriate preventive
behavior and measures (including immunization) and diagnostic procedures
for such disease, and (ii) to facilitate their access to such measures
and procedures.'' (42 U.S.C. 247b).
Under the test of 90.14, it is necessary to the achievement of this
explicit statutory objective to give priority in immunization to age
categories most at risk to the disease in question because:
(a) Age is being used as a measure of susceptibility to a disease;
and
(b) Susceptibility to disease must be measured for the statutory
objective to be met; and
(c) Age is a reasonable measure of susceptibility to the particular
disease; and
(d) Susceptibility to the disease is impractical to measure directly
on an individual basis.
2. The purpose of the Adult Education Act (20 U.S.C. 1201 et seq.) is
to provide education that will ''enable all adults to continue their
education * * * and * * * enable them to become more employable,
productive, and responsible citizens.'' The Act defines adult as ''any
individual who has attained the age of 16''. (20 U.S.C. 1201(a).)
A recipient limits participation in its adult education program to
adults under thirty-five (35) on the grounds that this is necessary to
achieve the explicit Adult Education Act objective of increasing
employability, productivity, and responsibility.
It is not necessary to the achievement of this statutory objective to
limit participation of those under thirty-five (35). This age
limitation fails at least two elements of the four-part test set out in
90.14. Employability, productivity and responsibility need not be
measured in order to meet the statutory objective of making adults more
employable, productive or responsible because the objective is
comparative rather than absolute. The statute only requires an effort
to improve these characteristics in an individual, not to maximize the
degree of improvement.
These characteristics have no demonstrable correlation with age and
cannot be reasonably measured by the use of age ( 90.14(c)).
Whether or not these characteristics can practically be measured
directly on an individual basis need not be considered, since the
characteristics do not have to be measured in order to meet the
statutory objective.
c. Use of Reasonable Factors Other than Age. Section 90.15 of the
NPRM set out four options to characterize the relationship between a
factor other than age that may have discriminatory effect and the normal
operation of a program or the achievement of a statutory objective.
Those four options were rational, direct, substantial, and necessary.
Commenters disagreed about what relationship a factor other than age
should bear to the normal operation or the statutory objective of a
program or activity.
The final regulations require that the factor other than age bear a
direct and substantial relationship to the normal operation of the
statutory objective of a program or activity. The ''rationale'' option,
which was equated in the NPRM with the rational basis test used under
the equal protection clause of the Fourteenth Amendment, has been
rejected on the grounds that many serious discriminatory effects created
by factors other than age would be likely to survive a rational basis
level of scrutiny.
The ''necessary'' option has been rejected because it requires a test
which is not sufficiently flexible to deal with the variety of factors
other than age and the variation in facts and circumstances that
contribute to whether those factors other than age are ''reasonable.''
The regulations adopt the ''direct and substantial'' standard because
it provides the appropriate flexibility and, at the same time, avoids
the weaknesses inherent in the ''rational'' standard.
Use of the ''direct and substantial'' standard means that use of
factors other than age must be carefully examined in light of the
individual facts and circumstances surrounding their use. This
examination will determine whether use of the factor other than age is a
sufficiently effective method of achieving a worthwhile program purpose
to justify limiting or denying services or participation to adversely
affected persons.
1. A federally assisted training program uses a physical fitness test
as a factor for selecting participants to train for a certain job. The
job involves frequent heavy lifting and other demands for physical
strength and stamina. Even though older persons might fail the test
more frequently than younger persons, the physical fitness test measures
a characteristic that is directly and substantially related to the job
for which persons are being trained and is, therefore, permissible under
the Act.
2. The same program referred to in (1) above uses the same physical
fitness test to select participants for a training program for clerical
work. It claims that persons who pass the test are likely to do better
work than those who are unable to pass the test. Even if this were
true, the relationship between the requirements of the test and the
requirements of the type of job for which training is being offered is
not direct and substantial. It is so tenuous and limited that it will
not justify the test's age discriminatory effect. In this situation,
use of the test would violate the Act.
The NPRM raised the issue of whether cost-benefit considerations can
justify the use of age distinctions or factors other than age. A
majority of commenters expressed support for the NPRM position that a
cost-benefit consideration by itself cannot be the sole justification
for an exception under 90.14 and 90.15. Others however, opposed any
use of cost-benefit analysis in the administration of federally assisted
programs.
The use of an explicit age distinction in the operation of a
federally assisted program will have to be justified as necessary to the
normal operation of the program or to the achievement of a statutory
objective. That is, the explicit age distinction will have to meet the
four part test of 90.14 and cannot be disqualified or justified because
it reflects a cost-benefit consideration. Use of a factor other than
age will have to meet the test established in 90.15 and cannot be
disqualified or justified because it reflects a cost-benefit
consideration. The scrutiny afforded age distinctions and factors other
than age under these regulations should have the effect of screening out
discriminatory cost-benefit considerations.
Another major issue in the NPRM concerned similar services provided
by both general and age-targeted programs. The question was whether the
existence of an age-targeted program in any way relieved a general
program of its obligation to serve the age group eligible for the
age-targeted program.
Many commenters expressed the view that the general program was not
relieved in any way of its obligation to serve everyone regardless of
age. They reasoned that: The age targeted program was intended to
supplement service for the eligible population, not to replace the
services provided by the general program; an age-targeted program
recognizes the special or additional needs of an age group, so that any
restriction on the availability of services in a general program based
solely on the existence of an age-targeted program would be
discriminatory; administrators should not be given discretion to limit
participation on the basis of age in a general program which Congress
created to serve all ages.
Some commenters did say, however, that there are occasions when a
general program should be permitted to deny services to an age group
which is served elsewhere. They reasoned that the general programs can
then focus on those in need who are not being served elsewhere;
services offered in a general program should be based on the needs of
the community as a whole and should take into account what is offered
elsewhere; to require a general program to spread its limited resources
to all age groups, regardless of the availability of similar services,
would weaken the quality of the services provided. There was no support
for the services provided. There was no support for the view that the
general program's obligation was unconditionally lessened by the
existence of the age targeted program.
The final regulations continue the policy expressed in the NPRM that,
for a general program any deviation from a policy of serving all
eligible persons regardless of age that results in a denial or
limitation of service on the basis of age is only permissible if it
meets one of the statutory exceptions under 90.14 or 90.15.
A general program can focus its services by referring persons to
existing age targeted programs only if those actions do not result in
the denial of services to the individual or in the provision of lesser
or different services. However, HEW is persuaded that there are
situations when referral to an age targeted program does not result in a
denial or limitation of services. For example, a program which serves
all ages may be aware of an age targeted program which, because of its
specialization, offer better services to that age group. A general
program may have a waiting list of applicants while a similar age
targeted program has space available. In situations like these, a
general program could refer an applicant to the age targeted program
provided that it had sufficiently well established relationship with the
age targeted program to assure that the person referred actually
received the service sought.
The NPRM proposed that complaints of age discrimination be subject to
mediation after initial screening by the Federal agency. The NPRM also
proposed that participation in mediation be mandatory for both
complainant and recipient and that administration of the mediation
process be centralized in one government agency, the Federal Mediation
and Conciliation Service (FMCS). These provisions of the NPRM have been
kept in the final regulations.
While most commenters supported the proposed use of mediation, some
commenters questioned the appropriateness of requiring mediation as the
first step in resolving an age discrimination complaint. They argued
that mediation promotes inappropriate bargaining over civil rights, that
mediation may jeopardize the rights of complainants, that not every
complaint is suitable for mediation, that mediation introduces a new and
different step in the complaint resolution process which will be
unnecessarily confusing to complainants and recipients.
HEW continues to believe that the mediation process is an important
innovation in resolution of age discrimination complaints. Mediation is
an effort to provide faster and more creative resolution of complaints
through informal methods of dispute resolution. Attempts to reach a
mediated settlement of the complaint must be completed in the first
sixty (60) days after the complaint is received. While mediation does
represent a new step in the complaint resolution process, the experience
in resolving complaints under other civil rights statutes has been that
the 60 days set aside for mediation will not significantly delay the
enforcement process.
Experience with mediation in other areas indicates that even the most
intransigent parties can arrive at a mutually satisfactory resolution of
their dispute. Consequently, HEW believes it is desirable to require
that mediation be attempted in all complaints. Mediation does not
necessarily mean that the two parties to the dispute must meet face to
face; each may meet separately with the mediator. Since the mediated
settlement must be satisfactory to both parties neither the complainant
nor the recipient is compelled to settle the complaint. Since the cost
of the mediator will be paid by the Federal Government, the financial
burden on complainants and recipients will be minimal. HEW believes
that the ADA offers a unique opportunity to try this innovative approach
to the resolution of disputes.
These regulations require that the management of the mediation
process be centralized in one agency, designated by the Secretary of
HEW. The FMCS will be that agency. Commenters critical of this
decision questioned the wisdom of introducing a new agency into the
civil rights enforcement process. Some suggested that each agency
should manage its own mediation process, to permit the use of staff who
would be more familiar with the program and problems of the Federal
agency receiving the complaint.
HEW believes that the benefits to be realized by centralizing the
management of the mediation process are substantial and that the FMCS is
the appropriate agency for the job. The use of a single agency to
manage the mediation process assures that uniform standards will be used
in the recruitment and training of mediators, that the training will be
centralized, that consistent procedures will be followed in the
mediation, and that there can be a comprehensive and coherent evaluation
of the process as part of the 30 month review of the effectiveness of
these regulations. While the use of the FMCS does introduce a new
agency into civil rights enforcement, one of the key elements in
mediation is that both sides have confidence that the mediator is an
independent third party. HEW believes that mediation of age
discrimination complaints has a better chance to succeed if the mediator
is not part of the staff of a Federal agency responsible for enforcing
the Age Discrimination Act. The FMCS, which has an established
reputation for mediating disputes, will draw on some of its experienced
staff and will recruit and train a cadre of community based mediators
who will work on age discrimination complaints.
(50 FR 3455, Jan. 24, 1985; 50 FR 8611, Mar. 4, 1985; 50 FR 26987,
July 1, 1985)
*The examples illustrate general situations in which the regulations
are applied to hypothetical recipients.
31 CFR 51.222 PART 52 -- ANTIRECESSION FISCAL ASSISTANCE TO STATE, TERRITORIAL AND LOCAL GOVERNMENTS
31 CFR 51.222 Subpart A -- General Information
Sec.
52.0 Scope and application of regulations.
52.1 Delegation of authority.
52.2 Definitions.
52.3 Procedure for effecting compliance.
52.4 Extension of time.
52.5 Transfer of payments to secondary recipients.
31 CFR 51.222 Subpart B -- Reports and Written Communications
52.10 Assurances; Reports to the Director.
52.11 Publication and publicity of reports; public inspection.
52.12 Special reports.
31 CFR 51.222 Subpart C -- Adjustments and Data Factors
52.20 Adjustment reserve fund.
52.21 Adjustments to future payments.
52.22 Unemployment rate data.
52.23 Revenue sharing amount.
52.24 Territorial population.
52.25 Finalizing data; verification of data.
52.26 New units of local government.
52.27 National termination of payments; termination of eligibility.
52.28 Minimum payment.
52.29 Waiver of payments; nondelivery.
52.30 Dissolution of units of local government.
31 CFR 51.222 Subpart D -- Expenditure Prohibitions and Restrictions
52.40 Definitions.
52.41 Permissible expenditures.
52.42 Wage rates and labor standards.
52.43 Applicability of State, territorial and local law.
52.44 Expenditure time limitation.
52.45 Applicability of other Federal laws.
52.46 Interest bearing accounts.
31 CFR 51.222 Subpart E -- Nondiscrimination by Recipient Governments
52.60 Purpose.
52.61 Incorporation of general revenue sharing nondiscrimination
regulations.
31 CFR 51.222 Subpart F -- Fiscal Procedures and Auditing
52.80 Procedures applicable to the use of payments.
52.81 Auditing and evaluation.
52.82 Scope of audits.
52.83 Retention of audit workpapers.
52.84 Requirement to submit audit reports.
31 CFR 51.222 Subpart G -- Proceedings for Reduction in Payments,
Withholding, or Repayment
52.100 Incorporation of hearing procedures.
Authority: These interim regulations are issued under the authority
of sec. 214 of the Public Works Employment Act of 1976, Title II, Pub.
L. 94-369, as amended by the Intergovernmental Antirecession Assistance
Act of 1977, Title VI, Pub. L. 95-30 (42 U.S.C. 6721 et seq.) and
Treasury Department Order No. 224, dated November 15, 1976 (38 FR
3342), as amended by the Treasury Department Order No. 242 (Revised),
dated May 17, 1977.
Source: 42 FR 48546, Sept. 23, 1977, unless otherwise noted.
31 CFR 51.222 Subpart A -- General Information
31 CFR 52.0 Scope and application of regulations.
The rules and regulations of this part are prescribed for carrying
into effect Title II of the Public Works Employment Act of 1976 (Pub.
L. 94-369) as amended by the Intergovernmental Antirecession Assistance
Act of 1977 (Title VI, Pub. L. 95-30), and are applicable as of
September 23, 1977.
31 CFR 52.1 Delegation of authority.
By delegation order of the Secretary of the Treasury, the Director
shall perform the functions, exercise the powers and carry out the
duties vested in the Secretary by the Public Works Employment Act of
1976, Title II, Pub. L. 94-369, as amended. A reference to the
Director in the masculine gender shall not be construed to exclude the
feminine gender.
31 CFR 52.2 Definitions.
As used in this part (except where the context clearly indicates
otherwise, or where the terms are defined elsewhere in this part) the
following definitions shall apply:
(a) Act means Title II of the Public Works Employment Act of 1976,
Pub. L. 94-369, as amended by the Intergovernmental Antirecession
Assistance Act of 1977, Title VI, Pub. L. 95-30, 42 U.S.C. 6721, et
seq.
(b) Chief executive officer of a unit of local government means the
elected official, or the legally designated official who has the primary
responsibility for the conduct of that unit's governmental affairs, and
is the chief executive officer for purposes of the Revenue Sharing Act
and 31 CFR 51.2(b). Examples of the ''chief executive officer'' of a
unit of local government may be: The elected mayor of a municipality,
the elected county executive of a county, the chairman of a county
commission or board in a county that has no elected county executive,
the township supervisor, trustee, first selectman, chairman, city
manager, county manager, or such other official as may be designated
pursuant to law by the duly elected governing body of the unit of local
government; or the chairman, governor, chief or president (as the case
may be) of an Indian tribe or Alaskan native village.
(c) Department means the Department of the Treasury.
(d) Director means the Director of the Office of Revenue Sharing.
(e) Effective date of the Act means July 1, 1977.
(f) Governor means the Governor of any of the 50 states and the chief
executive officer of the Commonwealth of Puerto Rico, and the
territories of American Samoa, Guam, and the Virgin Islands of the
United States.
(g) Independent public accountant means independent certified public
accountant or independent public accountant licensed on or before
December 31, 1970, certified or licensed by a regulatory authority of a
State or other political subdivision of the United States.
(h) Indian tribe and Alaskan native village means the recognized
governing body of an Indian tribe or Alaskan native village which
perform substantial governmental functions. Certification to the
Director by the Secretary of the Interior (or Governor of a State in the
case of State affiliated tribes) of the recognized governing body of an
Indian tribe or an Alaskan native village performing substantial
governmental functions for purposes of the Revenue Sharing Act shall
constitute prima facie evidence of compliance with such criteria.
(i) Local government means the government of a county, municipality,
township or other unit of government within the State which:
(1) Is a unit of general government (determined on the basis of the
same principles as are used by the Bureau of the Census for general
statistical purposes and reported to the Secretary), and
(2) Performs substantial governmental functions. The term local
government includes the District of Columbia and the recognized
governing body of an Indian tribe or Alaskan native village which
performs substantial governmental functions.
(j) Payment means funds paid to a State, territory or local
government pursuant to the Act.
(k) Quarterly allocation means the amount of funds allocated to a
State, territory or local government as determined by the Director
pursuant to the Act.
(l) Recipient government means a State, territory or local government
which receives payments under the Act.
(m) Revenue Sharing Act means the State and Local Fiscal Assistance
Act of 1972 (Title I, Pub. L. 92-512), as amended by the State and Local
Fiscal Assistance Amendments of 1976 (Pub. L. 94-488).
(n) Secretary means the Secretary of the U.S. Department of the
Treasury.
(o) State government means the government of any of the 50 states.
(p) Substantial governmental function means, with respect to township
governments, that such governments have expended revenues within the
last two fiscal years (current and preceding fiscal years) and have the
present authority to expend revenues within two or more of the following
governmental expenditure categories: Education, Highways, Public
Welfare, Health and Hospitals, Police and Corrections, Fire Protection,
Sewerage and Sanitation, Natural Resources, Housing and Urban Renewal,
Transportation, Libraries, Financial Administration, General
Administration, General Public Buildings, Parks and Recreation and
Utilities.
(q) Territory means the governments of the Commonwealth of Puerto
Rico, Guam, American Samoa, and the Virgin Islands of the United States.
31 CFR 52.3 Procedure for effecting compliance.
(a) In general. Whenever the Director receives an administrative
complaint, audit report, or other information alleging violation of any
provision of this part, the time limits applicable to the conduct of an
investigation or a compliance review shall be those set forth in 31 CFR
part 51, subpart E, which are incorporated by reference into this part
wherever applicable.
(b) Determination of noncompliance. If the Director determines that
a recipient government has failed to comply substantially with any
provision of this part, other than subpart E, and after giving
reasonable notice and opportunity for a hearing to the Governor of the
State or territory or chief executive officer of the local government
pursuant to subpart G of this part, the Director shall notify the
recipient government that if it fails to take corrective action within
60 days from the date of receipt of such notification further payments
to it will be withheld until such time as the Director is satisfied that
appropriate corrective action has been taken and there is no longer any
failure to comply. Until he is so satisfied, the Director shall make no
further payents to such recipient government.
(c) Determination to delay payment. Whenever the Director determines
that a recipient govenment has failed to comply with the assurance or
reporting requirements of subpart B of this part, he may delay payments
to such recipient. A determination to delay a payment shall not be
subject to the procedure set forth in paragraph (b) of this section and
shall be in effect for such time as is necessary to achieve compliance.
31 CFR 52.4 Extension of time.
When, by subpart B, C, or D of this part, a recipient government is
required to perform an act within a specified time, the Director may
grant a request for an extension of time if in his judgment it is
necessary, appropriate and in accordance with the Act. Requests for
extensions of time shall be in writing and shall set forth the facts and
circumstances supporting the need for more time and the amount of
additional time requested.
31 CFR 52.5 Transfer of payments to secondary recipients.
Those prohibitions and restrictions set forth in subparts D, E, and F
of this part which are applicable to a recipient government's payments
continue to be applicable to such funds if they are transferred to
another governmental unit or a private organization. A violation of any
provision of such subparts by a secondary recipient shall constitute a
violation by the recipient government and the applicable penalty for
failure to comply shall be imposed on the recipient government.
31 CFR 52.5 Subpart B -- Reports and Written Communications
31 CFR 52.10 Assurances; Reports to the Director.
(a) Requisite assurances for receipt of payments. A State,
territorial or local government will receive payments only upon the
filing of a statement of assurances by the chief executive officer with
the Director. The statement of assurances provides that a recipient
government will comply with certain specific requirements of the Act and
this part with respect to the use of payments. In addition, township
governments must assure the Director that they perform substantial
governmental functions, as defined in 52.2(p) of this part.
(b) Waiver for failure to submit a statement of assurances. In
accordance with Administrative Rulings No. 76-4 (41 FR 52828) and No.
77-1 (42 FR 13892), otherwise eligible State and local governments which
did not file a statement of assurances with the Director on or before
June 1, 1977, have waived payments for the calendar quarters begining
July and October, 1976, and January and April, 1977. Payments for the
calendar quarters beginning after June 30, 1977 will be deemed to be
waived unless a properly executed statement of assurances has been
received by the Director for not more than 60 days after the beginning
of such calendar quarter.
(c) New statement of assurances. A statement of assurances may be
required to be filed with the Director for each Federal fiscal year on a
date to be determined by the Director. Nothing in this section shall
preclude the Director from requiring recipient governments to submit
additional assurances as are appropriate to enforce compliance with the
Act and the provisions of this part.
(d) Economization assurance. The governor or chief executive officer
of a recipient government shall provide an assurance on the statement of
assurances form required in paragraph (a) of this section, that
reasonable efforts have been made to achieve substantial economies in
its operations and that payments are necessary to maintain essential
services without weakening Federal Government efforts to stimulate the
economy through reductions in the Federal tax obligations.
(e) Reports. Recipient governments are required to submit reports
containing the data requested by the Director to carry out the purposes
of this part, such as the uses of payments and their fiscal impact. The
reports shall be made within the time limits and in the form and manner
specified by the Director.
31 CFR 52.11 Publication and publicity of reports; public inspection.
(a) In general. Each report filed with the Director pursuant to
52.10(e) of this part shall be published within seven days of such
filing in a newspaper of general circulation within the jurisdiction of
such government.
(b) Permissible newspapers. A newspaper is appropriate for purposes
of paragraph (a) of this section if it conforms with the newspaper
publication requirements for general revenue sharing reporting purposes
pursuant to the Revenue Sharing Act.
(c) Legal notice rules are inapplicable. The publication requirement
in paragraph (a) of this section does not require the publication of
reports as a legal notice. A recipient government may publish reports
without regard to State or local statutory requirements for the
publication of legal notices.
(d) Waiver of the publication requirement. (1) The Director may
waive the publication requirement of paragraph (a) of this section upon
receipt of a written assurance that the cost of publishing a report
exceeds 10% of the total amount of payments received by such government
during the period covered by such report. The assurance shall be
submitted to the Director at least 30 days in advance of the date
required for publication under paragraph (a) of this section. The
assurance shall also state the alternative means which would be used to
publicize the report to persons within the jurisdiction of the recipient
government.
(2) The Director may also waive the publication requirement of
paragraph (a) of this section upon receipt of a written assurance,
signed by the governor or chief executive officer of the recipient
government, which states that an alternative means of publicizing the
report is more effective to inform persons within the jurisdiction of
the recipient government of the report's contents. The assurance shall
be submitted to the Director at least 30 days in advance of the
publication date under paragraph (a) of this section. The assurance
shall also state the alternative means which would be used to publicize
the report to persons within the jurisdiction of the recipient
government.
(e) Publicity. Each recipient government, at the same time as
required for publication of reports under paragraph (a) of this section,
shall advise the news media within its geographic area, including
minority and bilingual news media, of the publication of its reports
made pursuant to paragraph (a) of this section and shall provide copies
of such reports to the news media on request.
(f) Public inspection. Each recipient government shall make
available for public inspection a copy of each of the reports required
under paragraph (a) of this section and such information as is necessary
to support the information and data submitted on each of those reports.
Such detailed information shall be available for public inspection at a
specified location during normal business hours.
31 CFR 52.12 Special reports.
(a) In general. Each recipient government shall report to the
director, in accordance with the form and time provisions of paragraph
(c) of this section, any increase or decrease in any tax rate which it
imposes and any substantial (five percent or more on an annualized
basis) reduction in the number of individuals it employs (excluding
part-time, seasonal and elected officials) or in services (five percent
or more on an annualized basis of the total operating budget allocated
to providing services) which such recipient government provides during
each calendar quarter in which a payment is received.
(b) State transfers to local governments. Each State which receives
a payment shall report to the Director, in accordance with the form and
time provisions of paragraph (c) of this section, any fiscal decision
likely to decrease the amount of intergovernmental transfers it provides
to the local governments within its boundaries as compared to the amount
of intergovernmental transfers provided during the twelve-month period
which ended June 30, 1976; together with an explanation of the reasons
for such decision.
(c) Time limitation; form. Each recipient government shall submit
the reports required in paragraphs (a) and (b) of this section upon
request of the Director not more than six months after the date on which
the decision to impose such tax rate increase or decrease, such
reduction in employment or services, or such decrease in
intergovernmental transfers is made public. The reports shall be on a
form provided by the Director.
31 CFR 52.12 Subpart C -- Adjustments and Data Factors
31 CFR 52.20 Adjustment reserve fund.
In order to make subsequent adjustments to a payment, the Director
shall establish an Antirecession Fiscal Assistance Adjustment Reserve
Fund. The Director shall set aside a percentage of the funds
appropriated for the purpose of making such payments as in his judgment
are necessary to insure that there will be sufficient funds available to
make all appropriate adjustments. Payments waived pursuant to 52.10(b)
or 52.29 of this part, shall be set aside into such Reserve Fund. The
funds reserved in this manner and any other funds which the Director may
set aside to the Reserve fund shall accumulate until the Director orders
distribution of those funds to recipient governments in accordance with
the Act.
31 CFR 52.21 Adjustments to future payments.
(a) In general. Adjustment to payments may be effected through
adjustment to subsequent payments unless this means of adjustments is
deened impractical or impossible by the Director. In the case of a
downward adjustment caused by an overpayment, the Director may demand
repayment by the recipient government of the amount determined to have
been overpaid. Overpayments shall be repaid on demand in the manner
specified by the Director.
(b) Minimum adjustment. No adjustment of any kind of less than $100
per quarter shall be made if in the judgment of the Director such
adjustment will be burdensome, costly or impractical.
(c) Adjustments due to governmental reorganizations, etc. If there
is a change due to governmental reorganizations, annexations, boundary
alterations, etc., made by the Director during a calendar quarter in the
revenue sharing amount data factor used for quarterly allocations in
that calendar quarter, the payments of recipient governments directly
affected by such change shall be adjusted for such quarter.
31 CFR 52.22 Unemployment rate data.
(a) Unemployment rates determined or assigned by the Secretary of
Labor. Except as otherwise provided in paragraphs (b) and (c) of this
section, unemployment rates used to determine quarterly allocations,
payments and adjustments thereto, national termination of payments and
termination of the eligibility of recipient governments, shall be the
unemployment rate for the appropriate calendar quarter as determined or
assigned by the Secretary of Labor for such recipient government and
reported to the Director. The unemployment rate used to determine
quarterly allocations for local governments for which the Secretary of
Labor cannot determine a local unemployment rate shall be the local
unemployment rate assigned by the Secretary of Labor. The Secretary of
Labor, at his discretion, may assign to local governments for which a
specific unemployment rate cannot be determined a labor market area
unemployment rate, balance of labor market area rate, balance of county
rate, census division rate, balance of census division rate, county
rate, or other appropriate unemployment rate for an area in which such
local government is located.
(b) Unemployment rates submitted by a Governor. The Governor of a
State may submit to the Department of Labor, Bureau of Labor Statistics
each calendar quarter, an unemployment rate for a local government
within the Governor's jurisdiction for which the Secretary of Labor
cannot determine a specific unemployment rate. The Secretary of Labor
shall assign the local unemployment rate submitted by a Governor and
shall report such rate to the Director, provided:
(1) The Governor has submitted to the Bureau of Labor Statistics the
local unemployment rate for the appropriate calendar quarter for such
local government, and such other data as specified by the Secretary of
Labor. All submitted unemployment rates shall be certified by the State
Employment Security Agency to have been developed in a manner consistent
with the methodology used by the Bureau of Labor Statistics to determine
local government unemployment rates. Such data shall be submitted by a
date specified by the Secretary of Labor;
(2) The Secretary of Labor finds that the local government
unemployment rate data submitted by the Governor has been determined in
a manner consistent with the procedures and methodology used by the
Department of Labor to determine such rates;
(3) The Governor has submitted all information requested by the
Secretary of Labor to determine whether such local government
unemployment rates have been determined in a manner consistent with the
appropriate procedures and methodology; and
(4) The unemployment rate data submitted by a Governor, to the
maximum extent technically feasible, is found by the Secretary of Labor
to be conceptually consistent with the data for the nation as a whole.
Further, the totals of unemployment and labor force for all local
governments for which unemployment rates are submitted shall sum to
State, county, labor market, census division, or other balance of area
totals of their State.
(c) Updating unemployment rates submitted by a Governor. The
Governor of each State that has submitted an unemployment rate pursuant
to paragraph (b) of this section may, for subsequent quarters, submit
updated unemployment rates certified by the State Employment Security
Agency to have been developed in accordance with the Bureau of Labor
Statistics procedures and methodology for local governments, for each
local government for which a rate was submitted, and for other local
governments within the State. These certified unemployment rates shall
be submitted to the Secretary of Labor by a date and in such form and
manner as prescribed by the Secretary of Labor. For a calendar quarter
in which unemployment rate data for local governments in a State are not
received by the Secretary of Labor from a Governor in accordance with
this section, the quarterly allocations of such local governments shall
be based on the rates assigned by the Secretary of Labor in accordance
with paragraph (a) of this section.
31 CFR 52.23 Revenue sharing amount.
(a) State revenue sharing amount. The State revenue sharing amount
shall be each State's final allocation of revenue sharing funds as
determined by the Director pursuant to 107 of the Revenue Sharing Act
for the most recently completed entitlement period prior to the calendar
quarter for which the payment is made.
(b) Local government revenue sharing amount. The local government
revenue sharing amount shall be each local government's final allocation
of revenue sharing funds as determined by the Director pursuant to 107
of the Revenue Sharing Act for the most recently completed entitlement
period prior to the calendar quarter for which the payment is made.
31 CFR 52.24 Territorial population.
The territorial population which shall be used for quarterly
allocations to the territories shall be the most recent population for
each territory as determined by the Bureau of Census and reported to the
Director. The territorial population used for quarterly allocations to
the territorial governments shall be determined by the Bureau of the
Census for the same date of record.
31 CFR 52.25 Finalizing data; verification of data.
(a) Closing unemployment rate data. Except as provided in paragraphs
(d) and (e) of this section, the unemployment rate data reported by the
Secretary of Labor to the Director shall be closed and final as of the
date payments are made to recipient governments each calendar quarter.
(b) Closing revenue sharing amount data. Except as provided in
52.21(c), and paragraphs (d), (e), and (f) of this section, the
Director's determination of a recipient government's revenue sharing
amount shall be closed and final as of the date payments are made each
calendar quarter. A revenue sharing amount determined pursuant to
52.26 of this subpart for governments without a revenue sharing
entitlement (new governments), shall be closed and final as of the date
of payment.
(c) Closing territorial population data. Except as provided in
paragraphs (d) and (e) of this section, the territorial population
reported by the Bureau of Census to the Director shall be closed and
final as of the date payments are made each calendar quarter.
(d) Time limitation of data verification. A government may file a
request for data verification with the Director on the grounds that a
processing or clerical error was made in the unemployment rate data, the
revenue sharing amount data, or the territorial population data used for
its quarterly allocation, provided such data verification request is
received by the Director within 21 days from the date such data is
mailed by the director to the recipient government for such calendar
quarter. Adjustments due to data errors discovered pursuant to this
section may be made to the payment of any government for which such data
was used for quarterly allocation purposes. Data verification of
unemployment rates does not include variances in rates due to quartlerly
or annual revisions by the Secretary of Labor after the date of payment
for a calendar quarter. Nothing in this section shall affect the
entitlement of governments under the Revenue Sharing Act.
(e) Unemployment rate data verification by the Director or the Bureau
of Labor Statistics. Errors in unemployment rate data used for payments
that are discovered by the Director or the Bureau of Labor statistics
within 21 days from the date data is mailed to recipient governments
each calendar quarter shall result in appropriate adjustments to the
payment of a recipient government. Adjustments pursuant to this section
shall be in accordance with 52.21(b) of this part.
(f) Revenue sharing amount data verification by the Director. When
the Director approves a revision of a revenue sharing entitlement for
purposes of the Revenue Sharing Act, an appropriate adjustment in
accordance with 52.21(b) of this part shall be made to payments of a
recipient government, where such payments were computed based upon the
incorrect revenue sharing entitlement.
(43 FR 9807, Mar. 10, 1978)
31 CFR 52.26 New units of local government.
New units of local government. A new local government which is
reported by the Bureau of the Census to the Director as being an active
government, and which otherwise qualifies for payment, shall be eligible
for a payment for the next succeeding calendar quarter in which payments
are made after its activation date. If such local government is a
successor government, it shall be eligible to receive the payment of the
local government to which it succeeded in accordance with the conditions
of the succession. The Director may determine a revenue sharing amount
for such government based on the most recent revenue sharing data
available. A local government subject to this section shall not receive
a payment until a statement of assurances is filed with the Director in
accordance with 52.10 of this part.
31 CFR 52.27 National termination of payments; termination of
eligibility.
(a) National termination of payments. Notwithstanding the existence
of higher State or local rates of unemployment, or the existence of
State or local excess unemployment percentages, payments will not be
made in any calendar quarter, if:
(1) The average rate of national unemployment during the most
recently completed calendar quarter which ended three months before the
beginning of such calendar quarter did not exceed six percent, or
(2) The rate of national unemployment for the last month of the most
recently completed calendar quarter which ended three months before the
beginning of such calendar quarter did not exceed six percent.
(b) Termination of eligibility. Notwithstanding the existence of a
rate of national unemployment in excess of six percent, payments will
not be made to any State, territory or local government for any calendar
quarter if:
(1) The average rate of unemployment as assigned or determined by the
Secretary of Labor for such government for the most recently completed
calendar quarter which ended three months before the beginning of such
calendar quarter was less than 4.5 percent; or
(2) The rate of unemployment as assigned or determined by the
Secretary of Labor for such government for the last month of the most
recently completed calendar quarter which ended three months before the
beginning of such calendar quarter did not exceed 4.5 percent.
31 CFR 52.28 Minimum payment.
If the amount of a quarterly allocation to any local government is
less than $100 in any calendar quarter, then no amount shall be
allocated for such local government for that period and such funds will
be reallocated to recipient governments within that quarter pursuant to
the Act.
31 CFR 52.29 Waiver of payments; nondelivery.
(a) Waiver. Any recipient government may waive a payment provided
the chief executive officer, with the consent of the governing body of
such government, notifies the Director in writing of its intention to
waive and returns the payment to the Director. A waiver shall be
effective until revoked pursuant to a written request of the chief
executive oficer of the recipient government with the consent of the
governing body. A new statement of assurances may be required whenever
the statement of assurances previously submitted by such government has
been invalidated, or is outdated.
(b) Nondelivery. A payment which is returned by the U.S. Postal
Service to the Office of Revenue Sharing as being non-deliverable
because of incorrect address information, or which is unclaimed for any
reason, shall be retained by the Director until the payments can be
delivered by other means to the recipient government.
31 CFR 52.30 Dissolution of units of local government.
A unit of local government which dissolved, was absorbed or ceased to
exist during a calendar quarter in which a payment is received may
expend such payments to maintain basic services, provided, (a) the
recipient government is in the process of winding-up its governmental
affairs, and (b) continues to provide basic services during this
winding-up period. When these two conditions are not met by a recipient
government, the payments must be transferred to the successor local
government with capacity to accept and use such payments. If the
recipient does not know the identity of such successor government, the
payment shall be returned to the Director.
31 CFR 52.30 Subpart D -- Expenditure Prohibitions and Restrictions
31 CFR 52.40 Definitions.
As used in this part, the term:
(a) Basic service means an expenditure which may reasonably be
classified under one of the following categories: Education, Highways,
Public Welfare, Health and Hospitals, Police and Corrections, Fire
Protection, Sewage and Sanitation, Natural Resources, Housing and Urban
Renewal, Transportation, Libraries, Financial Administration, General
Administration, General Public Buildings, Parks and Recreation, and
Utilities.
(b) Customarily provided means a basic service has been provided by
the Federal government, or a State, territorial or local government to
persons under the jurisdiction of the recipient government during the
current or preceeding fiscal year (of the recipient government) in which
a payment is received by such recipient government.
(c) Normal supplies means those commodities that meet one or more of
the following conditions:
(1) It is consumed when used; or
(2) It has a per unit purchase price of $1000 or less; or
(3) It has an estimated useful life, in the reasonable discretion of
the recipient government, of less than one year; or
(4) It is expendable, that is, if the article is damaged or some of
its parts are lost or worn out, it is usually more feasible to replace
it with an entirely new unit rather than repair it; or
(5) It loses its original shape or appearance with use.
Normal supplies include, but are not limited to, office supplies,
repair and maintenance supplies, operating supplies (such as fuel) and
small tools.
(d) Repairs means expenditures made for the purpose of maintaining a
structure or other capital asset in ordinary efficient operating
condition, but that does not substantially add to the utility of the
structure or asset, appreciably prolong its useful life or adapt it for
a substantially different use.
31 CFR 52.41 Permissible expenditures.
(a) In general. Payments shall be obligated, appropriated and
expended for the maintenance of levels of employment and basic services
which have been customarily provided. Payments shall be used for the
acquisition of supplies or materials or constuction only to the extent
that such expenditures are for normal supplies or repairs which, in the
reasonable discretion of the recipient government, are necessary to
maintain basic services. Payments may not be used for new construction
or renovations which are not repairs or for supplies or equipment
(including those used for repairs) which are not normal supplies, as
these terms are defined in 52.40 of this subpart. New programs may be
initiated with payments, provided such programs are for a basic service
which has been customarily provided.
(b) Repayment of debt. Payments may be used to pay the principal or
interest on debt obligations of a recipient government, regardless of
the date the debt was incurred, provided the proceeds of the
indebtedness were expended in accordance with this part. For example,
payments shall not be used for principal or interest charges on a debt
incurred by a recipient government to finance a construction project.
(c) Personnel expenses. Payments may be expended for costs incurred
on behalf of personnel employed in the maintenance of basic services.
This includes but is not limited to the salary (and increases thereof),
fringe benefits, social security payments, and retirement system
contributions which a recipient government is obligated to finance for
employees engaged in the delivery of basic services.
31 CFR 52.42 Wage rates and labor standards.
(a) Laborers and mechanics. All laborers and mechanics employed by
contractors on all repair projects, including painting and decorating,
costing in excess of $2000 and funded in whole or in part with payments
shall be paid wages at rates not less than those prevailing on projects
of a character similar to the contract work in the locality as
determined by the Secretary of Labor in accordance with the Davis-Bacon
Act (40 U.S.C. 276(a), 276(a-5)); and are covered by labor standards
specified by the Secretary of Labor pursuant to 29 CFR parts 1, 3, 5,
and 7. The Secretary of Labor shall have, with respect to such labor
standards, the authority and functions set forth in Reorganization Plan
No. 14 of 1950 (15 FR 3176) and section 2 of the Act of June 13, 1934,
as amended (40 U.S.C. 276c).
(b) Requests for wage determinations. In situations where the
Davis-Bacon Act standards are applicable in accordance with paragraph
(a) of this section, the recipient government must ascertain the U.S.
Department of Labor wage rate determination for each intended
construction project and insure that the wage rates and the contract
clauses required by 29 CFR 5.5 and 49 CFR 5(a.3) are incorporated in the
contract specifications. The recipient government must also satisfy
itself that the bidder is aware of his labor standard responsibilities
under the Davis-Bacon Act. Wage rate determinations may be obtained by
filing a standard Form 308 with the Employment Standards Administration
of the applicable regional office of the United States Department of
Labor at least 30 days before the invitation for bids, or in the case of
projects covered by general wage rate determinations, the appropriate
wage rate may be obtained from the Federal Register.
(c) Access to sources of information. Each recipient government
shall permit access by authorized representatives of the Director, the
Secretary of Labor, the Comptroller General, and Department of Justice
during normal business hours to its facilities, books, records,
accounts, personnel, and other sources of information as may be relevant
to a determination of whether the recipient government is complying with
this section. Where any information required of a recipient government
is in the exclusive possession of any other agency, institution, or
person, and such agency, institution, or person, fails or refuses to
furnish such information, the recipient government shall so certify in
its report and shall set forth what efforts it has made to obtain the
information.
(d) Compliance reports. Each recipient government shall keep such
records and submit on request of the Director timely, complete and
accurate compliance reports at such times, in such form, and containing
such information, as the Director may determine to be necessary or
useful to ascertain whether the recipient government has complied or is
complying with this section.
31 CFR 52.43 Applicability of State, territorial and local law.
(a) In general. Each recipient government shall spend payments for
basic services in accordance with the State, territorial or local laws
and procedures applicable to the expenditure of its own source revenues.
Payments shall be expended only for purposes which the recipient
government may finance with its own source revenues. Payments shall be
appropriated and obligated pursuant to the budgetary process applicable
to its own source revenues. Therefore, the recipient government shall
provide for the expenditure of payments not solely by the executive, but
also by the legislative branch, if that is the budgetary process used by
the recipient government to provide for expenditure of its own source
revenues.
(b) Waiver. The requirements of paragraph (a) of this section may be
waived temporarily by the Director, upon determination that it is not
possible for the recipient government to comply with the budgetary
process applicable to the expenditure of its own source revenues within
the six month appropriation or obligation time limitation set forth in
52.44 of this part. The Director may grant such a waiver only when the
chief executive officer of the recipient government has submitted a
written request for a waiver to the Director at least 30 days prior to
the last date for obligating or appropriating payments in accordance
with 52.44 of this part. Such request must set forth:
(1) The facts and circumstances which would make compliance with both
the requirements of paragraph (a) of this section and 52.44 not
possible;
(2) An explanation of the alternative budgetary process which would
be utilized for the payment if the waiver is granted. The alternative
budgetary process shall be modeled to the maximum extent on the process
applicable to the recipient government's own source revenues, and shall
be developed by the chief executive officer.
(3) An assurance that the recipient government has published, unless
a waiver of this publication requirement is approved in accordance with
42.11(d) of this part, a public notice of this waiver required in a
newspaper of general circulation within its geographic area. The
newspaper used for such publication shall conform with the requirements
in 52.11 of this part. The notice shall be published not less than 10
calendar days before the waiver request is mailed to the Director, and
shall state the following:
(i) The requirements of paragraph (a) of this section and 52.44;
(ii) The legal or practical circumstances that prevent the rcipient
government from complying with such requirements;
(iii) That the chief executive officer of the recipient government
intends to request the Director of the Office of Revenue Sharing to
waive the requirement that payments must be spent in accordance with the
budgetary procedures applicable to the expenditure of such government's
own source revenues within six months of the day after receipt, as
required by paragraph (a) of this section, and 52.44;
(iv) The alternative budgetary process which would be utilized if the
Director grants requested the waiver for the appropriation or obligation
of the payments; and
(v) That interested persons are encouraged to provide written
comments on this waiver request to the chief executive officer of the
recipient government and the Director of the Office of Revenue Sharing.
The address of the Office of Revenue Sharing shall also be stated in the
public notice.
31 CFR 52.44 Expenditure time limitation.
Each recipient government shall appropriate or obligate payments for
basic services before the end of the six-month period which begins the
day following receipt of a payment.
31 CFR 52.45 Applicability of other Federal laws.
Except as otherwise provided in the Act or this part, payments are
not subject to Federal civil laws applicable only to Federally assisted
programs or to Federal grants, loans or contracts. The Criminal Code of
the United States (Title 18, U.S.C.) shall be applicable to all criminal
offenses relating to the expenditure, accounting or reporting of
payments by a recipient government receiving such payments under the Act
or this part.
31 CFR 52.46 Interest bearing accounts.
Recipient governments may temporarily deposit their payments in
interest bearing accounts. Where payments are held in an interest
bearing account, the interest earned on those funds is subject to the
expenditure restrictions and prohibitions of the Act and this part.
31 CFR 52.46 Subpart E -- Nondiscrimination by Recipient Governments
31 CFR 52.60 Purpose.
The purpose of this subpart is to implement section 207 of the Act
which provides that no person in the United States shall, on the ground
of race, color, national origin, or sex be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under
any program or activity of a State, territorial or local government,
which government receives payments. Any prohibition against
discrimination on the basis of age under the Age Discrimination Act of
1975 or with respect to an otherwise qualified handicapped individual as
provided in section 504 of the Rehabilitation Act of 1973 shall also
apply to any such program or activity. Any prohibition against
discrimination on the basis of religion, or any exemption from such
prohibition, as provided in the Civil Rights Act of 1964 or Title VIII
of the Act of April 11, 1968, commonly referred to as the Civil Rights
Act of 1968, shall also apply to any such program or activity.
31 CFR 52.61 Incorporation of general revenue sharing nondiscrimination
regulations.
The nondiscrimination provisions of 207 of the Act are substantively
identical to the corresponding nondiscrimination requirements in
sections 122, 124, and 125 of the Revenue Sharing Act. Therefore, the
regulations promulgated in 31 CFR part 51, subpart E, by the Director
pursuant to the Revenue Sharing Act are hereby incorporated by reference
into this subpart and shall apply to payments to recipient governments.
31 CFR 52.61 Subpart F -- Fiscal Procedures and Auditing
31 CFR 52.80 Procedures applicable to the use of payments.
A recipient government which receives payments under the Act shall:
(a) Provide for the expenditure of payments in accordance with 52.43
of this part.
(b) Maintain its fiscal accounts in a manner sufficient to:
(1) Permit the reports required by the Director to be prepared
therefrom, and
(2) Permit the tracing of payments to a level of expenditure adequate
to establish that such funds have not been used in violation of the
restrictions and prohibitions of this part. Tracing of payments
requires that vouchers in support of expenditures funded by the Act
shall be identified. Such tracing of payments can be made by one of the
following three means:
(i) Maintain a separate set of fund accounts;
(ii) Maintain a separate bank account; or
(iii) Keep a memorandum record of the voucher numbers and amounts for
the expenditures funded by payments.
(c) Account for payments using at a minimum the same fiscal
accounting and internal audit procedures as are used by the recipient
government for expenditures from its own source revenues.
(d) Provide to the Director and to the Comptroller General of the
United States, on reasonable notice, access to and the right to examine
such books, documents, papers or records as the Director may reasonably
require for the purpose of reviewing compliance with the Act and the
regulations of this part or, in the case of the Comptroller General, as
the Comptroller General may reasonably require for the purpose of
reviewing compliance and operations under the Act.
31 CFR 52.81 Auditing and evaluation.
(a) In general. The Director shall provide for such auditing and
evaluation as may be necessary to insure that recipient governments
comply with the Act and the regulations of this part. Audits, reviews
and evaluations made under this section shall be conducted in a manner
which is consistent with procedures required of recipients of revenue
sharing entitlements by regulations in 31 CFR part 51, subpart F,
published pursuant to the Revenue Sharing Act.
(b) Audits required. Payments shall be included as a part of any
independent audit of a State or local government in accordance with
generally accepted auditing standards as required under the Revenue
Sharing Act pursuant to regulations set forth in 31 CFR part 51, subpart
F.
31 CFR 52.82 Scope of audits.
(a) In general. The scope of each audit required under 52.81(b) of
this part shall be of the same financial type as provided by revenue
sharing audit regulations (31 CFR part 51, subpart F). There shall also
be included a compliance type audit as described in ''The Standards for
Audit of Governmental Organizations, Programs, Activities & Functions'',
issued in 1972 by the Comptroller General of the United States, and as
described further in audit guides published by the Office of Revenue
Sharing.
31 CFR 52.83 Retention of audit workpapers.
Audit workpapers and related audit reports shall be retained for
three years after the issuance of the audit report, and shall be
available upon request to the Director and the Comptroller General or to
their representatives.
31 CFR 52.84 Requirement to submit audit reports.
The Director may, upon request, require the chief executive officer
of a recipient government to submit a copy of its audit reports.
31 CFR 52.84 Subpart G -- Proceedings for Reduction in Payments, Withholding, or Repayment
31 CFR 52.100 Incorporation of hearing procedures.
The regulations appearing in 31 CFR part 51, subpart G,
51.200-51.225, governing procedure and practice requirements for
reasonable notice and opportunity for a hearing, are hereby incorporated
by reference into this subpart to the extent they are consistent with
the Act.
31 CFR 52.100 PART 56 -- DOMESTIC GOLD AND SILVER OPERATIONS SALE OF
SILVER
Sec.
56.1 Conditions upon which silver will be sold.
56.2 Sales price.
Authority: Sec. 209, 79 Stat. 257; 31 U.S.C. 405a-1.
31 CFR 56.1 Conditions upon which silver will be sold.
The General Services Administration, as agent for the Treasury
Department, will conduct periodic sales of silver as agreed upon between
GSA and the Treasury Department. Sales will be under competitive
bidding procedures established by agreement between GSA and the Treasury
Department. Details of the bidding and selling procedures are
obtainable by telephone or by writing to General Services
Administration, Property Management and Disposal Service, Industry
Materials Division, Metals Project, Washington, DC 20405.
(32 FR 13380, Sept. 22, 1967)
31 CFR 56.2 Sales price.
Sales of silver will be at prices offered through the competitive
bidding procedures referred to in 56.1, and accepted by the GSA.
(32 FR 13380, Sept. 22, 1967)
Note: Subject to the provisions of Pub. L. 90-29, approved June 24,
1967, silver certificates will continue to be exchangeable for silver on
demand until June 24, 1968, and as specified in the first paragraph of
the notice appearing at 29 FR 3819, March 27, 1964.
31 CFR 56.2 PART 91 -- REGULATIONS GOVERNING CONDUCT IN OR ON THE
BUREAU OF THE MINT BUILDINGS AND GROUNDS
Sec.
91.1 Authority.
91.2 Applicability.
91.3 Recording presence.
91.4 Preservation of property.
91.5 Compliance with signs and directions.
91.6 Nuisances.
91.7 Gambling.
91.8 Alcoholic beverages, narcotics, hallucinogenic and dangerous
drugs.
91.9 Soliciting, vending, debt collection, and distribution of
handbills.
91.10 Photographs.
91.11 Dogs and other animals.
91.12 Vehicular and pedestrian traffic.
91.13 Weapons and explosives.
91.14 Penalties and other law.
Authority: 5 U.S.C. 301, by delegation from the Administrator of
General Services, 35 FR 14426, and Treasury Department Order 177-25
(Revision 2), 38 FR 21947.
Source: 34 FR 503, Jan. 14, 1969, unless otherwise noted.
31 CFR 91.1 Authority.
The regulations in this part governing conduct in and on the Bureau
of the Mint buildings and grounds located as follows: U.S. Mint,
Colfax, and Delaware Streets, Denver, Colorado; U.S. Bullion
Depository, Fort Knox, Kentucky; U.S. Assay Office, 32 Old Slip New
York, New York; U.S. Mint, 5th and Arch Streets, Philadelphia,
Pennsylvania; U.S. Assay Office, 155 Hermann Street, and the Old U.S.
Mint Building, 88 Fifth Street, San Francisco, California; and U.S.
Bullion Depository, West Point, New York; are promulgated pursuant to
the authority vested in the Secretary of the Treasury, including 5
U.S.C. 301, and that vested in him by delegation from the Administrator
of General Services, 38 FR 20650 (1973), and in accordance with the
authority vested in the Director of the Mint by Treasury Department
Order No. 177-25 Revision 2), dated August 8, 1973, 38 FR 21947 (1973).
(38 FR 24897, Sept. 11, 1973)
31 CFR 91.2 Applicability.
The regulations in this part apply to the buildings and grounds of
the Bureau of the Mint located as follows: U.S. Mint, Colfax and
Delaware Streets, Denver, Colorado; U.S. Bullion Depository, Fort Knox,
Kentucky; U.S. Assay Office, 32 Old Slip, New York, New York; U.S.
Mint, Fifth and Arch Streets, Philadelphia, Pennsylvania; U.S. Assay
Office, 155 Hermann Street, and the Old U.S. Mint Building, 88 Fifth
Street, San Francisco, California; and U.S. Bullion Depository, West
Point, New York; and to all persons entering in or on such property.
Unless otherwise stated herein, the Bureau of the Mint buildings and
grounds shall be referred to in these regulations as the ''property''.
(38 FR 24897, Sept. 11, 1973)
31 CFR 91.3 Recording presence.
Except as otherwise ordered, the property shall be closed to the
public during other than normal working hours. The property shall also
be closed to the public when, in the opinion of the senior supervising
official of any Bureau of the Mint establishment covered by these
regulations, or his delegate, an emergency situation exists, and at such
other times as may be necessary for the orderly conduct of the
Government's business. Admission to the property during periods when
such property is closed to the public will be limited to authorized
individuals who will be required to sign the register and/or display
identification documents when requested by the guard.
31 CFR 91.4 Preservation of property.
It shall be unlawful for any person without proper authority to
wilfully destroy, damage, deface, or remove property or any part thereof
or any furnishings therein.
31 CFR 91.5 Compliance with signs and directions.
Persons in and on the property shall comply with the instructions of
uniformed Bureau of the Mint guards (U.S. Special Policemen), other
authorized officials, and official signs of a prohibitory or directory
nature.
31 CFR 91.6 Nuisances.
The use of loud, abusive, or profane language, unwarranted loitering,
unauthorized assembly, the creation of any hazard to persons or things,
improper disposal of rubbish, spitting, prurient prying, the commission
of any obscene or indecent act, or any other disorderly conduct on the
property is prohibited. The throwing of any articles of any kind in,
upon, or from the property and climbing upon any part thereof, is
prohibited. The entry, without specific permission, upon any part of
the property to which the public does not customarily have access, is
prohibited.
31 CFR 91.7 Gambling.
(a) Participating in games for money or other property, the operation
of gambling devices, the conduct of a lottery or pool, the selling or
purchasing of numbers tickets, or any other gambling in or on the
property, is prohibited.
(b) Possession in or on the property of any numbers slip or ticket,
record, notation, receipt, or other writing of a type ordinarily used in
any illegal form of gambling such as a tip sheet or dream book, unless
explained to the satisfaction of the head of the bureau or his delegate,
shall be prima facie evidence that there is participation in an illegal
form of gambling in or on such property.
(34 FR 503, Jan. 14, 1969, as amended at 36 FR 3523, Feb. 26, 1971)
31 CFR 91.8 Alcoholic beverages, narcotics, hallucinogenic and
dangerous drugs.
Entering or being on the property, or operating a motor vehicle
thereon by a person under the influence of alcoholic beverages,
narcotics, hallucinogenic or dangerous drugs is prohibited. The use of
any narcotic, hallucinogenic or dangerous drug in or on the property is
prohibited. The use of alcoholic beverages in or on the property is
prohibited except on occasions and on property upon which the Director
of the Mint has for appropriate official uses granted and exemption
permit in writing.
(38 FR 24898, Sept. 11, 1973)
31 CFR 91.9 Soliciting, vending, debt collection, and distribution of
handbills.
The unauthorized soliciting of alms and contributions, the commercial
soliciting and vending of all kinds, the display or distribution of
commercial advertising, or the collecting of private debts, in or on the
property, is prohibited. This rule does not apply to Bureau of the Mint
concessions or notices posted by authorized employees on the bulletin
boards. Distribution of material such as pamphlets, handbills, and
flyers is prohibited without prior approval from the Director of the
Mint, or the delegate of the Director.
31 CFR 91.10 Photographs.
The taking of photographs on the property is prohibited, without the
written permission of the Director of the Mint.
31 CFR 91.11 Dogs and other animals.
Dogs and other animals, except seeing-eye dogs, shall not be brought
upon the property for other than official purposes.
31 CFR 91.12 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on the property shall drive in a
careful and safe manner at all times and shall comply with the signals
and directions of guards and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms,
or fire hydrants in or on the property is prohibited.
(c) Parking in or on the property is not allowed without a permit or
specific authority. Parking without authority, parking in unauthorized
locations or in locations reserved for other persons or continuously in
excess of 8 hours without permission, or contrary to the direction of a
uniformed Bureau of the Mint guard, or of posted signs, is prohibited.
(d) This paragraph may be supplemented from time to time with the
approval of the Director of the Mint, or the delegate of the Director,
by the issuance and posting of such specific traffic directives as may
be required and when so issued and posted such directives shall have the
same force and effect as if made a part hereof.
31 CFR 91.13 Weapons and explosives.
No person while on the property shall carry firearms, other dangerous
or deadly weapons, or explosives, either openly or concealed, except for
official purposes.
31 CFR 91.14 Penalties and other law.
Whoever shall be found guilty of violating any of the regulations in
this part while on the property is subject to a fine of not more than
$50, or imprisonment of not more than 30 days, or both (40 U.S.C.
318c). Nothing contained in the regulations in this part shall be
construed to abrogate any other Federal laws or regulations or those of
any State or municipality applicable to the property referred to in
91.2 and governed by the regulations in this part.
31 CFR 91.14 PART 92 -- BUREAU OF THE MINT OPERATIONS AND PROCEDURES
Sec.
92.1 Manufacture of medals.
92.2 Sale of ''list'' medals.
92.3 Manufacture and sale of ''proof'' coins.
92.4 Uncirculated Mint Sets.
92.5 Procedure governing availability of Bureau of the Mint records.
92.6 Appeal.
Authority: 5 U.S.C. 301.
Source: 47 FR 56353, Dec. 16, 1982, unless otherwise noted.
31 CFR 92.1 Manufacture of medals.
With the approval of the Director of the Mint, dies for medals of a
national character designated by Congress may be executed at the
Philadelphia Mint, and struck in such field office of the Mints and
Assay Offices as the Director shall designate.
31 CFR 92.2 Sale of ''list'' medals.
Medals on the regular Mint list, when available, are sold to the
public at a charge sufficient to cover their cost, and to include
mailing cost when mailed. Copies of the list of medals available for
sale and their selling prices may be obtained from the Director of the
Mint, Washington, DC.
31 CFR 92.3 Manufacture and sale of ''proof'' coins.
''Proof'' coins, i.e., coins prepared from blanks specially polished
and struck, are made as authorized by the Director of the Mint and are
sold at a price sufficient to cover their face value plus the additional
expense of their manufacture and sale. Their manufacture and issuance
are contingent upon the demands of regular operations. Information
concerning availability and price may be obtained from the Director of
the Mint, Treasury Department, Washington, DC 20220.
31 CFR 92.4 Uncirculated Mint Sets.
Uncirculated Mint Sets, i.e., specially packaged coin sets containing
one coin of each denomination struck at the Mints at Philadelphia and
Denver, and the Assay Office at San Francisco, will be made as
authorized by the Director of the Mint and will be sold at a price
sufficient to cover their face value plus the additional expense of
their processing and sale. Their manufacture and issuance are
contingent upon demands of regular operations. Information concerning
availability and price may be obtained from the Director of the Mint,
Treasury Department, Washington, DC 20220.
31 CFR 92.5 Procedure governing availability of Bureau of the Mint
records.
(a) Regulations of the Office of the Secretary adopted. The
regulations on the Disclosure of Records of the Office of the Secretary
and other bureaus and offices of the Department issued under 5 U.S.C.
301 and 552 and published as part 1 of this title, 32 FR No. 127, July
1, 1967, except for 1.7 of this title entitled ''Appeal,'' shall govern
the availability of Bureau of the Mint records.
(b) Determination of availability. The Director of the Mint
delegates authority to the following Mint officials to determine, in
accordance with part 1 of this title, which of the records or
information requested is available, subject to the appeal provided in
92.6: The Deputy Director of the Mint, Division Heads in the Office of
the Director, and the Superintendent or Officer in Charge of the field
office where the record is located.
(c) Requests for identifiable records. A written request for an
identifiable record shall be addressed to the Director of the Mint,
Washington, DC 20220. A request presented in person shall be made in
the public reading room of the Treasury Department, 15th Street and
Pennsylvania Avenue, NW, Washington, DC, or in such other office
designated by the Director of the Mint.
31 CFR 92.6 Appeal.
Any person denied access to records requested under 92.5 may file an
appeal to the Director of the Mint within 30 days after notification of
such denial. The appeal shall provide the name and address of the
appellant, the identification of the record denied, and the date of the
original request and its denial.
31 CFR 92.6 PART 100 -- EXCHANGE OF PAPER CURRENCY AND COIN
Sec.
100.2 Scope of regulations; transactions effected through Federal
Reserve banks and branches; distribution of coin and currencies.
31 CFR 92.6 Subpart A -- In General
100.3 Lawfully held coins and currencies in general.
100.4 Gold coin and gold certificates in general.
31 CFR 92.6 Subpart B -- Exchange of Mutilated Paper Currency
100.5 Mutilated paper currency.
100.6 Destroyed paper currency.
100.7 Treasury's liability.
100.8 Packaging of mutilated currency.
100.9 Where mutilated currency should be transmitted.
31 CFR 92.6 Subpart C -- Exchange of Coin
100.10 Exchange of uncurrent coins.
100.11 Exchange of bent and partial coins.
100.12 Exchange of fused and mixed coins.
100.13 Criminal penalties.
31 CFR 92.6 Subpart D -- Other Information
100.16 Exchange of paper and coin to be handled through Federal
Reserve banks and branches.
100.17 Location of Federal Reserve banks and branches.
100.18 Counterfeit notes to be marked; ''redemption'' of notes
wrongfully so marked.
100.19 Disposition of counterfeit notes and coins.
Authority: Sec. 1, 49 Stat. 938; 31 U.S.C. 773a.
Source: 47 FR 32044, July 23, 1982, unless otherwise noted.
31 CFR 100.2 Scope of regulations; transactions effected through
Federal Reserve banks and branches; distribution of coin and
currencies.
The regulations in this part govern the exchange of the coin and
paper currency of the United States (including national bank notes and
Federal Reserve bank notes in process of retirement and Federal Reserve
notes). Under authorization in the Act approved May 29, 1920, 41 Stat.
655 (31 U.S.C. 476), the Secretary of the Treasury transferred to the
Federal Reserve banks and branches the duties and functions performed by
the former Assistant Treasurers of the United States in connection with
the exchange of paper currency and coin of the United States. Except
for the duties in this respect to be performed by the Treasurer of the
United States and the Director of the Mint, as may be indicated from
time to time by the Secretary of the Treasury, exchanges of the paper
currency and coin of the United States and the distribution and
replacement thereof will, so far as practicable, be effected through the
Federal Reserve banks and branches. The Federal Reserve banks and
branches are authorized to distribute available supplies of coin and
currency to depository institutions, as that term is defined in section
103 of the Monetary Control Act of 1980 (Pub. L. 96-221). As authorized
by section 107 of the Act, transportation of coin and currency and coin
wrapping services will be provided according to a schedule of fees
established by the Board of Governors of the Federal Reserve System.
Inquiries by depository institutions regarding distribution and related
services should be addressed to the Federal Reserve bank of the district
where the institution is located.
31 CFR 100.2 Subpart A -- In General
31 CFR 100.3 Lawfully held coin and currencies in general.
The official agencies of the Department of the Treasury will continue
to exchange lawfully held coins and currencies of the United States,
dollar for dollar, for other coins and currencies which may be lawfully
acquired and are legal tender for public and private debts. Paper
currency of the United States which has been falsely altered and coins
altered to render them for use as other denominations will not be
redeemed since such currency and coins are subject to forfeiture under
Title 18, United States Code, section 492. Persons receiving such
currency and coins should notify immediately the nearest local office of
the U.S. Secret Service of the Department of the Treasury, and hold the
same pending advice from the Service.
31 CFR 100.4 Gold coin and gold certificates in general.
Gold coins, and gold certificates of the type issued before January
30, 1934, are exchangeable, as provided in this part, into other
currency or coin which may be lawfully issued.
31 CFR 100.4 Subpart B -- Exchange of Mutilated Paper Currency
31 CFR 100.5 Mutilated paper currency.
(a) Lawfully held paper currency of the United States which has been
mutilated will be exchanged at face amount if clearly more than one-half
of the original whole note remains. Fragments of such mutilated
currency which are not clearly more than one-half of the original whole
note will be exchanged at face value only if the Director, Bureau of
Engraving and Printing, Department of the Treasury, is satisfied that
the missing portions have been totally destroyed. The Director's
judgment shall be based on such evidence of total destruction as is
necessary and shall be final.
31 CFR 100.5 Definitions
(1) Mutilated currency is currency which has been damaged to the
extent that (i) one-half or less of the original note remains or (ii)
its condition is such that its value is questionable and the currency
must be forwarded to the Treasury Department for examination by trained
experts before any exchange is made.
(2) Unfit currency is currency which is unfit for further circulation
because of its physical condition such as torn, dirty, limp, worn or
defaced. Unfit currency should not be forwarded to the Treasury, but
may be exchanged at commercial banks.
(47 FR 32044, July 23, 1982, as amended at 56 FR 10170, Mar. 11,
1991)
31 CFR 100.6 Destroyed paper currency.
No relief will be granted on account of lawfully held paper currency
of the United States which has been totally destroyed.
31 CFR 100.7 Treasury's liability.
(a) Payment will be made to lawful holders of mutilated currency at
full value when:
(1) Clearly more than 50% of a note identifiable as United States
currency is present; or
(2) Fifty percent or less of a note identifiable as United States
currency is present and the method of mutilation and supporting evidence
demonstrate to the satisfaction of the Treasury that the missing
portions have been totally destroyed.
(b) No payments will be made when:
(1) Fragments and remnants presented are not identifiable as United
States currency; or
(2) Fragments and remnants presented which represent 50% or less of a
note are identifiable as United States currency but the method of
destruction and supporting evidence do not satisfy the Treasury that the
missing portion has been totally destroyed.
(c) All cases will be handled under proper procedures to safeguard
the funds and interests of the claimant. In some cases, the amount
repaid will be less than the amount claimed. In other cases, the amount
repaid may be greater. The amount paid will be determined by an
examination made by trained mutilated currency examiners and governed by
the above criteria.
(d) The Director of the Bureau of Engraving and Printing shall have
final authority with respect to settlements for mutilated currency
claims.
(47 FR 32044, July 23, 1982, as amended at 56 FR 10170, Mar. 11,
1991)
31 CFR 100.8 Packaging of mutilated currency.
Mutilated currency examiners are normally able to determine the value
of mutilated currency when it has been carefully packed and boxed as
described below:
(a) Regardless of the condition of the currency, do not disturb the
fragments more than is absolutely necessary.
(b) If the currency is brittle or inclined to fall apart, pack it
carefully in cotton and box it as found, without disturbing the
fragments, if possible.
(c) If the money was in a purse, box, or other container when
mutilated, it should be left therein, if possible, in order to prevent
further deterioration of the fragments or from their being lost.
(d) If it is absolutely necessary to remove the fragments from the
container, send the container with the currency and any other contents
found, except as noted in paragraph (h) of this section.
(e) If the money was flat when mutilated, do not roll or fold.
(f) If the money was in a roll when mutilated, do not attempt to
unroll or straighten.
(g) If coin or any other metal is mixed with the currency, remove
carefully. Do not send coin or other metal in the same package with
mutilated paper currency, as the metal will break up the currency. Coin
should be forwarded as provided in 100.12 (c) and (d).
(h) Any fused or melted coin should be sent to: Superintendent,
United States Mint, P.O. Box 400, Philadelphia, PA 19105.
31 CFR 100.9 Where mutilated currency should be transmitted.
Mutilated currency shipments must be addressed as follows:
Department of the Treasury, Bureau of Engraving and Printing, OCS, Room
344A, Post Office Box 37048, Washington, DC 20013.
(47 FR 32044, July 23, 1982, as amended at 56 FR 10170, Mar. 11,
1991)
31 CFR 100.9 Subpart C -- Exchange of Coin
31 CFR 100.10 Exchange of uncurrent coins.
(a) Definition. Uncurrent coins are whole U.S. coins which are
merely worn or reduced in weight by natural abrasion yet are readily and
clearly recognizable as to genuineness and denomination and which are
machine countable.
(b) Redemption basis. Uncurrent coins will be redeemed at face
value.
(c) Criteria for acceptance. Uncurrent coins, forwarded for
redemption at face value, must be shipped at the expense and risk of the
owner. Shipments of subsidiary or minor coins for redemption at face
value should be sorted by denomination into packages in sums of
multiples of $20. Not more than $1,000 in any silver or clad coin, $200
in 5-cent pieces, or $50 in 1-cent pieces should be shipped in one bag
or package.
(d) Redemption sites. Uncurrent coins will be redeemed only at the
Federal Reserve banks and branches listed in 100.17.
31 CFR 100.11 Exchange of bent and partial coins.
(a) Definitions. (1) Bent coins are U.S. coins which are bent or
deformed so as to preclude normal machine counting but which are readily
and clearly identifiable as to genuineness and denomination.
(2) Partial coins are U.S. coins which are not whole; partial coins
must be readily and clearly identifiable as to genuineness and
denomination.
(b) Redemption basis. Bent and partial coins shall be redeemed on
the basis of their weight and denomination category rates, (which is the
weight equivalent of face value) provided such coins are presented
separately by denomination category in lots of at least one pound for
each category. Bent and partial coins not presented separately by
denomination category will be redeemed as mixed coins. Denomination
categories and rates are (1) Cents, @ $1.4585 per pound (2) Nickels, @
$4.5359 per pound (3) Dimes, Quarters, Halves, and Eisenhower Dollars @
$20.00 per pound and (4) Anthony Dollars @ $56.00 per pound. Copper
plated zinc cents shall be redeemed at the face value equivalent of
copper one cent coins.
(c) Redemption site. Bent and partial coins will be redeemed only at
the United States Mint, P.O. Box 400, Philadelphia, PA 19105. Coins are
shipped at sender's risk and expense.
31 CFR 100.12 Exchange of fused and mixed coins.
(a) Definitions. (1) Fused coins are U.S. coins which are melted to
the extent that they are bonded together and the majority of which are
readily and clearly identifiable as U.S. coins.
(2) Mixed coins are U.S. coins of several alloy categories which are
presented together, but are readily and clearly identifiable as U.S.
coins.
(b) Redemption basis. (1) Fused and mixed coins shall be redeemed at
the lesser of:
(i) The inventory value of the copper and nickel as priced in the
Philadelphia Mint, Coinage Metal Account at the end of the preceding
calendar quarter or;
(ii) $1.5327 per pound of contained copper, which is the face value
equivalent of a pound of copper in the copper one-cent coin plus
$18.1442 per pound of contained nickel which is the face value
equivalent of a pound of nickel in the five cent coin.
(2) The redemption rate (discussed in subparagraph (1)(a)) will take
effect on the 15th day of each new calendar quarter.
(c) Criteria for acceptance. (1) A minimum of two pounds of fused
and mixed coins is required for redemption.
(2) Fused and mixed coins containing lead, solder, or other substance
which will render them unsuitable for coinage metal will not be
accepted.
(d) Redemption site. Fused and mixed coins will be redeemed only at
the United States Mint, P.O. Box 400, Philadelphia, PA 19105. Coins are
shipped at sender's risk and expense.
31 CFR 100.13 Criminal penalties.
Criminal penalties connected with the defacement or mutilation of
U.S. coins are provided in the United States Code, Title 18, section
331.
31 CFR 100.13 Subpart D -- Other Information
31 CFR 100.16 Exchange of paper and coin to be handled through Federal
Reserve banks and branches.
Other than as provided in this document all transactions including
the exchange of paper currency and coin shall be handled through the
Federal Reserve banks and branches.
31 CFR 100.17 Location of Federal Reserve banks and branches.
Boston -- 600 Atlantic Avenue, Boston, MA 02106
New York -- 33 Liberty Street (Federal Reserve P.O. Station), New
York, NY 10045
Buffalo Branch -- 160 Delaware Avenue (P.O. Box 961), Buffalo, NY
14240
Philadelphia -- Ten Independence Mall (P.O. Box 66), Philadelphia, PA
19105
Cleveland -- 1455 East Sixth Street (P.O. Box 6387), Cleveland, OH
44101
Cincinnati Branch -- 150 East Fourth Street (P.O. Box 999),
Cincinnati, OH 45201
Pittsburgh Branch -- 717 Grant Street (P.O. Box 867), Pittsburgh, PA
15230
Richmond -- 701 East Byrd Avenue (P.O. Box 27622), Richmond, VA 23261
Baltimore Branch -- 114-120 East Lexington Street (P.O. Box 1378),
Baltimore, MD 21203
Charlotte Branch -- 530 East Trade Street (P.O. Box 30248),
Charlotte, NC 28230
Atlanta -- 104 Marietta Street, NW., Atlanta, GA 30303
Birmingham Branch -- 1801 Fifth Avenue, North (P.O. Box 830447),
Birmingham, AL 35283-0447
Jacksonville Branch -- 800 Water Street (P.O. Box 929) Jacksonville,
FL 32231-0044
Miami Branch -- 9100 NW., 36th Street (P.O. Box 520847), Miami, FL
33152
Nashville Branch -- 301 Eighth Avenue, North, Nashville, TN 37203
New Orleans Branch -- 525 St. Charles Avenue (P.O. Box 61630), New
Orleans, LA 70161
Chicago -- 230 South LaSalle Street (P.O. Box 834), Chicago, IL 60690
Detroit Branch -- 160 Fort Street, West (P.O. Box 1059), Detroit, MI
48231
St. Louis -- 411 Locust Street (P.O. Box 442), St. Louis, MO 63166
Little Rock Branch -- 325 West Capitol Avenue (P.O. Box 1261), Little
Rock, AR 72203
Louisville Branch -- 410 South Fifth Street (P.O. Box 32710),
Louisville, KY 40232
Memphis Branch -- 200 North Main Street (P.O. Box 407), Memphis, TN
38101
Minneapolis -- 250 Marquette Avenue, Minneapolis, MN 55480
Helena Branch -- 400 North Park Avenue, Helena, MT 59601
Kansas City -- 925 Grand Avenue (Federal Reserve Station), Kansas
City, MO 64198
Denver Branch -- 1020 16th Street (P.O. Box 5228, Terminal Annex),
Denver, CO 80217
Oklahoma City Branch -- 226 Dean A. McGee Street (P.O. Box 25129),
Oklahoma City, OK 73125
Omaha Branch -- 2201 Farnam Street (P.O. Box 3958), Omaha, NB 68103
Dallas -- 400 South Akard Street (Station K), Dallas, TX 75222
El Paso Branch -- 301 East Main Street (P.O. Box 100), El Paso, TX
79999
Houston Branch -- 1701 San Jacinto Street (P.O. Box 2578), Houston,
TX 77001
San Antonio Branch -- 126 East Nueva Street (P.O. Box 1471), San
Antonio, TX 78295
San Francisco -- 400 Sansome Street (P.O. Box 7702), San Francisco,
CA 94120
Los Angeles Branch -- 950 South Grand Avenue (Terminal Annex, P.O.
Box 2077), Los Angeles CA 90051
Portland Branch -- 915 SW Stark Street (P.O. Box 3436), Portland, OR
97208
Salt Lake City Branch -- 120 South State Street (P.O. Box 30780),
Salt Lake City, UT 84125
Seattle Branch -- 1015 Second Avenue (P.O. Box 3567), Seattle, WA
98124
(47 FR 32044, July 23, 1982, as amended at 56 FR 10170, Mar. 11,
1991)
31 CFR 100.18 Counterfeit notes to be marked; ''redemption'' of notes
wrongfully so marked.
The Act of June 30, 1876 (19 Stat. 4; 31 U.S.C. 424), provides that
all U.S. Officers charged with the receipt or disbursement of public
moneys, and all officers of national banks, shall stamp or write in
plain letters the word ''counterfeit,'' ''altered,'' or ''worthless''
upon all fraudulent notes issued in the form of, and intended to
circulate as money, which shall be presented at their places of
business; and if such officers shall wrongfully stamp any genuine note
of the United States, or of the national bank, they shall, upon
presentation, ''redeem'' such notes at the face amount thereof.
31 CFR 100.19 Disposition of counterfeit notes and coins.
All counterfeit notes and coin found in remittances are cancelled and
delivered to the U.S. Secret Service of the Department of the Treasury
or to the nearest local office of that Service, a receipt for the same
being forwarded to the sender. Communications with respect thereto
should be addressed to the Director, U.S. Secret Service, Department of
the Treasury, Washington, DC 20223.
31 CFR 100.19 PART 101 -- MITIGATION OF FORFEITURE OF COUNTERFEIT GOLD
COINS
Sec.
101.1 Purpose and scope.
101.2 Petitions for mitigation.
101.3 Petitions reviewed by Assistant Secretary, Enforcement,
Operations, Tariff Affairs.
101.4 Extraction of gold bullion from the counterfeit coins.
101.5 Payment of smelting costs.
101.6 Return of the bullion.
101.7 Exceptions.
101.8 Discretion of the Secretary.
Authority: 18 U.S.C. 492.
Source: 42 FR 1472, Jan. 7, 1977, unless otherwise noted.
31 CFR 101.1 Purpose and scope.
The purpose of this part is to establish a policy whereby certain
purchasers or holders of gold coins who have forfeited them to the
United States because they were counterfeit may, in the discretion of
the Secretary of the Treasury, recover the gold bullion from the coins.
This part sets forth the procedures to be followed in implementing this
policy.
31 CFR 101.2 Petitions for mitigation.
(a) Who may file. Any person may petition the Secretary of the
Treasury for return of the gold bullion of counterfeit gold coins
forfeited to the United States, if:
(1) The petitioner innocently purchased or received the coins and
held them without the knowledge that they were counterfeit; and,
(2) The petitioner voluntarily submitted the coins to the Treasury
Department for a determination of whether they were legitimate or
counterfeit; and,
(3) The coins were determined to be counterfeit and were seized by
the Treasury Department and forfeited to the United States.
(b) To whom addressed. Petitions for mitigation of the forfeiture of
counterfeit gold coins should be addressed to the Assistant Secretary,
Enforcement, Operations, Tariff Affairs, Department of Treasury, 15th
and Pennsylvania Avenue, NW., Washington, DC 20220.
(c) Form. The petition need not be in any particular form, but must
be under oath, and set forth at least the following:
(1) The full name and address of the petitioner;
(2) A description of the coin or coins involved;
(3) The name and address of the person from whom the coins were
received or purchased by the petitioner;
(4) The date and place where they were voluntarily submitted for
examination;
(5) Any other circumstances relied upon by the petitioner to justify
the mitigation;
(6) A statement that the petitioner purchased or received and held
the coins without the knowledge that they were counterfeit.
31 CFR 101.3 Petitions reviewed by Assistant Secretary, Enforcement,
Operations, Tariff Affairs.
(a) The Assistant Secretary will receive and review all petitions for
mitigation of the forfeiture of counterfeit gold coins. He shall
conduct such further investigation, and may request such further
information from the petitioner as he deems necessary. Petitions will
be approved if the Assistant Secretary determines that:
(1) The gold coins have not been previously disposed of by normal
procedures;
(2) The petitioner was an innocent purchaser or holder of the gold
coins and is not under investigation in connection with the coins at the
time of submission or thereafter;
(3) The coins are not needed and will not be needed in the future in
any investigation or as evidence in legal proceedings; and
(4) Mitigation of the forfeiture is in the best interest of the
Government.
31 CFR 101.4 Extraction of gold bullion from the counterfeit coins.
If the petition is approved, the Assistant Secretary shall then
forward the gold coins to the Bureau of the Mint where, if economically
feasible, the gold bullion will be extracted from the counterfeit coins.
The Bureau of the Mint will then return the bullion to the Assistant
Secretary.
31 CFR 101.5 Payment of smelting costs.
The petitioner shall be required to pay all reasonable costs incurred
in extracting the bullion from the counterfeit coins, as shall be
determined by the Assistant Secretary. Payment must be made prior to
the return of the gold bullion to the petitioner.
31 CFR 101.6 Return of the bullion.
After receiving the gold bullion from the Bureau of the Mint, the
Assistant Secretary shall notify the petitioner that his petition has
been approved and that payment of the smelting costs in an amount set
forth in such notice must be made prior to the return of the bullion.
31 CFR 101.7 Exceptions.
The provisions of this part shall not apply where the cost of
smelting the gold coins exceeds the value of the gold bullion to be
returned.
31 CFR 101.8 Discretion of the Secretary.
The Secretary of the Treasury retains complete discretion to deny any
claim of any petitioner when the Secretary believes it is not in the
best interest of the Government to return the bullion to the petitioner
or when the Secretary is not convinced that the petitoner was an
innocent purchaser or holder without knowledge that the gold coins were
counterfeit.
31 CFR 101.8 PART 103 -- FINANCIAL RECORDKEEPING AND REPORTING OF CURRENCY AND FOREIGN TRANSACTIONS
31 CFR 101.8 Subpart A -- Definitions
Sec.
103.11 Meaning of terms.
31 CFR 101.8 Subpart B -- Reports Required To Be Made
103.21 Determination by the Secretary.
103.22 Reports of currency transactions.
103.23 Reports of transportation of currency or monetary instruments.
103.24 Reports of foreign financial accounts.
103.25 Reports of transactions with foreign financial agencies.
103.26 Reports of certain domestic coin and currency transactions.
103.27 Filing of reports.
103.28 Identification required.
103.29 Purchases of bank checks and drafts, cashier's checks, money
orders and traveler's checks.
31 CFR 101.8 Subpart C -- Records Required To Be Maintained
103.31 Determination by the Secretary.
103.32 Records to be made and retained by persons having financial
interests in foreign financial accounts.
103.33 Records to be made and retained by financial institutions.
103.34 Additional records to be made and retained by banks.
103.35 Additional records to be made and retained by brokers or
dealers in securities.
103.36 Additional records to be made and retained by casinos.
103.37 Additional records to be made and retained by currency dealers
or exchangers.
103.38 Nature of records and retention period.
103.39 Person outside the United States.
31 CFR 101.8 Subpart D -- General Provisions
103.41 Dollars as including foreign currency.
103.42 Photographic or other reproductions of Government obligations.
103.43 Availability of information.
103.44 Disclosure.
103.45 Exceptions, exemptions, and reports.
103.46 Enforcement.
103.47 Civil penalty.
103.48 Forfeiture of currency or monetary instruments.
103.49 Criminal penalty.
103.50 Enforcement authority with respect to transportation of
currency or monetary instruments.
103.51 Access to records.
103.52 Rewards for informants.
103.53 Structured transactions.
31 CFR 101.8 Subpart E -- Summons
103.61 General.
103.62 Persons who may issue summons.
103.63 Contents of summons.
103.64 Service of summons.
103.65 Examination of witnesses and records.
103.66 Enforcement of summons.
103.67 Payment of expenses.
31 CFR 101.8 Subpart F -- Administrative Rulings
103.70 Scope.
103.71 Submitting requests.
103.72 Nonconforming requests.
103.73 Oral communications.
103.74 Withdrawing requests.
103.75 Issuing rulings.
103.76 Modifying or rescinding rulings.
103.77 Disclosing information.
Appendix -- Administrative Rulings
Authority: Pub. L. 91-508, Title I, 84 Stat. 1114 (12 U.S.C.
1730d, 1829b and 1951-1959); and the Currency and Foreign Transactions
Reporting Act, Pub. L. 91-508, Title II, 84 Stat. 1118, as amended (31
U.S.C. 5311-5326).
Source: 37 FR 6912, Apr. 5, 1972, unless otherwise noted.
Editorial Note: Nomenclature changes for part 103 appear at 52 FR
11442, Apr. 8, 1987.
31 CFR 101.8 Subpart A -- Definitions
31 CFR 103.11 Meaning of terms.
When used in this part and in forms prescribed under this part, where
not otherwise distinctly expressed or manifestly incompatible with the
intent thereof, terms shall have the meanings ascribed in this section.
(a) At one time. For purposes of 103.23 of this part, a person who
transports, mails, ships or receives; is about to or attempts to
transport, mail or ship; or causes the transportation, mailing,
shipment or receipt of monetary instruments, is deemed to do so ''at one
time'' if:
(1) That person either alone, in conjunction with or on behalf of
others;
(2) Transports, mails, ships or receives in any manner; is about to
transport, mail or ship in any manner; or causes the transportation,
mailing, shipment or receipt in any manner of;
(3) Monetary instruments;
(4) Into the United States or out of the United States;
(5) Totaling more than $10,000;
(6)(i) On one calendar day or (ii) if for the purpose of evading the
reporting requirements of 103.23, on one or more days.
(b) Bank. Each agent, agency, branch or office within the United
States of any person doing business in one or more of the capacities
listed below:
(1) A commerical bank or trust company organized under the laws of
any State or of the United States;
(2) A private bank;
(3) A savings and loan association or a building and loan association
organized under the laws of any State or of the United States;
(4) An insured institution as defined in section 401 of the National
Housing Act;
(5) A savings bank, industrial bank or other thrift institution;
(6) A credit union organized under the law of any State or of the
United States;
(7) Any other organization chartered under the banking laws of any
State and subject to the supervision of the bank supervisory authorities
of a State;
(8) A bank organized under foreign law;
(9) Any national banking association or corporation acting under the
provisions of section 25(a) of the Act of Dec. 23, 1913, as added by
the Act of Dec. 24, 1919, ch. 18, 41 Stat. 378, as amended (12 U.S.C.
611-32).
(c) Broker or dealer in securities. A broker or dealer in
securities, registered or required to be registered with the Securities
and Exchange Commission under the Securities Exchange Act of 1934.
(d) Common carrier. Any person engaged in the business of
transporting individuals or goods for a fee who holds himself out as
ready to engage in such transportation for hire and who undertakes to do
so indiscriminately for all persons who are prepared to pay the fee for
the particular service offered.
(e) Currency. The coin and paper money of the United States or of
any other country that is designated as legal tender and that circulates
and is customarily used and accepted as a medium of exchange in the
country of issuance. Currency includes U.S. silver certificates, U.S.
notes and Federal Reserve notes. Currency also includes official
foreign bank notes that are customarily used and accepted as a medium of
exchange in a foreign country.
(f) Currency dealer or exchanger. A person who engages as a business
in dealing in or exchanging currency, except for banks which offer such
services as an adjunct to their regular services.
(g) Deposit account. For purposes of 103.29 of this part, deposit
accounts include transaction accounts described in paragraph (q) of this
section, savings accounts, and other time deposits.
(h) Domestic. When used herein, refers to the doing of business
within the United States, and limits the applicability of the provision
where it appears to the performance by such institutions or agencies of
functions within the United States.
(i) Financial institution. Each agent, agency, branch, or office
within the United States of any person doing business, whether or not on
a regular basis or as an organized business concern, in one or more of
the capacities listed below:
(1) A bank (except bank credit card systems);
(2) A broker or dealer in securities;
(3) A currrency dealer or exchanger, including a person engaged in
the business of a check casher;
(4) An issuer, seller, or redeemer of traveler's checks or money
orders, except as a selling agent exclusively who does not sell more
than $150,000 of such instruments within any given 30-day period;
(5) A licensed transmitter of funds, or other person engaged in the
business of transmitting funds;
(6) A telegraph company;
(7)(i) A casino or gambling casino licensed as a casino or gambling
casino by a State or local government and having gross annual gaming
revenue in excess of $1,000,000.
(ii) A casino or gambling casino includes the principal headquarters
and any branch or place of business of the casino or gambling casino.
(8) A person subject to supervision by any state or federal bank
supervisory authority;.
(9) The United States Postal Service with respect to the sale of
money orders.
(j) Foreign bank. A bank organized under foreign law, or an agency,
branch or office located outside the United States of a bank. The term
does not include an agent, agency, branch or office within the United
States of a bank organized under foreign law.
(k) Foreign financial agency. A person acting outside the United
States for a person (except for a country, a monetary or financial
authority acting as a monetary or financial authority, or an
international financial institution of which the United States
Government is a member) as a financial institution, bailee, depository
trustee, or agent, or acting in a similar way related to money, credit,
securities, gold, or a transaction in money, credit, securities, or
gold.
(l) Investment security. An instrument which:
(1) Is issued in bearer or registered form;
(2) Is of a type commonly dealt in upon securities exchanges or
markets or commonly recognized in any area in which it is issued or
dealt in as a medium for investment;
(3) Is either one of a class or series or by its terms is divisible
into a class or series of instruments; and
(4) Evidences a share, participation or other interest in property or
in an enterprise or evidences an obligation of the issuer.
(m) Monetary instruments. (1) Monetary instruments include:
(i) Currrency;
(ii) Traveler's checks in any form;
(iii) All negotiable instruments (including personal checks, business
checks, official bank checks, cashier's checks, third-party checks,
promissory notes (as that term is defined in the Uniform Commercial
Code), and money orders) that are either in bearer form, endorsed
without restriction, made out to a fictitious payee (for the purposes of
103.23), or otherwise in such form that title thereto passes upon
delivery;
(iv) Incomplete instruments (including personal checks, business
checks, official bank checks, cashier's checks, third-party checks,
promissory notes (as that term is defined in the Uniform Commercial
Code), and money orders) signed but with the payee's name omitted; and
(v) Securities or stock in bearer form or otherwise in such form that
title thereto passes upon delivery.
(2) Monetary instruments do not include warehouse receipts or bills
of lading.
(n) Person. An individual, a corporation, a partnership, a trust or
estate, a joint stock company, an association, a syndicate, joint
venture, or other unincorporated organization or group, and all entities
cognizable as legal personalities.
(o) Secretary. The Secretary of the Treasury or any person duly
authorized by the Secretary to perform the function mentioned.
(p) Structure (structuring). For purposes of section 103.53, a
person structures a transaction if that person, acting alone, or in
conjunction with, or on behalf of, other persons, conducts or attempts
to conduct one or more transactions in currency, in any amount, at one
or more financial institutions, on one or more days, in any manner, for
the purpose of evading the reporting requirements under section 103.22
of this part. ''In any manner'' includes, but is not limited to, the
breaking down of a single sum of currency exceeding $10,000 into smaller
sums, including sums at or below $10,000, or the conduct of a
transaction, or series of currency transactions, including transactions
at or below $10,000. The transaction or transactions need not exceed
the $10,000 reporting threshold at any single financial institution on
any single day in order to constitute structuring within the meaning of
this definition.
(q) Transaction account. Transaction accounts include those accounts
described in 12 U.S.C. 461(b)(1)(C), money market accounts and similar
accounts that take deposits and are subject to withdrawal by check or
other negotiable order.
(r) Transaction in currency. A transaction involving the physical
transfer of currency from one person to another. A transaction which is
a transfer of funds by means of bank check, bank draft, wire transfer,
or other written order, and which does not include the physical transfer
of currency is not a transaction in currency within the meaning of this
part.
(s) United States. The States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, the Commonwealth of the Northern Mariana Islands,
American Samoa, the Trust Territory of the Pacific Islands, and the
territories and possessions of the United States.
(t) Business day. Business day, as used in this part with respect to
banks, means that day, as normally communicated to its depository
customers, on which a bank routinely posts a particular transaction to
its customer's account.
(u) Postal Service. The United States Postal Service.
(52 FR 11441, Apr. 8, 1987; 52 FR 12641, Apr. 17, 1987, as amended
at 53 FR 777, Jan. 13, 1988; 53 FR 4138, Feb. 12, l988; 54 FR 3027,
Jan. 23, 1989; 54 FR 28418, July 6, 1989; 55 FR 20143, May 15, 1990)
31 CFR 103.11 Subpart B -- Reports Required To Be Made
31 CFR 103.21 Determination by the Secretary.
The Secretary hereby determines that the reports required by this
subpart have a high degree of usefulness in criminal, tax, or regulatory
investigations or proceedings.
31 CFR 103.22 Reports of currency transactions.
(a)(1) Each financial institution other than a casino or the Postal
Service shall file a report of each deposit, withdrawal, exchange of
currency or other payment or transfer, by, through, or to such financial
institution which involves a transaction in currency of more than
$10,000. Multiple currency transactions shall be treated as a single
transaction if the financial institution has knowledge that they are by
or on behalf of any person and result in either cash in or cash out
totalling more than $10,000 during any one business day. Deposits made
at night or over a weekend or holiday shall be treated as if received on
the next business day following the deposit.
(2) Each casino shall file a report of each deposit, withdrawal,
exchange of currency, gambling tokens or chips, or other payment or
transfer, by, through, or to such casino which involves a transaction in
currency of more than $10,000. Multiple currency transactions shall be
treated as a single transaction if the casino has knowledge that they
are by or on behalf of any person and result in either cash in or cash
out totalling more than $10,000 during any twenty-four hour period.
(3) The Postal Service shall file a report of each cash purchase of
postal money orders in excess of $10,000. Multiple cash purchases
totaling more than $10,000 shall be treated as a single transaction if
the Postal Service has knowledge that they are by or on behalf of any
person during any one day.
(4) A financial institution includes all of its domestic branch
offices for the purpose of this paragraph's reporting requirements.
(b) Except as otherwise directed in writing by the Assistant
Secretary (Enforcement) or the Commissioner of Internal Revenue:
(1) This section shall not require reports:
(i) Of transactions with Federal Reserve Banks or Federal Home Loan
banks;
(ii) Of transactions between domestic banks; or
(iii) By nonbank financial institutions of transactions with
commercial banks (however, commercial banks must report such
transactions with nonbank financial institutions).
(2) A bank may exempt from the reporting requirement of paragraph (a)
of this section the following:
(i) Deposits or withdrawals of currency from an existing account by
an established depositor who is a United States resident and operates a
retail type of business in the United States. For the purpose of this
subsection, a retail type of business is a business primarily engaged in
providing goods to ultimate consumers and for which the business is paid
in substantial portions by currency, except that dealerships which buy
or sell motor vehicles, vessels, or aircraft are not included and their
transactions may not be exempted from the reporting requirements of this
section.
(ii) Deposits or withdrawals of currency from an existing account by
an established depositor who is a United States resident and operates a
sports arena, race track, amusement park, bar, restaurant, hotel, check
cashing service licensed by state or local governments, vending machine
company, theater, regularly scheduled passenger carrier or any public
utility.
(iii) Deposits or withdrawals, exchanges of currency or other
payments and transfers by local or state governments, or the United
States or any of its agencies or instrumentalities.
(iv) Withdrawals for payroll purposes from an existing account by an
established depositor who is a United States resident and operates a
firm that regularly withdraws more than $10,000 in order to pay its
employees in currency.
(c) In each instance the transactions exempted under paragraph (b) of
this section must be in amounts which the bank may reasonably conclude
do not exceed amounts commensurate with the customary conduct of the
lawful, domestic business of that customer, or in the case of
transactions with a local or state govenment or the United States or any
of its agencies or instrumentalities, in amounts which are customary and
commensurate with the authorized activities of the agency or
instrumentality. This section does not permit a bank to exempt its
transactions with nonbank financial institutions (except for check
cashing services licensed by state or local governments and the United
States Postal Service) nor will additional exemption authority be
granted for such transaction (except transactions by other check
cashers).
(d) After October 27, 1986, a bank may not place any customer on its
exempt list without first preparing a written statement, signed by the
customer, describing the customary conduct of the lawful domestic
business of that customer and a detailed statement of reasons why such
person is qualified for an exemption. The statement shall include the
name, address, nature of business, taxpayer identification number, and
account number of the customer being exempted. The signature, including
the title and position of the person signing, will attest to the
accuracy of the information concerning the name, address, nature of
business, and tax identification number of the customer. Immediately
above the signature line, the following statement shall appear:
''The information contained above is true and correct to the best of
my knowledge and belief. I understand that this information will be
read and relied upon by the Government.''
The bank shall indicate in this statement whether the exemption
covers withdrawals, deposits, or both, as well as the dollar limit of
the exemption for both deposits and withdrawals. The bank also shall
indicate whether the exemption is limited to certain types of deposits
and withdrawals (e.g., withdrawals for payroll purposes). In each
instance, the exempted transactions must be in amounts that the bank may
reasonably conclude do not exceed amounts commensurate with the
customary conduct of the lawful domestic business of that customer. The
bank is responsible for independently verifying the activity of the
account and determining applicable dollar limits for exempted deposits
or withdrawals. The bank must retain each statement that it prepares
pursuant to this subparagraph as long as the customer is on the exempt
list, and for a period of five years following removal of the customer
from the bank's exempt list.
(e) A bank may apply to the Commissioner of Internal Revenue for
additional authority to grant an exemption to the reporting requirement,
not otherwise permitted under paragraph (b) of this section, if the bank
believes that circumstances warrent such an exemption. Such requests
shall be addressed to: Chief, Currency and Banking Reports Branch,
Compliance Review Group, IRS Data Center, Post Office Box 32063,
Detroit, Michigan 48232, and must be accompanied by a statement of the
circumstances that warrant special exemption treatment and a copy of the
statement signed by the customer required by paragraph (d) of this
section.
(f) A record of each exemption granted under this section and the
reason therefor must be kept in a centralized list. The record shall
include the names and addresses of all banks referred to in paragraph
(b)(1)(ii) of this section, as well as the name, address, business,
taxpayer identification number and account number of each depositor that
has engaged in currency transactions which have not been reported
because of the exemption provided in paragraph (b)(2) of this section.
The record concerning the group of depositors exempted under the
provisions of paragraph (b)(2) of this section shall also indicate
whether the exemption covers withdrawals, deposits, or both, as well as
the dollar limit of the exemption.
(g) Upon the request of the Assistant Secretary (Enforcement) or the
Commissioner of Internal Revenue, a bank shall provide a report
containing the list of the bank's customers whose transactions have been
exempted under this section and such related information as the
Assistant Secretary or Commissioner shall require, including copies of
the statements required in paragraph (d) of this section. The report
must be provided within 15 days of the request. Any exemption may be
rescinded at the discretion of the requesting official, who may require
the bank to file reports required by paragraph (a) of this section with
respect to future transactions of any customer whose transactions
previously were exempted.
(Approved by the Office of Management and Budget under control number
1505-0063)
(52 FR 11442, Apr. 8, 1987, as amended at 53 FR 777, Jan. 13, 1988;
53 FR 4138, Feb. 12, 1988)
31 CFR 103.23 Reports of transportation of currency or monetary
instruments.
(a) Each person who physically transports, mails, or ships, or causes
to be physically transported, mailed, or shipped, or attempts to
physically transport, mail or ship, or attempts to cause to be
physically transported, mailed or shipped, currency or other monetary
instruments in an aggregate amount exceeding $10,000 at one time from
the United States to any place outside the United States, or into the
United States from any place outside the United States, shall make a
report thereof. A person is deemed to have caused such transportation,
mailing or shipping when he aids, abets, counsels, commands, procures,
or requests it to be done by a financial institution or any other
person.
(b) Each person who receives in the U.S. currency or other monetary
instruments in an aggregate amount exceeding $10,000 at one time which
have been transported, mailed, or shipped to such person from any place
outside the United States with respect to which a report has not been
filed under paragraph (a) of this section, whether or not required to be
filed thereunder, shall make a report thereof, stating the amount, the
date of receipt, the form of monetary instruments, and the person from
whom received.
(c) This section shall not require reports by:
(1) A Federal Reserve;
(2) A bank, a foreign bank, or a broker or dealer in securities, in
respect to currency or other monetary instruments mailed or shipped
through the postal service or by common carrier;
(3) A commercial bank or trust company organized under the laws of
any State or of the United States with respect to overland shipments of
currency or monetary instruments shipped to or received from an
established customer maintaining a deposit relationship with the bank,
in amounts which the bank may reasonably conclude do not exceed amounts
commensurate with the customary conduct of the business, industry or
profession of the customer concerned;
(4) A person who is not a citizen or resident of the United States in
respect to currency or other monetary instruments mailed or shipped from
abroad to a bank or broker or dealer in securities through the postal
service or by common carrier;
(5) A common carrier of passengers in respect to currency or other
monetary instruments in the possession of its passengers;
(6) A common carrier of goods in respect to shipments of currency or
monetary instruments not declared to be such by the shipper;
(7) A travelers' check issuer or its agent in respect to the
transportation of travelers' checks prior to their delivery to selling
agents for eventual sale to the public;
(8) By a person with respect to a restrictively endorsed traveler's
check that is in the collection and reconciliation process after the
traveler's check has been negotiated,
(9) Nor by a person engaged as a business in the transportation of
currency, monetary instruments and other commercial papers with respect
to the transportation of currency or other monetary instruments overland
between established offices of banks or brokers or dealers in securities
and foreign persons.
(d) A transfer of funds through normal banking procedures which does
not involve the physical transportation of currency or monetary
instruments is not required to be reported by this section. This
section does not require that more than one report be filed covering a
particular transportation, mailing or shipping of currency or other
monetary instruments with respect to which a complete and truthful
report has been filed by a person. However, no person required by
paragraph (a) or (b) of this section to file a report shall be excused
from liability for failure to do so if, in fact, a complete and truthful
report has not been filed.
(Approved by the Office of Management and Budget under control number
1505-0063)
(37 FR 26517, Dec. 13, 1972, as amended at 50 FR 18479, May 1, 1985;
50 FR 42693, Oct. 22, 1985; 53 FR 4138, Feb. 12, 1988; 54 FR 28418,
July 6, 1989)
31 CFR 103.24 Reports of foreign financial accounts.
(a) Each person subject to the jurisdiction of the United States
(except a foreign subsidiary of a U.S. person) having a financial
interest in, or signature or other authority over, a bank, securities or
other financial account in a foreign country shall report such
relationship to the Commissioner of the Internal Revenue for each year
in which such relationship exists, and shall provide such information as
shall be specified in a reporting form prescribed by the Secretary to be
filed by such persons. Persons having a financial interest in 25 or
more foreign financial accounts need only note that fact on the form.
Such persons will be required to provide detailed information concerning
each account when so requested by the Secretary or his delegate.
(42 FR 63774, Dec. 20, 1977, as amended at 52 FR 11443, Apr. 8, 1987;
52 FR 12641, Apr. 17, 1987)
31 CFR 103.25 Reports of transactions with foreign financial agencies.
(a) Promulgation of reporting requirements. The Secretary, when he
deems appropriate, may promulgate regulations requiring specified
financial institutions to file reports of certain transactions with
designated foreign financial agencies. If any such regulation is issued
as a final rule without notice and opportunity for public comment, then
a finding of good cause for dispensing with notice and comment in
accordance with 5 U.S.C. 553(b) will be included in the regulation. If
any such regulation is not published in the Federal Register, then any
financial institution subject to the regulation will be named and
personally served or otherwise given actual notice in accordance with 5
U.S.C. 553(b). If a financial institution is given notice of a reporting
requirement under this section by means other than publication in the
Federal Register, the Secretary may prohibit disclosure of the existence
or provisions of that reporting requirement to the designated foreign
financial agency or agencies and to any other party.
(b) Information subject to reporting requirements. A regulation
promulgated pursuant to paragraph (a) of this section shall designate
one or more of the following categories of information to be reported:
(1) Checks or drafts, including traveler's checks, received by
respondent financial institution for collection or credit to the account
of a foreign financial agency, sent by respondent financial institution
to a foreign country for collection or payment, drawn by respondent
financial institution on a foreign financial agency, drawn by a foreign
financial agency on respondent financial institution -- including the
following information.
(i) Name of maker or drawer;
(ii) Name of drawee or drawee financial institution;
(iii) Name of payee;
(iv) Date and amount of instrument;
(v) Names of all endorsers.
(2) Wire or electronic fund transfers received by respondent
financial institution from a foreign financial agency or sent by
respondent financial institution to a foreign financial agency --
including the following information:
(i) Name of foreign financial agency;
(ii) Name, address and account number of account being credited or
debited by respondent financial institution;
(iii) Name of respondent financial institution;
(iv) Date and amount of each transfer;
(v) Any other information normally appearing on respondent financial
institution's internal wire or electronic fund transfer entries.
(3) Loans made by respondent financial institution to or through a
foreign financial agency -- including the following information:
(i) Name of borrower;
(ii) Name of person acting for borrower;
(iii) Date and amount of loan;
(iv) Terms of repayment;
(v) Name of guarantor;
(vi) Rate of interest;
(vii) Method of disbursing proceeds;
(viii) Collateral for loan.
(4) Commercial paper received or shipped by the respondent financial
institution -- including the following information:
(i) Name of maker;
(ii) Date and amount of paper;
(iii) Due date;
(iv) Certificate number;
(v) Amount of transaction.
(5) Stocks received or shipped by respondent financial institution --
including the following information:
(i) Name of corporation;
(ii) Type of stock;
(iii) Certificate number;
(iv) Number of shares;
(v) Date of certificate;
(vi) Name of registered holder;
(vii) Amount of transaction.
(6) Bonds received or shipped by respondent financial institution --
including the following information:
(i) Name of issuer;
(ii) Bond number;
(iii) Type of bond series;
(iv) Date issued;
(v) Due date;
(vi) Rate of interest;
(vii) Amount of transaction;
(viii) Name of registered holder.
(7) Certificates of deposit received or shipped by respondent
financial institution -- including the following information:
(i) Name and address of issuer;
(ii) Date issued;
(iii) Dollar amount;
(iv) Name of registered holder;
(v) Due date;
(vi) Rate of interest;
(vii) Certificate number;
(viii) Name and address of issuing agent.
(c) Scope of reports. In issuing regulations as provided in
paragraph (a) of this section, the Secretary will prescribe:
(1) A reasonable classification of financial institutions subject to
or exempt from a reporting requirement;
(2) A foreign country to which a reporting requirement applies if the
Secretary decides that applying the requirement to all foreign countries
is unnecessary or undesirable;
(3) The magnitude of transactions subject to a reporting requirement;
and
(4) The kind of transaction subject to or exempt from a reporting
requirement.
(d) Form of reports. Regulations issued pursuant to paragraph (a) of
this section may prescribe the manner in which the information is to be
reported. However, the Secretary may authorize a designated financial
institution to report in a different manner if the institution
demonstrates to the Secretary that the form of the required report is
unnecessarily burdensome on the institution as prescribed; that a
report in a different form will provide all the information the
Secretary deems necessary; and that submission of the information in a
different manner will not unduly hinder the effective administration of
this part.
(e) Limitations. (1) In issuing regulations under paragraph (a) of
this section, the Secretary shall consider the need to avoid impeding or
controlling the export or import of monetary instruments and the need to
avoid burdening unreasonably a person making a transaction with a
foreign financial agency.
(2) The Secretary shall not issue a regulation under paragraph (a) of
this section for the purpose of obtaining individually identifiable
account information concerning a customer, as defined by the Right to
Financial Privacy Act (12 U.S.C. 3401 et seq.), where that customer is
already the subject of an ongoing investigation for possible violation
of the Currency and Foreign Transactions Reporting Act, or is known by
the Secretary to be the subject of an investigation for possible
violation of any other Federal law.
(3) The Secretary may issue a regulation pursuant to paragraph (a) of
this section requiring a financial institution to report transactions
completed prior to the date it received notice of the reporting
requirement. However, with respect to completed transactions, a
financial institution may be required to provide information only from
records required to be maintained pursuant to Subpart C of this part, or
any other provision of state or Federal law, or otherwise maintained in
the regular course of business.
(Approved by the Office of Management and Budget under control number
1505-0063)
(50 FR 27824, July 8, 1985, as amended at 53 FR 10073, Mar. 29, 1988)
31 CFR 103.26 Reports of certain domestic coin and currency
transactions.
(a) If the Secretary of the Treasury finds, upon the Secretary's own
initiative or at the request of an appropriate Federal or State law
enforcement official, that reasonable grounds exist for concluding that
additional recordkeeping and/or reporting requirements are necessary to
carry out the purposes of this part and to prevent persons from evading
the reporting/recordkeeping requirements of this part, the Secretary may
issue an order requiring any domestic financial institution or group of
domestic financial institutions in a geographic area and any other
person participating in the type of transaction to file a report in the
manner and to the extent specified in such order. The order shall
contain such information as the Secretary may describe concerning any
transaction in which such financial institution is involved for the
payment, receipt, or transfer of United States coins or currency (or
such other monetary instruments as the Secretary may describe in such
order) the total amounts or denominations of which are equal to or
greater than an amount which the Secretary may prescribe.
(b) An order issued under paragraph (a) of this section shall be
directed to the Chief Executive Officer of the financial institution and
shall designate one or more of the following categories of information
to be reported: Each deposit, withdrawal, exchange of currency or other
payment or transfer, by, through or to such financial institution
specified in the order, which involves all or any class of transactions
in currency and/or monetary instruments equal to or exceeding an amount
to be specified in the order.
(c) In issuing an order under paragraph (a) of this section, the
Secretary will prescribe:
(1) The dollar amount of transactions subject to the reporting
requirement in the order;
(2) The type of transaction or transactions subject to or exempt from
a reporting requirement in the order;
(3) The appropriate form for reporting the transactions required in
the order;
(4) The address to which reports required in the order are to be sent
or from which they will be picked up;
(5) The starting and ending dates by which such transactions
specified in the order are to be reported;
(6) The name of a Treasury official to be contacted for any
additional information or questions;
(7) The amount of time the reports and records of reports generated
in response to the order will have to be retained by the financial
institution; and
(8) Any other information deemed necessary to carry out the purposes
of the order.
(d)(1) No order issued pursuant to paragraph (a) of this section
shall prescribe a reporting period of more than 60 days unless renewed
pursuant to the requirements of paragraph (a).
(2) Any revisions to an order issued under this section will not be
effective until made in writing by the Secretary.
(3) Unless otherwise specified in the order, a bank receiving an
order under this section may continue to use the exemptions granted
under 103.22 of this part prior to the receipt of the order, but may
not grant additional exemptions.
(4) For purposes of this section, the term ''geographic area'' means
any area in one or more States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, the Commonwealth of the Northern Mariana Islands,
American Samoa, the Trust Territory of the Pacific Islands, the
territories and possessions of the United States, and/or political
subdivision or subdivisions thereof, as specified in an order issued
pursuant to paragraph (a) of this section.
(Approved by the Office of Management and Budget under control number
1505-0063)
(54 FR 33679, Aug. 16, 1989)
31 CFR 103.27 Filing of reports.
(a)(1) A report required by 103.22(a) shall be filed by the
financial institution within 15 days following the day on which the
reportable transaction occurred.
(2) A report required by 103.22(g) shall be filed by the bank within
15 days after receiving a request for the report.
(3) A copy of each report filed pursuant to 103.22 shall be retained
by the financial institution for a period of five years from the date of
the report.
(4) All reports required to be filed by 103.22 shall be filed with
the Commissioner of Internal Revenue, unless otherwise specified.
(b)(1) A report required by 103.23(a) shall be filed at the time of
entry into the United States or at the time of departure, mailing or
shipping from the United States, unless otherwise specified by the
Commissioner of Customs.
(2) A report required by 103.23(b) shall be filed within 15 days
after receipt of the currency or other monetary instruments.
(3) All reports required by 103.23 shall be filed with the Customs
officer in charge at any port of entry or departure, or as otherwise
specified by the Commissioner of Customs. Reports required by
103.23(a) for currency or other monetary instruments not physically
accompanying a person entering or departing from the United States, may
be filed by mail on or before the date of entry, departure, mailing or
shipping. All reports required by 103.23(b) may also be filed by mail.
Reports filed by mail shall be addressed to the Commissioner of
Customs, Attention: Currency Transportation Reports, Washington, DC
20229.
(c) Reports required to be filed by 103.24 shall be filed with the
Commissioner of Internal Revenue on or before June 30 of each calendar
year with respect to foreign financial acccounts exceeding $10,000
maintained during the previous calendar year.
(d) Reports required by 103.22, 103.23 or 103.24 shall be filed on
forms prescribed by the Secretary. All information called for in such
forms shall be furnished.
(e) Forms to be used in making the reports required by 103.22 and
103.24 may be obtained from the Internal Revenue Service. Forms to be
used in making the reports required by 103.23 may be obtained from the
U.S. Customs Service.
(Approved by the Office of Management and Budget under control number
1505-0063)
(52 FR 11443, Apr. 8, 1987; 52 FR 12641, Apr. 17, 1987, as amended
at 53 FR 4138, Feb. 12, 1988. Redesignated at 54 FR 33678, Aug. 16,
1989)
31 CFR 103.28 Identification required.
Before concluding any transaction with respect to which a report is
required under 103.22, a financial institution shall verify and record
the name and address of the individual presenting a transaction, as well
as record the identity, account number, and the social security or
taxpayer identification number, if any, of any person or entity on whose
behalf such transaction is to be effected. Verification of the identity
of an individual who indicates that he or she is an alien or is not a
resident of the United States must be made by passport, alien
identification card, or other official document evidencing nationality
or residence (e.g., a Provincial driver's license with indication of
home address). Verification of identity in any other case shall be made
by examination of a document, other than a bank signature card, that is
normally acceptable within the banking community as a means of
identification when cashing checks for nondepositors (e.g., a drivers
license or credit card). A bank signature card may be relied upon only
if it was issued after documents establishing the identity of the
individual were examined and notation of the specific information was
made on the signature card. In each instance, the specific identifying
information (i.e., the account number of the credit card, the driver's
license number, etc.) used in verifying the identity of the customer
shall be recorded on the report, and the mere notation of ''known
customer'' or ''bank signature card on file'' on the report is
prohibited.
(Approved by the Office of Management and Budget under control number
1505-0063)
(52 FR 11443, Apr. 8, 1987; 52 FR 12641, Apr. 17, 1987, as amended
at 54 FR 3027, Jan. 23, 1989. Redesignated at 54 FR 33678, Aug. 16,
1989)
31 CFR 103.29 Purchases of bank checks and drafts, cashier's checks,
money orders and traveler's checks.
(a) No financial institution may issue or sell a bank check or draft,
cashier's check, money order or traveler's check for $3,000 or more in
currency unless it maintains a chronological log or logs for each
calendar month on which shall be recorded the following information.
The following information must be obtained for each issuance or sale of
one or more of these instruments to any individual purchaser which
involves currency in amounts of $3,000-$10,000 inclusive:
(1) If the purchaser has a deposit account with the financial
institution:
(i)(A) The name of the purchaser;
(B) The number of purchaser's account;
(C) The date of purchase;
(D) The branch where the purchase occurred;
(E) The type(s) of instrument(s) purchased;
(F) The serial number(s) of each of the instrument(s) purchased; and
(G) The dollar amount(s) of each of the instrument(s) purchased in
currency.
(ii) In addition, the financial institution must verify that the
individual is a deposit accountholder or must verify the individual's
identity. Verification may be either through a signature card or other
file or record at the financial institution, if the deposit
accountholder's name and address were verified at the time the account
was opened, or at any subsequent time, and that information was recorded
on the signature card or other file or record; or by examination of a
document that contains the name and address of the purchaser and
normally is acceptable within the banking community as a means of
identification when cashing checks for nondepositors. If the deposit
accountholder's identity has not been verified previously, or if the
financial institution is unable to determine whether the individual's
identification had been verified previously, then the financial
institution shall verify the deposit accountholder's identity by
examination of a document that contains the name and address of the
purchaser and normally is acceptable within the banking community as a
means of identification when cashing checks for nondepositors, and shall
record the specific identifying information on the log (e.g., State of
issuance and number of driver's license). The method of verification
used shall be noted on the log.
(2) If the purchaser does not have a deposit account with the
financial institution: (i)(A) The name and address of the purchaser;
(B) The social security number of the purchaser, or if the purchaser
is an alien and does not have a social security number, then the alien
identification number;
(C) The date of birth of the purchaser;
(D) If the individual is purchasing the instrument(s) on behalf of
another person, the name of the person on whose behalf the instrument is
being purchased and the account number of that third party; if there is
no account number, then the name, address and social security number, as
well as the taxpayer identification number, or alien identification
number, of such person;
(E) The date of purchase;
(F) The branch where the purchase occurred;
(G) The type(s) of instrument(s) purchased;
(H) The serial number(s) of each of the instrument(s) purchased;
(I) The dollar amount(s) of each of the instrument(s) purchased;
(J) The payee(s) on each of the instrument(s) purchased (for
cashier's checks and bank checks and drafts); and
(K) The amount of the purchase in currency.
(ii) In addition, the financial institution shall verify the
purchaser's name and address by examination of a document that contains
the name and address of the purchaser and normally is acceptable within
the banking community as a means of identification when cashing checks
for nondepositors, and shall record the specific identifying information
on the log (e.g., State of issuance and number of driver's license).
(b) Contemporaneous purchases of the same or different types of
instruments totaling $3,000 or more shall be treated as one purchase.
Multiple purchases during one business day totaling $3,000 or more shall
be treated as one purchase if an individual employee, director, officer,
or partner of the financial institution has knowledge that these
purchases have occurred. Multiple sales must be noted as such on the
log.
(c) The financial institution may maintain a single centralized
chronological log or it may maintain separate chronological logs by
branch. A financial institution also may keep a separate chronological
log for each type of instrument sold. If the financial institution
maintains a separate chronological log or logs for each branch, all of
the branch logs for a calendar month must be sent to a centralized
location by the fifteenth (15th) day after the end of the calendar month
for which the log was compiled. Financial institutions with branches in
more than one State may centralize the logs by State. A list of the
centralized locations and branches shall be available to the Secretary
upon request.
(d) Chronological logs shall be retained by the financial institution
for a period of five years.
(e) The chronological logs shall be available to the Secretary upon
request at any time.
(55 FR 20143, May 15, 1990)
31 CFR 103.29 Subpart C -- Records Required To Be Maintained
31 CFR 103.31 Determination by the Secretary.
The Secretary hereby determines that the records required to be kept
by this subpart have a high degree of usefulness in criminal, tax, or
regulatory investigations or proceedings.
31 CFR 103.32 Records to be made and retained by persons having
financial interests in foreign financial accounts.
Records of accounts required by 103.24 to be reported to the
Commissioner of Internal Revenue shall be retained by each person having
a financial interest in or signature or other authority over any such
account. Such records shall contain the name in which each such account
is maintained, the number or other designation of such account, the name
and address of the foreign bank or other person with whom such account
is maintained, the type of such account, and the maximum value of each
such account during the reporting period. Such records shall be
retained for a period of 5 years and shall be kept at all times
available for inspection as authorized by law. In the computation of
the period of 5 years, there shall be disregarded any period beginning
with a date on which the taxpayer is indicted or information instituted
on account of the filing of a false or fraudulent Federal income tax
return or failing to file a Federal income tax return, and ending with
the date on which final disposition is made of the criminal proceeding.
(37 FR 6912, Apr. 5, 1972, as amended at 52 FR 11444, Apr. 8, 1987)
31 CFR 103.33 Records to be made and retained by financial
institutions.
Each financial institution shall retain either the original or a
microfilm or other copy or reproduction of each of the following:
(a) A record of each extension of credit in an amount in excess of
$10,000, except an extension of credit secured by an interest in real
property, which record shall contain the name and address of the person
to whom the extension of credit is made, the amount thereof, the nature
or purpose thereof, and the date thereof;
(b) A record of each advice, request, or instruction received or
given regarding any transaction resulting (or intended to result and
later cancelled if such a record is normally made) in the transfer of
currency or other monetary instruments, funds, checks, investment
securities, or credit, of more than $10,000 to or from any person,
account, or place outside the United States.
(c) A record of each advice, request, or instruction given to another
financial institution or other person located within or without the
United States, regarding a transaction intended to result in the
transfer of funds, or of currency, other monetary instruments, checks,
investment securities, or credit, of more than $10,000 to a person,
account or place outside the United States.
(d) A record of such information for such period of time as the
Secretary may require in an order issued under 103.26(a), not to exceed
five years.
(Approved by the Office of Management and Budget under control number
1505-0063)
(37 FR 6912, Apr. 5, 1972, as amended at 52 FR 11444, Apr. 8, 1987;
54 FR 33679, Aug. 16, 1989)
31 CFR 103.34 Additional records to be made and retained by banks.
(a)(1) With respect to each certificate of deposit sold or redeemed
after May 31, 1978, or each deposit or share account opened with a bank
after June 30, 1972, a bank shall, within 30 days from the date such a
transaction occurs or an account is opened, secure and maintain a record
of the taxpayer identification number of the customer involved; or
where the account or certificate is in the names of two or more persons,
the bank shall secure the taxpayer identification number of a person
having a financial interest in the certificate or account. In the event
that a bank has been unable to secure, within the 30-day period
specified, the required identification, it shall nevertheless not be
deemed to be in violation of this section if (i) it has made a
reasonable effort to secure such identification, and (ii) it maintains a
list containing the names, addresses, and account numbers of those
persons from whom it has been unable to secure such identification, and
makes the names, addresses, and account numbers of those persons
available to the Secretary as directed by him. A bank acting as an
agent for another person in the purchase or redemption of a certificate
of deposit issued by another bank is responsible for obtaining and
recording the required taxpayer identification, as well as for
maintaining the records referred to in paragraphs (b) (11) and (12) of
this section. The issuing bank can satisfy the recordkeeping
requirement by recording the name and address of the agent together with
a description of the instrument and the date of the transaction. Where
a person is a non-resident alien, the bank shall also record the
person's passport number or a description of some other government
document used to verify his identity.
(2) The 30-day period provided for in paragraph (a)(1) of this
section shall be extended where the person opening the account has
applied for a taxpayer identification or social security number on Form
SS-4 or SS-5, until such time as the person maintaining the account has
had a reasonable opportunity to secure such number and furnish it to the
bank.
(3) A taxpayer identification number required under paragraph (a)(1)
of this section need not be secured for accounts or transactions with
the following: (i) Agencies and instrumentalities of Federal, state,
local or foreign governments; (ii) judges, public officials, or clerks
of courts of record as custodians of funds in controversy or under the
control of the court; (iii) aliens who are (A) ambassadors, ministers,
career diplomatic or consular officers, or (B) naval, military or other
attaches of foreign embassies and legations, and for the members of
their immediate families; (iv) aliens who are accredited
representatives of international organizations which are entitled to
enjoy privileges, exemptions and immunities as an international
organization under the International Organization Immunities Act of
December 29, 1945 (22 U.S.C. 288), and the members of their immediate
families; (v) aliens temporarily residing in the United States for a
period not to exceed 180 days; (vi) aliens not engaged in a trade or
business in the United States who are attending a recognized college or
university or any training program, supervised or conducted by any
agency of the Federal Government; (vii) unincorporated subordinate
units of a tax exempt central organization which are covered by a group
exemption letter, (viii) a person under 18 years of age with respect to
an account opened as a part of a school thrift savings program, provided
the annual interest is less than $10; (ix) a person opening a Christmas
club, vacation club and similar installment savings programs provided
the annual interest is less than $10; and (x) non-resident aliens who
are not engaged in a trade or business in the United States. In
instances described in paragraphs (a)(3), (viii) and (ix) of this
section, the bank shall, within 15 days following the end of any
calendar year in which the interest accrued in that year is $10 or more
use its best effort to secure and maintain the appropriate taxpayer
identification number or application form therefor.
(4) The rules and regulations issued by the Internal Revenue Service
under section 6109 of the Internal Revenue Code of 1954 shall determine
what constitutes a taxpayer identification number and whose number shall
be obtained in the case of an account maintained by one or more persons.
(b) Each bank shall, in addition, retain either the original or a
microfilm or other copy or reproduction of each of the following:
(1) Each document granting signature authority over each deposit or
share account, including any notations, if such are normally made, of
specific identifying information verifying the identity of the signer
(such as a driver's license number or credit card number);
(2) Each statement, ledger card or other record on each deposit or
share account, showing each transaction in, or with respect to, that
account;
(3) Each check, clean draft, or money order drawn on the bank or
issued and payable by it, except those drawn for $100 or less or those
drawn on accounts which can be expected to have drawn on them an average
of at least 100 checks per month over the calendar year or on each
occasion on which such checks are issued, and which are (i) dividend
checks, (ii) payroll checks, (iii) employee benefit checks, (iv)
insurance claim checks, (v) medical benefit checks, (vi) checks drawn on
government agency accounts, (vii) checks drawn by brokers or dealers in
securities, (viii) checks drawn on fiduciary accounts, (ix) checks drawn
on other financial institutions, or (x) pension or annuity checks;
(4) Each item in excess of $100 (other than bank charges or periodic
charges made pursuant to agreement with the customer), comprising a
debit to a customer's deposit or share account, not required to be kept,
and not specifically exempted, under paragraph (b)(3) of this section;
(5) Each item, including checks, drafts, or transfers of credit, of
more than $10,000 remitted or transferred to a person, account or place
outside the United States;
(6) A record of each remittance or transfer of funds, or of currency,
other monetary instruments, checks, investment securities, or credit, of
more than $10,000 to a person, account or place outside the United
States;
(7) Each check or draft in an amount in excess of $10,000 drawn on or
issued by a foreign bank which the domestic bank has paid or presented
to a nonbank drawee for payment;
(8) Each item, including checks, drafts or transfers of credit, of
more than $10,000 received directly and not through a domestic financial
institution, by letter, cable or any other means, from a bank, broker or
dealer in foreign exchange outside the United States;
(9) A record of each receipt of currency, other monetary instruments,
investment securities or checks, and of each transfer of funds or
credit, of more than $10,000 received on any one occasion directly and
not through a domestic financial institution, from a bank, broker or
dealer in foreign exchange outside the United States; and
(10) Records prepared or received by a bank in the ordinary course of
business, which would be needed to reconstruct a transaction account and
to trace a check in excess of $100 deposited in such account through its
domestic processing system or to supply a description of a deposited
check in excess of $100. This subparagraph shall be applicable only
with respect to demand deposits.
(11) A record containing the name, address, and taxpayer
identification number, if available, of the purchaser of each
certificate of deposit, as well as a description of the instrument, a
notation of the method of payment, and the date of the transaction.
(12) A record containing the name, address and taxpayer
identification number, if available, of any person presenting a
certificate of deposit for payment, as well as a description of the
instrument and the date of the transaction.
(13) Each deposit slip or credit ticket reflecting a transaction in
excess of $100 or the equivalent record for direct deposit or other wire
transfer deposit transactions. The slip or ticket shall record the
amount of any currency involved.
(Approved by the Office of Management and Budget under control number
1505-0063)
(38 FR 2175, Jan. 22, 1973, as amended at 38 FR 3509, Feb. 7, 1973;
43 FR 21672, May 19, 1978; 52 FR 11444, Apr. 8, 1987)
31 CFR 103.35 Additional records to be made and retained by brokers or
dealers in securities.
(a)(1) With respect to each brokerage account opened with a broker or
dealer in securities after June 30, 1972, by a person residing or doing
business in the United States or a citizen of the United States, such
broker or dealer shall within 30 days from the date such account is
opened, secure and maintain a record of the taxpayer identification
number of the person maintaining the account; or in the case of an
account of one or more individuals, such broker or dealer shall secure
and maintain a record of the social security number of an individual
having a financial interest in that account. In the event that a broker
or dealer has been unable to secure the identification required within
the 30-day period specified, it shall nevertheless not be deemed to be
in violation of this section if: (i) It has made a reasonable effort to
secure such identification, and (ii) it maintains a list containing the
names, addresses, and account numbers of those persons from whom it has
been unable to secure such identification, and makes the names,
addresses, and account numbers of those persons available to the
Secretary as directed by him. Where a person is a non-resident alien,
the broker or dealer in securities shall also record the person's
passport number or a description of some other government document used
to verify his identity.
(2) The 30-day period provided for in paragraph (a)(1) of this
section shall be extended where the person opening the account has
applied for a taxpayer identification or social security number on Form
SS-4 or SS-5, until such time as the person maintaining the account has
had a reasonable opportunity to secure such number and furnish it to the
broker or dealer.
(3) A taxpayer identification number for a deposit or share account
required under paragraph (a)(1) of this section need not be secured in
the following instances: (i) Accounts for public funds opened by
agencies and instrumentalities of Federal, state, local, or foreign
governments, (ii) accounts for aliens who are (a) ambassadors,
ministers, career diplomatic or consular officers, or (b) naval,
military or other attaches of foreign embassies, and legations, and for
the members of their immediate families, (iii) accounts for aliens who
are accredited representatives to international organizations which are
entitled to enjoy privileges, exemptions, and immunities as an
international organization under the International Organizations
Immunities Act of December 29, 1945 (22 U.S.C. 288), and for the members
of their immediate families, (iv) aliens temporarily residing in the
United States for a period not to exceed 180 days, (v) aliens not
engaged in a trade or business in the United States who are attending a
recognized college or university or any training program, supervised or
conducted by any agency of the Federal Government, and (vi)
unincorporated subordinate units of a tax exempt central organization
which are covered by a group exemption letter.
(b) Every broker or dealer in securities shall, in addition, retain
either the original or a microfilm or other copy or reproduction of each
of the following:
(1) Each document granting signature or trading authority over each
customer's account;
(2) Each record described in 240.17a-3(a) (1), (2), (3), (5), (6),
(7), (8), and (9) of Title 17, Code of Federal Regulations;
(3) A record of each remittance or transfer of funds, or of currency,
checks, other monetary instruments, investment securities, or credit, of
more than $10,000 to a person, account, or place, outside the United
States;
(4) A record of each receipt of currency, other monetary instruments,
checks, or investment securities and of each transfer of funds or
credit, of more than $10,000 received on any one occasion directly and
not through a domestic financial institution, from any person, account
or place outside the United States.
(Approved by the Office of Management and Budget under control number
1505-0063)
(37 FR 26518, Dec. 13, 1972, as amended at 38 FR 2176, Jan. 22, 1973;
52 FR 11444, Apr. 8, 1987)
31 CFR 103.36 Additional records to be made and retained by casinos.
(a) With respect to each deposit of funds, account opened or line of
credit extended after the effective date of these regulations, a casino
shall, at the time the funds are deposited, the account is opened or
credit is extended, secure and maintain a record of the social security
number of the person involved. Where the deposit, account or credit is
in the names of two or more persons, the casino shall secure the social
security number of each person having a financial interest in the
deposit, account or line of credit. In the event that a casino has been
unable to secure the required social security number, it shall not be
deemed to be in violation of this section if (1) it has made a
reasonable effort to secure such number and (2) it maintains a list
containing the names and permanent addresses of those persons from who
it has been unable to obtain social security numbers and makes the names
and addresses of those persons available to the Secretary upon request.
Where a person is a nonresident alien, the casino shall also record the
person's passport number or a description of some other government
document used to verify his identity.
(b) In addition, each casino shall retain either the original or a
microfilm or other copy or reproduction of each of the following:
(1) A record of each receipt (including but not limited to funds for
safekeeping or front money) of funds by the casino for the account
(credit or deposit) of any person. The record shall include the name,
permanent address and social security number of the person from whom the
funds were received, as well as the date and amount of the funds
received. If the person from whom the funds were received is a
non-resident alien, the person's passport number or a description of
some other government document used to verify the person's identity
shall be obtained and recorded;
(2) A record of each bookkeeping entry comprising a debit or credit
to a customer's deposit account or credit account with the casino;
(3) Each statement, ledger card or other record of each deposit
account or credit account with the casino, showing each transaction
(including deposits, receipts, withdrawals, disbursements or transfers)
in or with respect to, a customer's deposit account or credit account
with the casino;
(4) A record of each extension of credit in excess of $2500, the
terms and conditions of such extension of credit, and repayments. The
record shall include the customer's name, permanent address, social
security number, and the date and amount of the transaction (including
repayments). If the customer or person for whom the credit extended is
a non-resident alien, his passport number or description of some other
government document used to verify his identity shall be obtained and
recorded;
(5) A record of each advice, request or instruction received or given
by the casino for itself or another person with respect to a transaction
involving a person, account or place outside the United States
(including but not limited to communications by wire, letter, or
telephone). If the transfer outside the United States is on behalf of a
third party, the record shall include the third party's name, permanent
address, social security number, signature, and the date and amount of
the transaction. If the transfer is received from outside the United
States on behalf of a third party, the record shall include the third
party's name, permanent address, social security number, signature, and
the date and amount of the transaction. If the person for whom the
transaction is being made is a non-resident alien the record shall also
include the person's name, his passport number or a description of some
other government document used to verify his identity;
(6) Records prepared or received by the casino in the ordinary course
of business which would be needed to reconstruct a person's deposit
account or credit account with the casino or to trace a check deposited
with the casino through the casino's records to the bank of deposit;
(7) All records, documents or manuals required to be maintained by a
casino under state and local laws or regulations.
(8) All records which are prepared or used by a casino to monitor a
customer's gaming activity.
(c)(1) Casinos which input, store, or retain, in whole or in part,
for any period of time, any record required to be maintained by 103.33
or this section on computer disk, tape, or other machine-readable media
shall retain the same on computer disk, tape, or machine-readable media.
(2) All indexes, books, programs, record layouts, manuals, formats,
instructions, file descriptions, and similar materials which would
enable a person readily to access and review the records that are
described in 103.33 and this section and that are input, stored, or
retained on computer disk, tape, or other machine-readable media shall
be retained for the period of time such records are required to be
retained.
(Approved by the Office of Management and Budget under control
numbers 1505-0087 and 1505-0063)
(50 FR 5068, Feb. 6, 1985, as amended at 52 FR 11444, Apr. 8, 1987;
54 FR 1167, Jan. 12, 1989)
31 CFR 103.37 Additional records to be made and retained by currency
dealers or exchangers.
(a)(1) After July 7, 1987, each currency dealer or exchanger shall
secure and maintain a record of the taxpayer identification number of
each person for whom a transaction account is opened or a line of credit
is extended within 30 days after such account is opened or credit line
extended. Where a person is a non-resident alien, the currency dealer
or exchanger shall also record the person's passport number or a
description of some other government document used to verify his
identity. Where the account or credit line is in the names of two or
more persons, the currency dealer or exchanger shall secure the taxpayer
identification number of a person having a financial interest in the
account or credit line. In the event that a currency dealer or
exchanger has been unable to secure the identification required within
the 30-day period specified, it shall nevertheless not be deemed to be
in violation of this section if:
(i) It has made a reasonable effort to secure such identification,
and
(ii) It maintains a list containing the names, addresses, and account
or credit line numbers of those persons from whom it has been unable to
secure such identification, and makes the names, addresses, and account
or credit line numbers of those persons available to the Secretary as
directed by him.
(2) The 30-day period provided for in paragraph (a)(1) of this
section shall be extended where the person opening the account or credit
line has applied for a taxpayer identification or social security number
on Form SS-4 or SS-5, until such time as the person maintaining the
account or credit line has had a reasonable opportunity to secure such
number and furnish it to the currency dealer or exchanger.
(3) A taxpayer identification number for an account or credit line
required under paragraph (a)(1) of this section need not be secured in
the following instances:
(i) Accounts for public funds opened by agencies and
instrumentalities of Federal, state, local or foreign governments,
(ii) Accounts for aliens who are --
(A) Ambassadors, ministers, career diplomatic or consular officers,
or
(B) Naval, military or other attaches of foreign embassies, and
legations, and for members of their immediate families,
(iii) Accounts for aliens who are accredited representatives to
international organizations which are entitled to enjoy privileges,
exemptions, and immunities as an international organization under the
International Organizations Immunities Act of December 29, 1945 (22
U.S.C. 288), and for the members of their immediate families,
(iv) Aliens temporarily residing in the United States for a period
not to exceed 180 days,
(v) Aliens not engaged in a trade or business in the United States
who are attending a recognized college or any training program,
supervised or conducted by any agency of the Federal Government, and
(vi) Unincorporated subordinate units of a tax exempt central
organization which are covered by a group exemption letter.
(b) Each currency dealer or exchanger shall retain either the
original or a microfilm or other copy or reproduction of each of the
following:
(1) Statements of accounts from banks, including paid checks, charges
or other debit entry memoranda, deposit slips and other credit memoranda
representing the entries reflected on such statements;
(2) Daily work records, including purchase and sales slips or other
memoranda needed to identify and reconstruct currency transactions with
customers and foreign banks;
(3) A record of each exchange of currency involving transactions in
excess of $1000, including the name and address of the customer (and
passport number or taxpayer identification number unless received by
mail or common carrier) date and amount of the transaction and currency
name, country, and total amount of each foreign currency;
(4) Signature cards or other documents evidencing signature authority
over each deposit or security account, containing the name of the
depositor, street address, taxpayer identification number (TIN) or
employer identification number (EIN) and the signature of the depositor
or of a person authorized to sign on the account (if customer accounts
are maintained in a code name, a record of the actual owner of the
account);
(5) Each item, including checks, drafts, or transfers of credit, of
more than $10,000 remitted or transferred to a person, account or place
outside the United States;
(6) A record of each receipt of currency, other monetary instruments,
investment securities and checks, and of each transfer of funds or
credit, or more than $10,000 received on any one occasion directly and
not through a domestic financial institution, from any person, account
or place outside the United States;
(7) Records prepared or received by a dealer in the ordinary course
of business, that would be needed to reconstruct an account and trace a
check in excess of $100 deposited in such account through its internal
recordkeeping system to its depositary institution, or to supply a
description of a deposited check in excess of $100;
(8) A record maintaining the name, address and taxpayer
identification number, if available, of any person presenting a
certificate of deposit for payment, as well as a description of the
instrument and date of transaction;
(9) A system of books and records that will enable the currency
dealer or exchanger to prepare an accurate balance sheet and income
statement.
(Approved by the Office of Management and Budget under control number
1505-0063)
(52 FR 11444, Apr. 8, 1987)
31 CFR 103.38 Nature of records and retention period.
(a) Wherever it is required that there be retained either the
original or a microfilm or other copy or reproduction of a check, draft,
monetary instrument, investment security, or other similar instrument,
there shall be retained a copy of both front and back of each such
instrument or document, except that no copy need be retained of the back
of any instrument or document which is entirely blank or which contains
only standardized printed information, a copy of which is on file.
(b) Records required by this subpart to be retained by financial
institutions may be those made in the ordinary course of business by a
financial institution. If no record is made in the ordinary course of
business of any transaction with respect to which records are required
to be retained by this subpart, then such a record shall be prepared in
writing by the financial institution.
(c) The rules and regulations issued by the Internal Revenue Service
under 26 U.S.C. 6109 determine what constitutes a taxpayer
identification number and whose number shall be obtained in the case of
an account maintained by one or more persons.
(d) All records that are required to be retained by this part shall
be retained for a period of five years. Records or reports required to
be kept pursuant to an order issued under 103.26 of this part shall be
retained for the period of time specified in such order, not to exceed
five years. All such records shall be filed or stored in such a way as
to be accessible within a reasonable period of time, taking into
consideration the nature of the record, and the amount of time expired
since the record was made.
(Approved by the Office of Management and Budget under control number
1505-0063)
(37 FR 6912, Apr. 5, 1972. Redesignated at 50 FR 5068, Feb. 6, 1985,
and further redesignated and amended at 52 FR 11444, 11445, Apr. 8,
1987; 54 FR 33679, Aug. 16, 1989)
31 CFR 103.39 Person outside the United States.
For the purposes of this subpart, a remittance or transfer of funds,
or of currency, other monetary instruments, checks, investment
securities, or credit to the domestic account of a person whose address
is known by the person making the remittance or transfer, to be outside
the United States, shall be deemed to be a remittance or transfer to a
person outside the United States, except that, unless otherwise directed
by the Secretary, this section shall not apply to a transaction on the
books of a domestic financial institution involving the account of a
customer of such institution whose address is within approximately 50
miles of the location of the institution, or who is known to be
temporarily outside the United States.
(37 FR 6912, Apr. 5, 1972. Redesignated at 50 FR 5068, Feb. 6, 1985
and 52 FR 11444, Apr. 8, 1987)
31 CFR 103.39 Subpart D -- General Provisions
31 CFR 103.41 Dollars as including foreign currency.
Wherever in this part an amount is stated in dollars, it shall be
deemed to mean also the equivalent amount in any foreign currency.
31 CFR 103.42 Photographic or other reproductions of Government
obligations.
Nothing herein contained shall require or authorize the microfilming
or other reproduction of
(a) Currency or other obligation or security of the United States as
defined in 18 U.S.C. 8, or
(b) Any obligation or other security of any foreign government, the
reproduction of which is prohibited by law.
31 CFR 103.43 Availability of information.
(a) The Secretary may within his discretion disclose information
reported under this part for any reason consistent with the purposes of
the Bank Secrecy Act, including those set forth in paragraphs (b)
through (d) of this section.
(b) The Secretary may make any information set forth in any report
received pursuant to this part available to another agency of the United
States, to an agency of a state or local government or to an agency of a
foreign government, upon the request of the head of such department or
agency made in writing and stating the particular information desired,
the criminal, tax or regulatory purpose for which the information is
sought, and the official need for the information.
(c) The Secretary may make any information set forth in any report
received pursuant to this part available to the Congress, or any
committee or subcommittee thereof, upon a written request stating the
particular information desired, the criminal, tax or regulatory purpose
for which the information is sought, and the official need for the
information.
(d) The Secretary may make any information set forth in any report
received pursuant to this part available to any other department or
agency of the United States that is a member of the Intelligence
Community, as defined by Executive Order 12333 or any succeeding
executive order, upon the request of the head of such department or
agency made in writing and stating the particular information desired,
the national security matter with which the information is sought and
the official need therefor.
(e) Any information made available under this section to other
department or agencies of the United States, any state or local
government, or any foreign government shall be received by them in
confidence, and shall not be disclosed to any person except for official
purposes relating to the investigation, proceeding or matter in
connection with which the information is sought.
(f) The Secretary may require that a state or local government
department or agency requesting information under paragraph (b) of this
section pay fees to reimburse the Department of the Treasury for costs
incidental to such disclosure. The amount of such fees will be set in
accordance with the statute on fees for government services, 31 U.S.C.
9701.
(Approved by the Office of Management and Budget under control number
1505-0104)
(50 FR 42693, Oct. 22, 1985, as amended at 50 FR 46283, Nov. 7, 1985;
52 FR 35545, Sept. 22, 1987)
31 CFR 103.44 Disclosure.
All reports required under this part and all records of such reports
are specifically exempted from disclosure under section 552 of Title 5,
United States Code.
31 CFR 103.45 Exceptions, exemptions, and reports.
(a) The Secretary, in his sole discretion, may by written order or
authorization make exceptions to or grant exemptions from the
requirements of this part. Such exceptions or exemptions may be
conditional or unconditional, may apply to particular persons or to
classes of persons, and may apply to particular transactions or classes
of transactions. They shall, however, be applicable only as expressly
stated in the order of authorization, and they shall be revocable in the
sole discretion of the Secretary.
(b) The Secretary shall have authority to further define all terms
used herein.
(c)(1) The Secretary may, as an alternative to the reporting and
recordkeeping requirements for casinos in 103.22(a)(2) and
103.25(a)(2), and 103.36, grant exemptions to the casinos in any state
whose regulatory system substantially meets the reporting and
recordkeeping requirements of this part.
(2) In order for a state regulatory system to qualify for an
exemption on behalf of its casinos, the state must provide:
(i) That the Treasury Department be allowed to evaluate the
effectiveness of the state's regulatory system by periodic oversight
review of that system;
(ii) That the reports required under the state's regulatory system be
submitted to the Treasury Department within 15 days of receipt by the
state;
(iii) That any records required to be maintained by the casinos
relevant to any matter under this part and to which the state has access
or maintains under its regulatory system be made available to the
Treasury Department within 30 days of request;
(iv) That the Treasury Department be provided with periodic status
reports on the state's compliance efforts and findings;
(v) That all but minor violations of the state requirements be
reported to Treasury within 15 days of discovery; and
(vi) That the state will initiate compliance examinations of specific
institutions at the request of Treasury within a reasonable time, not to
exceed 90 days where appropriate, and will provide reports of these
examinations to Treasury within 15 days of completion or periodically
during the course of the examination upon the request of the Secretary.
If for any reason the state were not able to conduct an investigation
within a reasonable time, the state will permit Treasury to conduct the
investigation.
(3) Revocation of any exemption under this subsection shall be in the
sole discretion of the Secretary.
(38 FR 2176, Jan. 22, 1973, as amended at 50 FR 5069, Feb. 6, 1985;
50 FR 36875, Sept. 10, 1985)
31 CFR 103.46 Enforcement.
(a) Overall authority for enforcement and compliance, including
coordination and direction of procedures and activities of all other
agencies exercising delegated authority under this part, is delegated to
the Assistant Secretary (Enforcement).
(b) Authority to examine institutions to determine compliance with
the requirements of this part is delegated as follows:
(1) To the Comptroller of the Currency with respect to those
financial institutions regularly examined for safety and soundness by
national bank examiners;
(2) To the Board of Governors of the Federal Reserve System with
respect to those financial institutions regularly examined for safety
and soundness by Federal Reserve bank examiners;
(3) To the Federal Deposit Insurance Corporation with respect to
those financial institutions regularly examined for safety and soundness
by FDIC bank examiners;
(4) To the Federal Home Loan Bank Board with respect to those
financial institutions regularly examined for safety and soundness by
FHLBB bank examiners;
(5) To the Chairman of the Board of the National Credit Union
Administration with respect to those financial institutions regularly
examined for safety and soundness by NCUA examiners.
(6) To the Securities and Exchange Commission with respect to brokers
or dealers in securities;
(7) To the Commissioner of Customs with respect to 103.23 and
103.48;
(8) To the Commissioner of Internal Revenue with respect to all
financial institutions, except brokers or dealers in securities, not
currently examined by Federal bank supervisory agencies for soundness
and safety.
(c) Authority for investigating criminal violations of this part is
delegated as follows:
(1) To the Commissioner of Customs with respect to 103.23;
(2) To the Commissioner of Internal Revenue except with respect to
103.23.
(d) Authority for the imposition of civil penalties for violations of
this part lies with the Assistant Secretary, and in the Assistant
Secretary's absence, the Deputy Assistant Secretary (Law Enforcement).
(e) Periodic reports shall be made to the Assistant Secretary by each
agency to which compliance authority has been delegated under paragraph
(b) of this section. These reports shall be in such a form and
submitted at such intervals as the Assistant Secretary may direct.
Evidence of specific violations of any of the requirements of this part
may be submitted to the Assistant Secretary at any time.
(f) The Assistant Secretary or his delegate, and any agency to which
compliance has been delegated under paragraph (b) of this section, may
examine any books, papers, records, or other data of domestic financial
institutions relevant to the recordkeeping or reporting requirements of
this part.
(Sec. 21, Federal Deposit Insurance Act, 84 Stat. 1114, 12 U.S.C.
1829b; 84 Stat. 1116, 12 U.S.C. 1951-1959; and the Currency and
Foreign Transactions Reporting Act, 84 Stat. 1118, 31 U.S.C. 1051-1122)
(37 FR 6912, Apr. 5, 1972, as amended at 50 FR 42693, Oct. 22, 1985;
52 FR 11445, Apr. 8, 1987)
31 CFR 103.47 Civil penalty.
(a) For any willful violation, committed on or before October 12,
1984, of any reporting requirement for financial institutions under this
part or of any recordkeeping requirements of 103.22, the Secretary may
assess upon any domestic financial institution, and upon any partner,
director, officer, or employee thereof who willfully participates in the
violation, a civil penalty not to exceed $1,000.
(b) For any willful violation committed after October 12, 1984 and
before October 28, 1986, of any reporting requirement for financial
institutions under this part or of the recordkeeping requirements of
103.32, the Secretary may assess upon any domestic financial
institution, and upon any partner, director, officer, or employee
thereof who willfully participates in the violation, a civil penalty not
to exceed $10,000.
(c) For any willful violation of any recordkeeping requirement for
financial institutions, except violations of 103.32, under this part,
the Secretary may assess upon any domestic financial institution, and
upon any partner, director, officer, or employee thereof who willfully
participates in the violation, a civil penalty not to exceed $1,000.
(d) For any failure to file a report required under 103.23 or for
filing such a report containing any material omission or misstatement,
the Secretary may assess a civil penalty up to the amount of the
currency or monetary instruments transported, mailed or shipped, less
any amount forfeited under 103.48.
(e) For any willful violation of 103.53 committed after January 26,
1987, the Secretary may assess upon any person a civil penalty not to
exceed the amount of coins and currency involved in the transaction with
respect to which such penalty is imposed. The amount of any civil
penalty assessed under this paragraph shall be reduced by the amount of
any forfeiture to the United States in connection with the transaction
for which the penalty was imposed.
(f) For any willful violation committed after October 27, 1986, of
any reporting requirement for financial institutions under this part
(except 103.24, 103.25 or 103.32), the Secretary may assess upon any
domestic financial institution, and upon any partner, director, officer,
or employee thereof who willfully participates in the violation, a civil
penalty not to exceed the greater of the amount (not to exceed $100,000)
involved in the transaction or $25,000.
(g) For any willful violation committed after October 27, 1986, of
any requirement of 103.24, 103.25, or 103.32, the Secretary may
assess upon any person, a civil penalty:
(1) In the case of a violation of 103.25 involving a transaction, a
civil penalty not to exceed the greater of the amount (not to exceed
$100,000) of the transaction, or $25,000; and
(2) In the case of a violation of 103.24 or 103.32 involving a
failure to report the existence of an account or any identifying
information required to be provided with respect to such account, a
civil penalty not to exceed the greater of the amount (not to exceed
$100,000) equal to the balance in the account at the time of the
violation, or $25,000.
(h) For each negligent violation of any requirement of this part,
committed after October 27, 1986, the Secretary may assess upon any
financial institution a civil penalty not to exceed $500.
(37 FR 6912, Apr. 5, 1972, as amended at 52 FR 11445, Apr. 8, 1987;
52 FR 12641, Apr. 17, 1987)
31 CFR 103.48 Forfeiture of currency or monetary instruments.
Any currency or other monetary instruments which are in the process
of any transportation with respect to which a report is required under
103.23 are subject to seizure and forfeiture to the United States if
such report has not been filed as required in 103.25, or contains
material omissions or misstatements. The Secretary may, in his sole
discretion, remit or mitigate any such forfeiture in whole or in part
upon such terms and conditions as he deems reasonable.
31 CFR 103.49 Criminal penalty.
(a) Any person who willfully violates any provision of Title I of
Pub. L. 91-508, or of this part authorized thereby may, upon conviction
thereof, be fined not more than $1,000 or be imprisoned not more than 1
year, or both. Such person may in addition, if the violation is of any
provision authorized by Title I of Pub. L. 91-508 and if the violation
is committed in furtherance of the commission of any violation of
Federal law punishable by imprisonment for more than 1 year, be fined
not more than $10,000 or be imprisoned not more than 5 years, or both.
(b) Any person who willfully violates any provision of Title II of
Pub. L. 91-508, or of this part authorized thereby, may, upon
conviction thereof, be fined not more than $250,000 or be imprisoned not
more than 5 years, or both.
(c) Any person who willfully violates any provision of Title II of
Pub. L. 91-508, or of this part authorized thereby, where the violation
is either
(1) Committed while violating another law of the United States, or
(2) Committed as part of a pattern of any illegal activity involving
more than $100,000 in any 12-month period, may, upon conviction thereof,
be fined not more than $500,000 or be imprisoned not more than 10 years,
or both.
(d) Any person who knowingly makes any false, fictitious or
fraudulent statement or representation in any report required by this
part may, upon conviction thereof, be fined not more than $10,000 or be
imprisoned not more than 5 years, or both.
(37 FR 6912, Apr. 5, 1972, as amended at 50 FR 18479, May 1, 1985;
53 FR 4138, Feb. 12, 1988)
31 CFR 103.50 Enforcement authority with respect to transportation of
currency or monetary instruments.
(a) If a customs officer has reasonable cause to believe that there
is a monetary instrument being transported without the filing of the
report required by 103.23 and 103.25 of this chapter, he may stop and
search, without a search warrant, a vehicle, vessel, aircraft, or other
conveyance, envelope or other container, or person entering or departing
from the United States with respect to which or whom the officer
reasonably believes is transporting such instrument.
(b) If the Secretary has reason to believe that currency or monetary
instruments are in the process of transportation and with respect to
which a report required under 103.23 has not been filed or contains
material omissions or misstatements, he may apply to any court of
competent jurisdiction for a search warrant. Upon a showing of probable
cause, the court may issue a warrant authorizing the search of any or
all of the following:
(1) One or more designated persons.
(2) One or more designated or described places or premises.
(3) One or more designated or described letters, parcels, packages,
or other physical objects.
(4) One or more designated or described vehicles. Any application
for a search warrant pursuant to this section shall be accompanied by
allegations of fact supporting the application.
(c) This section is not in derogation of the authority of the
Secretary under any other law or regulation.
(37 FR 6912, Apr. 5, 1972, as amended at 50 FR 18479, May 1, 1985)
31 CFR 103.51 Access to records.
Except as provided in 103.34(a)(1), 103.35(a)(1), and 103.36(a) and
except for the purpose of assuring compliance with the recordkeeping and
reporting requirements of this part, this part does not authorize the
Secretary or any other person to inspect or review the records required
to be maintained by subpart C of this part. Other inspection, review or
access to such records is governed by other applicable law.
(50 FR 5069, Feb. 6, 1985)
31 CFR 103.52 Rewards for informants.
(a) If an individual provides original information which leads to a
recovery of a criminal fine, civil penalty, or forfeiture, which exceeds
$50,000, for a violation of the provisions of the Act or of this part,
the Secretary may pay a reward to that individual.
(b) The Secretary shall determine the amount of the reward to be paid
under this section; however, any reward paid may not be more than 25
percent of the net amount of the fine, penalty or forfeiture collected,
or $150,000, whichever is less.
(c) An officer or employee of the United States, a State, or a local
government who provides original information described in paragraph (a)
in the performance of official duties is not eligible for a reward under
this section.
(50 FR 18479, May 1, 1985)
31 CFR 103.53 Structured transactions.
No person shall for the purpose of evading the reporting requirements
of 103.22 with respect to such transaction:
(a) Cause or attempt to cause a domestic financial institution to
fail to file a report required under 103.22;
(b) Cause or attempt to cause a domestic financial institution to
file a report required under 103.22 that contains a material omission
or misstatement of fact; or
(c) Structure (as that term is defined in 103.11(n) of this part) or
assist in structuring, or attempt to structure or assist in structuring,
any transaction with one or more domestic financial institutions.
(52 FR 11446, Apr. 8, 1987, as amended at 54 FR 3027, Jan. 23, 1989)
31 CFR 103.53 Subpart E -- Summons
Source: 52 FR 23979, June 26, 1987, unless otherwise noted.
31 CFR 103.61 General.
For any investigation for the purpose of civil enforcement of
violations of the Currency and Foreign Transactions Reporting Act, as
amended (31 U.S.C. 5311 through 5324), section 21 of the Federal Deposit
Insurance Act (12 U.S.C. 1829b), section 411 of the National Housing Act
(12 U.S.C. 1730d), or Chapter 2 of Pub. L. 91-508 (12 U.S.C. 1951 et
seq.), or any regulation under any such provision, the Secretary or
delegate of the Secretary may summon a financial institution or an
officer or employee of a financial institution (including a former
officer or employee), or any person having possession, custody, or care
of any of the records and reports required under the Currency and
Foreign Transactions Reporting Act or this part to appear before the
Secretary or his delegate, at a time and place named in the summons, and
to give testimony, under oath, and be examined, and to produce such
books, papers, records, or other data as may be relevant or material to
such investigation.
31 CFR 103.62 Persons who may issue summons.
For purposes of this part, the following officials are hereby
designated as delegates of the Secretary who are authorized to issue a
summons under 103.61, solely for the purposes of civil enforcement of
this part:
(a) Office of the Secretary. The Assistant Secretary (Enforcement),
the Deputy Assistant Secretary (Law Enforcement), and the Director,
Office of Financial Enforcement.
(b) Internal Revenue Service. Except with respect to 103.23 of this
part, the Commissioner, the Deputy Commissioner, the Associate
Commissioner (Operations), the Assistant Commissioner (Examination),
Regional Commissioners, Assistant Regional Commissioners (Examination),
District Directors, District Examination Division Chiefs, and, for the
purposes of perfecting seizures and forfeitures related to civil
enforcement of this part, the Assistant Commissioner (Criminal
Investigation), Assistant Regional Commissioners (Criminal
Investigation), and District Criminal Investigation Division Chiefs.
(c) Customs Service. With respect to 103.23 of this part, the
Commissioner, the Deputy Commissioner, the Assistant Commissioner
(Enforcement), Regional Commissioners, Assistant Regional Commissioners
(Enforcement), and Special Agents in Charge.
31 CFR 103.63 Contents of summons.
(a) Summons for testimony. Any summons issued under 103.61 of this
part to compel the appearance and testimony of a person shall state:
(1) The name, title, address, and telephone number of the person
before whom the appearance shall take place (who may be a person other
than the persons who are authorized to issue such a summons under
103.62 of this part);
(2) The address to which the person summoned shall report for the
appearance;
(3) The date and time of the appearance; and
(4) The name, title, address, and telephone number of the person who
has issued the summons.
(b) Summons of books, papers, records, or data. Any summons issued
under 103.61 of this part to require the production of books, papers,
records, or other data shall describe the materials to be produced with
reasonable specificity, and shall state:
(1) The name, title, address, and telephone number of the person to
whom the materials shall be produced (who may be a person other than the
persons who are authorized to issue such a summons under 103.62 of this
part);
(2) The address at which the person summoned shall produce the
materials, not to exceed 500 miles from any place where the financial
institution operates or conducts business in the United States;
(3) The specific manner of production, whether by personal delivery,
by mail, or by messenger service;
(4) The date and time for production; and
(5) The name, title, address, and telephone number of the person who
has issued the summons.
31 CFR 103.64 Service of summons.
(a) Who may serve. Any delegate of the Secretary authorized under
103.62 of this part to issue a summons, or any other person authorized
by law to serve summonses or other process, is hereby authorized to
serve a summons issued under this part.
(b) Manner of service. Service of a summons may be made --
(1) Upon any person, by registered mail, return receipt requested,
directed to the person summoned;
(2) Upon a natural person by personal delivery; or
(3) Upon any other person by delivery to an officer, managing or
general agent, or any other agent authorized to receive service of
process.
(c) Certificate of service. The summons shall contain a certificate
of service to be signed by the server of the summons. On the hearing of
an application for enforcement of the summons, the certificate of
service signed by the person serving the summons shall be evidence of
the facts it states.
31 CFR 103.65 Examination of witnesses and records.
(a) General. Any delegate of the Secretary authorized under 103.62
of this part to issue a summons, or any officer or employee of the
Treasury Department or any component thereof who is designated by that
person (whether in the summons or otherwise), is hereby authorized to
receive evidence and to examine witnesses pursuant to the summons. Any
person authorized by law may administer any oaths and affirmations that
may be required under this subpart.
(b) Testimony taken under oath. Testimony of any person under this
part may be taken under oath, and shall be taken down in writing by the
person examining the person summoned or shall be otherwise transcribed.
After the testimony of a witness has been transcribed, a copy of that
transcript shall be made available to the witness upon request, unless
for good cause the person issuing the summons determines, under 5 U.S.C.
555, that a copy should not be provided. If such a determination has
been made, the witness shall be limited to inspection of the official
transcript of the testimony.
(c) Disclosure of summons, testimony, or records. Unless the
Secretary or a delegate of the Secretary listed under 103.62(a) of this
part so authorizes in writing, or it is otherwise required by law, no
delegate of the Secretary listed under 103.62 (b) or (c) of this part
or other officer or employee of the Treasury Department or any component
thereof shall --
(1) Make public the name of any person to whom a summons has been
issued under this part, or release any information to the public
concerning that person or the issuance of a summons to that person prior
to the time and date set for that person's appearance or production of
records; or
(2) Disclose any testimony taken (including the name of the witness)
or material presented pursuant to the summons, to any person other than
an officer or employee of the Treasury Department or of any component
thereof.
Nothing in the preceding sentence shall preclude a delegate of the
Secretary, or other officer or employee of the Treasury Department or
any component thereof, from disclosing testimony taken, or material
presented pursuant to a summons issued under this part, to any person in
order to obtain necessary information for investigative purposes
relating to the performance of official duties, or to any officer or
employee of the Department of Justice in connection with a possible
violation of Federal law.
31 CFR 103.66 Enforcement of summons.
In the case of contumacy by, or refusal to obey a summons issued to,
any person under this part, the Secretary or any delegate of the
Secretary listed under 103.62 of this part shall refer the matter to
the Attorney General or delegate of the Attorney General (including any
United States Attorney or Assistant United States Attorney, as
appropriate), who may bring an action to compel compliance with the
summons in any court of the United States within the jurisdiction of
which the investigation which gave rise to the summons being or has been
carried on, the jurisdiction in which the person summoned is a resident,
or the jurisdiction in which the person summoned carries on business or
may be found. When a referral is made by a delegate of the Secretary
other than a delegate named in 103.62(a) of this part, prompt
notification of the referral must be made to the Director, Office of
Financial Enforcement, Office of the Assistant Secretary (Enforcement).
The court may issue an order requiring the person summoned to appear
before the Secretary or delegate of the Secretary to produce books,
papers, records, or other data, to give testimony as may be necessary in
order to explain how such material was compiled and maintained, and to
pay the costs of the proceeding. Any failure to obey the order of the
court may be punished by the court as a contempt thereof. All process
in any case under this section may be served in any judicial district in
which such person may be found.
31 CFR 103.67 Payment of expenses.
Persons summoned under this part shall be paid the same fees and
mileage for travel in the United States that are paid witnesses in the
courts of the United States. The United States shall not be liable for
any other expense incurred in connection with the production of books,
papers, records, or other data under this part.
31 CFR 103.67 Subpart F -- Administrative Rulings
Source: 52 FR 35546, Sept. 22, 1987, unless otherwise noted.
31 CFR 103.70 Scope.
This subpart provides that the Assistant Secretary (Enforcement), or
his designee, either unilaterally or upon request, may issue
administrative rulings interpreting the application of part 103.
31 CFR 103.71 Submitting requests.
(a) Each request for an administrative ruling must be in writing and
contain the following information:
(1) A complete description of the situation for which the ruling is
requested,
(2) A complete statement of all material facts related to the subject
transaction,
(3) A concise and unambiguous question to be answered,
(4) A statement certifying, to the best of the requestor's knowledge
and belief, that the question to be answered is not applicable to any
ongoing state or federal investigation, litigation, grand jury
proceeding, or proceeding before any other governmental body involving
either the requestor, any other party to the subject transaction, or any
other party with whom the requestor has an agency relationship,
(5) A statement identifying any information in the request that the
requestor considers to be exempt from disclosure under the Freedom of
Information Act, 5 U.S.C. 552, and the reason therefor,
(6) If the subject situation is hypothetical, a statement justifying
why the particular situation described warrants the issuance of a
ruling,
(7) The signature of the person making the request, or
(8) If an agent makes the request, the signature of the agent and a
statement certifying the authority under which the request is made.
(b) A request filed by a corporation shall be signed by a corporate
officer and a request filed by a partnership shall be signed by a
partner.
(c) A request may advocate a particular proposed interpretation and
may set forth the legal and factual basis for that interpretation.
(d) Requests shall be addressed to: Director, Office of Financial
Enforcement, Office of the Assistant Secretary (Enforcement), U.S.
Department of the Treasury, 1500 Pennsylvania Avenue NW., Room 4320,
Washington, DC 20220.
(e) The requester shall advise the Director, Office of Financial
Enforcement, immediately in writing of any subsequent change in any
material fact or statement submitted with a ruling request in conformity
with paragraph (a) of this section.
(Approved by the Office of Management and Budget under control number
1505-0105)
31 CFR 103.72 Nonconforming requests.
The Director, Office of Financial Enforcement, shall notify the
requester if the ruling request does not conform with the requirements
of 103.71. The notice shall be in writing and shall describe the
requirements that have not been met. A request that is not brought into
conformity with such requirements within 30 days from the date of such
notice, unless extended for good cause by the Office of Financial
Enforcement, shall be treated as though it were withdrawn.
(Approved by the Office of Management and Budget under control number
1505-0105)
31 CFR 103.73 Oral communications.
(a) The Office of the Assistant Secretary (Enforcement) will not
issue administrative rulings in response to oral requests. Oral
opinions or advice by Treasury, the Customs Service, the Internal
Revenue Service, the Office of the Comptroller of the Currency, or any
other bank supervisory agency personnel, regarding the interpretation
and application of this part, do not bind the Treasury Department and
carry no precedential value.
(b) A person who has made a ruling request in conformity with 103.71
may request an opportunity for oral discussion of the issues presented
in the request. The request should be made to the Director, Office of
Financial Enforcement, and any decision to grant such a conference is
wholly within the discretion of the Director. Personal conferences or
telephone conferences may be scheduled only for the purpose of affording
the requester an opportunity to discuss freely and openly the matters
set forth in the administrative ruling request. Accordingly, the
conferees will not be bound by any argument or position advocated or
agreed to, expressly or impliedly, during the conference. Any new
arguments or facts put forth by the requester at the meeting must be
reduced to writing by the requester and submitted in conformity with
103.71 before they may be considered in connection with the request.
(Approved by the Office of Management and Budget under control number
1505-0105)
31 CFR 103.74 Withdrawing requests.
A person may withdraw a request for an administrative ruling at any
time before the ruling has been issued.
31 CFR 103.75 Issuing rulings.
The Assistant Secretary (Enforcement), or his designee may issue a
written ruling interpreting the relationship between part 103 and each
situation for which such a ruling has been requested in conformity with
103.71. A ruling issued under this section shall bind the Treasury
Department only in the event that the request describes a specifically
identified actual situation. A ruling issued under this section shall
have precedential value, and hence may be relied upon by others
similarly situated, only if it is published or will be published by the
Office of Financial Enforcement in the Federal Register. Rulings with
precedential value will be published periodically in the Federal
Register and yearly in the Appendix to this part. All rulings with
precedential value will be available by mail to any person upon written
request specifically identifying the ruling sought. Treasury will make
every effort to respond to each requestor within 90 days of receiving a
request.
(Approved by the Office of Management and Budget under control number
1505-0105)
31 CFR 103.76 Modifying or rescinding rulings.
(a) The Assistant Secretary (Enforcement), or his designee may modify
or rescind any ruling made pursuant to 103.75:
(1) When, in light of changes in the statute or regulations, the
ruling no longer sets forth the interpretation of the Assistant
Secretary (Enforcement) with respect to the described situation,
(2) When any fact or statement submitted in the original ruling
request is found to be materially inaccurate or incomplete, or
(3) For other good cause.
(b) Any person may submit to the Assistant Secretary (Enforcement) a
written request that an administrative ruling be modified or rescinded.
The request should conform to the requirements of 103.71, explain why
rescission or modification is warranted, and refer to any reasons in
paragraph (a) of this section that are relevant. The request may
advocate an alternative interpretation and may set forth the legal and
factual basis for that interpretation.
(c) Treasury shall modify an existing administrative ruling by
issuing a new ruling that rescinds the relevant prior ruling. Once
rescinded, an administrative ruling shall no longer have any
precedential value.
(d) An administrative ruling may be modified or rescinded
retroactively with respect to one or more parties to the original ruling
request if the Assistant Secretary determines that:
(1) A fact or statement in the original ruling request was materially
inaccurate or incomplete,
(2) The requestor failed to notify in writing the Office of
Enforcement of a material change to any fact or statement in the
original request, or
(3) A party to the original request acted in bad faith when relying
upon the ruling.
(Approved by the Office of Management and Budget under control number
1505-0105)
31 CFR 103.77 Disclosing information.
(a) Any part of any administrative ruling, including names,
addresses, or information related to the business transactions of
private parties, may be disclosed pursuant to a request under the
Freedom of Information Act, 5 U.S.C. 552. If the request for an
administrative ruling contains information which the requestor wishes to
be considered for exemption from disclosure under the Freedom of
Information Act, the requestor should clearly identify such portions of
the request and the reasons why such information should be exempt from
disclosure.
(b) A requestor claiming an exemption from disclosure will be
notified, at least 10 days before the administrative ruling is issued,
of a decision not to exempt any of such information from disclosure so
that the underlying request for an administrative ruling can be
withdrawn if the requestor so chooses.
(Approved by the Office of Management and Budget under control number
1505-0105)
31 CFR 103.77 Pt. 103, App.
31 CFR 103.77 Appendix -- Administrative Rulings
What action should a financial institution take when it believes that
it is being misused by persons who are intentionally structuring
transactions to evade the reporting requirement or engaging in
transactions that may involve illegal activity such as drug trafficking,
tax evasion or money laundering?
A teller at X State Bank notices that the same person comes into the
bank each day and purchases, with cash, between $9,000 and $9,900 in
cashier's checks. Even when aggregated, these purchases never exceed
$10,000 during any one business day. The teller also notices that this
person tries to go to different tellers for each transaction and is very
reluctant to provide information about his frequent transactions or
other information such as name, address, etc. Likewise, the payees on
these cashier's checks all have common names such as ''John Smith'' or
''Mary Jones.'' The teller informs the bank's compliance officer that
she believes that this person is structuring his transactions in order
to evade the reporting requirements under the Bank Secrecy Act. X State
Bank wants to know what actions it should take in this situation or in
any other situation where a transaction or a person conducting a
transaction appears suspicious.
As it appears that the person may be intentionally structuring the
transactions to evade the Bank Secrecy Act reporting requirements, X
State Bank should immediately telephone the local office of the Internal
Revenue Service (''IRS'') and speak to a Special Agent in the IRS
Criminal Investigation Division, or should call 1-800-BSA-CTRS, where
his call will be referred to a Special Agent.
Any information provided to the IRS should be given within the
confines of 1103(c) of the Right to Financial Privacy Act. 12 U.S.C.
3401-3422. Section 1103(c) of that Act permits a financial instituiton
to notify a government authority of information relevant to a possible
violation of any statute or regulation. Such information may consist of
the names of any individuals or corporate entities involved in the
suspicious transactions; account numbers; home and business addresses;
social security numbers; type of account; interest paid on account;
location of the branch or office where the suspicious transaction
occurred; a specification of the offense that the financial institution
believes has been committed; and a description of the activities giving
rise to the bank's suspicion. S. Rep. 99-433, 99th Cong., 2d Sess.,
pp. 15-16.
Additionally, the bank may be required, by the Federal regulatory
agency which supervises it, to submit a criminal referral form. Thus,
the bank should check with its regulatory agency to determine whether a
referral form should be submitted.
Lastly, under the facts as described above, X State Bank is not
required to file a Currency Transaction Report (''CTR'') because the
currency transaction (i.e. purchase of cashier's checks) did not exceed
$10,000 during one business day. If the bank had found that on a
particular day the person had in fact used a total of more than $10,000
in currency to purchase cashier's checks, but had each individual
cashier's check made out in amounts of less than $10,000, the bank is
obligated to file a CTR, and should follow the other steps described
above.
If X State Bank notices that a person may be misusing it by
intentionally structuring transactions to evade the BSA reporting
requirements or engaging in transactions that may involve other illegal
activity, the bank should telephone the local office of the Internal
Revenue Service, Criminal Investigation Division, and report that
information to a Special Agent, or should call 1-800-BSA-CTRS. In
addition, the Federal regulatory agency which supervises X State Bank
may require the bank to submit a criminal referral form. All
disclosures to the Government should be made in accordance with the
provisions of the Right to Financial Privacy Act.
When, if ever, should a bank file a CMIR on behalf of its customer,
when the customer is importing or exporting more than $10,000 in
currency or monetary instruments?
A customer walks into B National Bank (''B'') with $15,000 in cash
for deposit into her account. As is required, the bank teller begins to
fill out a Currency Transaction Report (''CTR'', IRS Form 4789) in order
to report a transaction in currency of more than $10,000. While the
teller is filling out the CTR, the customer mentions to the teller that
she has just received the money in a letter from a relative in France.
Should the teller also file a CMIR, either on the customer's behalf or
on the bank's behalf?
B National Bank should not file a CMIR when a customer deposits
currency in excess of $10,000 into her account, even if the bank has
knowledge that the customer received the currency from a place outside
the United States. 31 CFR 103.23 requires that a CMIR be filed by
anyone who transports, mails, ships or receives, or attempts, causes or
attempts to cause the transportation, mailing, shipping or receiving of
currency or monetary instruments in excess of $10,000, from or to a
place outside the United States. The term ''monetary instruments''
includes currency and instruments such as negotiable instruments
endorsed without restriction. See 31 CFR 103.11(k).
The obligation to file the CMIR is solely on the person who
transports, mails, ships or receives, or causes or attempts to
transport, mail, ship or receive. No other person is under any
obligation to file a CMIR. Thus, if a customer walks into the bank and
declares that he or she has received or transported currency in an
aggregate amount exceeding $10,000 from a place outside the United
States and wishes to deposit the currency into his or her account, the
bank is under no obligation to file a CMIR on the customer's behalf.
Likewise, because the bank itself did not receive the money from a
customer outside the United States, it has no obligation to file a CMIR
on its own behalf. The same holds true if a customer declares his
intent to transport currency or monetary instruments in excess of
$10,000 to a place outside the United States.
However, the bank is strongly encouraged to inform the customer of
the CMIR reporting requirement. If the bank has knowledge that the
customer is aware of the CMIR reporting requirement, but is nevertheless
disregarding the requirement or if information about the transaction is
otherwise suspicious, the bank should contact the local office of the
U.S. Customs Service or 1-800-BE ALERT. The United States Customs
Service has been delegated authority by the Assistant Secretary
(Enforcement) to investigate criminal violations of 31 CFR 103.23. See
31 CFR 103.36(c)(1).
Any information provided to Customs should be given within the
confines of section 1103(c) of the Right to Financial Privacy Act, 12
U.S.C. 3401-3422. Section 1103(c) permits a financial institution to
notify a Government authority of information relevant to a possible
violation of any statute or regulation. Such information may consist of
the name (including those of corporate entities) of any individual
involved in the suspicious transaction; account numbers; home and
business addresses; social security numbers; type of account;
interest paid on account; location of branch where the suspicious
transaction occurred; a specification of the offense that the financial
institution believes has been committed; and a description of the
activities giving rise to the bank's suspicions. See S. Rep. 99-433,
99th Cong., 2nd Sess., pp. 15-16. Therefore, under the facts above, the
teller need only file a CTR for the deposit of the customer's $15,000 in
currency.
A previous interpretation of 103.23(b) by Treasury held that if a
bank received currency or monetary instruments over the counter from a
person who may have transported them into the United States, and knows
that such items have been transported into the country, it must file a
report on Form 4790 if a complete and truthful report has not been filed
by the customer. See 31 CFR 103 appendix, 103.23, interpretation 2, at
364 (1987). This ruling hereby supersedes that interpretation.
A bank should not file a CMIR when a customer deposits currency or
monetary instruments in excess of $10,000 into her account even if the
bank has knowledge that the currency or monetary instruments were
received or transported from a place outside the United States. 31 CFR
103.23. The same is true if the bank has knowledge that the customer
intends to transport the currency or monetary instruments to a place
outside the United States. However, the bank is required to file a CTR
if it receives in excess of $10,000 in cash from its customer, and is
strongly encouraged to inform the customer of the CMIR requirements. In
addition, if the bank has knowledge that the customer is aware of the
CMIR reporting requirement and is nevertheless planning to disregard it
or if the transaction is otherwise suspicious, the bank should notify
the local office of the United States Customs Service (or 1-800-Be
Alert) of the suspicious transaction. Such notice should be made within
the confines of the Right to Financial Privacy Act, 12 U.S.C. 3403(c).
Whether a bank may exempt ''cash-back'' transactions of a customer
whose primary business is of a type that may be exempted either
unilaterally by the bank or pursuant to additional authority granted by
the IRS.
The ABC Grocery (''ABC''), a retail grocery store, has an account at
the X State Bank for its daily deposits of currency. Because ABC
regularly and frequently deposits amounts ranging from $20,000 to
$30,000, the bank has properly granted ABC an exemption for daily
deposits up to a limit of $30,000.
Recently, ABC began providing its customers with a check-cashing
service as an adjunct to its primary business of selling groceries.
ABC's primary business still consists of the sale of groceries.
However, the unexpectedly heavy demand for ABC's check-cashing service
has required ABC to maintain a substantially greater quantity of cash in
the store than was necessary for the grocery business in the past. To
facilitate the operations of its check-cashing service, ABC is
presenting the bank with large numbers of checks in ''cash-back''
transactions, rather than depositing the checks into its account and
withdrawing cash from that account. X State Bank has just been
presented with a ''cash-back'' transaction wherein an employee of ABC is
exchanging $15,000 worth of checks for cash. How should the bank treat
this transaction?
A cash back transaction is one where one or more checks or other
monetary instruments are presented in exchange for cash or a portion of
the checks or monetary instruments are deposited while the remainder is
exchanged for cash. ''Cash back'' transactions can never be exempted
from the Bank Secrecy Act reporting requirements. Thus, the bank must
file a Currency Transaction Report on IRS Form 4789 reporting this
$15,000 ''cash back'' transaction, even though the customer's account
has been granted an exemption for daily deposits of up to $30,000. This
is because 103.22(b)(i) permits a bank to exempt only ''(d)eposits or
withdrawals of currency from an existing account by an established
depositor who is a United States resident and operates a retail type of
business in the United States'' (emphasis added). As ''cash-back''
transactions do not constitute either a ''deposit or withdrawal of
currency'' within the meaning of the regulations, the bank must report
on a CTR any ''cash-back'' transaction that results in the transfer of
more than $10,000 in currency to a customer during a single banking day,
regardless of whether the customer has properly been granted an
exemption for its deposits or withdrawals.
Moreover, because ''cash back'' transactions are never exemptible,
the bank may not unilaterally exempt ''cash-back'' transactions by ABC,
or seek additional authority from the IRS to grant a special exemption
for ABC's ''cash-back'' transactions. Instead, the bank must report
ABC's ''cash back'' transaction on a CTR, listing it as a $15,000
''check cashed'' transaction.
A bank may never grant a unilateral exemption, or obtain additional
authority from the IRS to grant a special exemption to the ''cash-back''
transactions of a customer. A ''cash back'' transaction is one where
one or more checks or other monetary instruments are presented in
exchange for cash or a portion of the checks or monetary instruments are
deposited while the remainder is exchanged for cash. If a bank handles
a ''cash-back'' transaction that results in the transfer of more than
$10,000 to a customer during a single banking day, it must report that
transaction on IRS Form 4789, the Currency Transaction Report, as a
''check cashed'' transaction, regardless of whether the customer has
been properly granted an exemption for daily deposits or withdrawals.
If a bank has exempted a single account of a customer into which
multiple establishments of that customer make deposits, must the bank
list all of the establishments on its exemption list or may the bank
list only the 103.22(f) information of the customer's headquarters or
its principal business establishment on its exemption list?
A fast food company operates a chain of fast-food restaurants in
several states. In New York, the company has established a single
deposit account at Bank A, into which all of the company's
establishments in that area make deposits. In Connecticut, the company
has established ten bank accounts at Bank B; each of the company's ten
establishments in Connecticut have been assigned a separate account into
which it makes deposits. Banks A and B have properly exempted the
company's accounts, but now seek guidance on the manner in which they
should add these accounts to their exemption lists. All of the
company's establishments use the same taxpayer identification number
(''TIN'').
Under the regulations, the bank must keep ''in a centralized list,''
103.22(f) information for ''each depositor that has engaged in currency
transactions which have not been reported because of (an) exemption * *
*'' However, where all of the company's establishments deposit into one
exempt account as at Bank A, above, the bank need only maintain
103.22(f) information on its list for the customer's corporate
headquarters or the principal establishment that obtained the exemption.
The bank may, but is not required to, list identifying information for
all of the customers' establishments depositing into the one account.
If the bank chooses to list only the information for the customer's
headquarters or principal establishment, it should briefly note that on
the exemption list and should ensure that the individual addresses for
each establishment are readily available upon request. Where each of
the company's establishments deposit into separate exempt accounts as at
Bank B, the bank must maintain separate 103.22(f) information on the
exemption list for each establishment.
Under 103.22(b)(2) (i), (ii), and (iv) and 103.22(e) of the
regulation, a bank can only grant an exemption for ''an existing account
(of) an established depositor who is a United States resident.'' Under
these provisions, therefore, the bank can only grant an exemption for an
existing individual account, not for an individual customer or group of
accounts. Thus, if a customer has a separate account for each of its
business establishments, the bank must consider each account for a
separate exemption. If the bank grants exemptions for more than one
account, it should prepare a separate exemption statement and establish
a separate dollar limit for each account.
Once an exemption has been granted for an account, 103.22(f)
requires the bank to maintain a centralized exemption list that includes
the name, address, business, types of transactions exempted, the dollar
limit of the exemption, taxpayer identification number, and account
number of the customers whose accounts have been exempted.
Under 31 CFR 103.22, when a bank has exempted a single account of a
customer into which more than one of the customer's establishments make
deposits, the bank may include the name, address, business, type of
transactions exempted, the dollar limit of the exemption, taxpayer
identification number, and account number ('' 103.22(f) information'')
of either the customer's headquarters or the principal business
establishment, or it may separately list 103.22(f) information for each
of the establishments using that account. If the bank chooses to list
only the information for the customer's headquarters or principal
establishment, it should briefly note that fact on the exemption list,
and it should ensure that the individual addresses of those
establishments not on the list are readily available upon request. If a
bank has granted separate exemptions to several accounts, each of which
is used by a single establishment of the same customer, the bank must
include on its exemption list 103.22(f) information for each of those
establishments. Previous Treasury correspondence or interpretations
contrary to this policy are hereby rescinded.
Does a financial institution have a duty to file a CTR on currency
transactions where the financial institution never physically receives
the cash because it uses an armored car service to collect, transport
and process its customer's cash receipts?
X State Bank (the ''Bank'') and Acme Armored Car Service (''Acme'')
have entered into a contract which provides for Acme to collect,
transport and process revenues received from Bank customers:
Each day, Acme picks up cash, checks, and deposit tickets from Little
Z, a non-exempt customer of the Bank. Recently, receipts of cash from
Little Z have exceeded $10,000. Acme delivers the checks and deposit
tickets to the Bank where they are processed and Little Z's account is
credited. All cash collected, however, is taken by Acme to its central
office where it is counted and processed. The cash is then delivered by
Acme to the Federal Reserve Bank for deposit into the Bank's account.
Must the Bank file a CTR to report a receipt of cash in excess of
$10,000 by Acme from Little Z?
Yes. Since Acme is receiving cash in excess of $10,000 on behalf of
the Bank, the Bank must file a CTR in order to report these
transactions.
Section 103.22(a)(1) requires ''(e)ach financial institution * * *
(to) file a report of each deposit, withdrawal, exchange of currency or
other payment or transfer, by, through or to such financial institution
which involves a transaction in currency of more than $10,000.'' Section
103.11 (a) and (g) defines ''Bank'' and ''Financial Institution'' to
include agents of those banks and financial institutions.
Under the facts presented, Acme is acting as an agent of the Bank.
This is because Acme and the Bank have a contractual relationship
whereby the Bank has authorized Acme to pick up, transport and process
Little Z's receipts on behalf of the Bank. The Federal Reserve Bank's
acceptance of deposits from Acme into the Bank's account at the Fed, is
additional evidence of the agency relationship between the Bank and
Acme.
Therefore, when Acme receives currency in excess of $10,000 from
Little Z, the Bank must report that transaction on Form 4789. Likewise,
if Acme receives currency from Little Z in multiple transactions,
103.22(a)(1) requires the Bank to aggregate these transactions and file
a single CTR for the total amount of currency received by Acme, if the
Bank has knowledge of these multiple transactions. Knowledge by the
Bank's agent, i.e., Acme, that the currency was received in multiple
transactions, is attributable to the Bank. The Bank must assure that
Acme, as its agent, obtains all the information and identification
necessary to complete the CTR.
Financial institutions must file a CTR for the currency received by
an armored car service from the financial institution's customer when
the armored car service physically receives the cash from the customer,
transports it and processes the receipts, even though the currency may
never physically be received by the financial institution. This is
because the armored car service is acting as an agent of the financial
institution.
Under 103.22 of the BSA regulations, may a bank unilaterally grant
one exemption or establish a single dollar exemption limit for a group
of existing accounts of the same customer? If not, may a bank obtain
additional authority from the IRS to grant a single exemption for a
group of exemptible accounts belonging to the same customer?
ABC Inc. (''ABC''), with TIN 12-3456789, owns five fast food
restaurants. Each restaurant has its own account at the X State Bank
and each restaurant routinely deposits less than $10,000 into its
individual account. However, when the deposits into these five accounts
are aggregated they regularly and frequently exceed $10,000.
Accordingly, the bank prepares and files one CTR for ABC Inc., on each
business day that ABC's aggregated currency transactions exceed $10,000.
X State Bank wants to know whether it can unilaterally exempt these
five accounts having the same TIN, and, if not, whether it can obtain
additional authority from the IRS to grant a single exemption to the
group of five accounts belonging to ABC.
Under 103.22(b)(2) (i) and (ii) of the Bank Secrecy Act (''BSA'')
regulations, 31 CFR part 103, only an individual account of a customer
may be unilaterally exempted from the currency transaction reporting
provisions. The bank may not unilaterally grant one exemption or
establish a single dollar exemption limit for multiple accounts of the
same customer. This is because 103.22(b)(2)(i) and 103.22(b)(2)(ii)
of the BSA regulations only permit a bank to unilaterally exempt
''(d)eposits or withdrawals of currency from an existing account by an
established depositor who is a United States resident and operates a
retail type of business in the United States.'' 31 CFR 103.22(b)(2) (i)
and (ii).
Section 103.22(e) of the BSA regulations provides, however, that
''(a) bank may apply to the * * * (IRS) for additional authority to
grant exemptions to the reporting requirements not otherwise permitted
under paragraph (b) of this section * * *'' 31 CFR 103.22(e).
Therefore, under this authority, and at the request of a bank, the IRS
may, in its discretion, grant the requesting bank additional authority
to exempt a group of accounts when the following conditions are met:
(1) Each of the accounts in the group is owned by the same person and
has the same taxpayer identification number.
(2) The deposits or withdrawals into each account are made by a
customer that operates a business that may be either unilaterally or
specially exemptible and each account meets the other exemption criteria
(except for the dollar amount).
(3) Currency transactions for each account individually do not exceed
$10,000 on a regular and frequent basis.
(4) Aggregated currency transactions for all accounts included in the
group regularly and frequently exceed $10,000.
If a bank determines that an exemption would be appropriate in a
situation involving a group of accounts belonging to a single customer,
it must apply to the IRS for authority to grant one special exemption
covering the accounts in question. As with all requests for special
exemptions, any request for additional authority to grant a special
exemption must be made in writing and accompanied by a statement of the
circumstances that warrant special exemption treatment and a copy of the
statement signed by the customer as required by 103.22(d). 31 CFR
103.22(d).
Additional authority to grant a special exemption for a group of
accounts must be obtained from the IRS regardless of whether the
businesses may be unilaterally exempted under 103.22(b)(2), because the
exemption, if granted, would apply to a group of existing accounts as
opposed to an individual existing account. 31 CFR 103.22(b)(2).
Also, if any one of a given customer's accounts has regular and
frequent currency transactions which exceed $10,000, that account may
not be included in the group exemption. This is because the bank may,
as provided by 103.22(b)(2), either unilaterally exempt that account or
obtain authority from the IRS to grant a special exemption for that
account if it meets the other criteria for exemption. Thus, only
accounts of exemptible businesses which do not have regular and frequent
(e.g., daily, weekly or twice a month) currency transactions in excess
of $10,000 may be eligible for a group exemption.
The intention of this special exemption is to permit banks to exempt
the accounts of established customers, such as the ABC Inc. restaurants
described above, which are owned by the same person and have the same
TIN but which individually do not have sufficient currency deposit or
withdrawal activity that regularly and frequently exceed $10,000.
If X State Bank determines that an exemption would be appropriate for
ABC Inc., it must apply to the IRS for authority to grant one special
exemption covering ABC's five separate accounts. As with all requests
for special exemptions, ABC's request for additional authority to grant
a special exemption must be made in writing and accompanied by a
statement of the circumstances that warrant special exemption treatment
and a copy of the statement signed by the customer as required by
103.22(d). 31 CFR 103.22(d). The IRS may, in its discretion, grant
additional authority to exempt the ABC accounts if: (1) They have the
same taxpayer identification number; (2) they each are for customers
that operate a business that may be either unilaterally or specially
exemptible and each account meets the other exemption criteria (except
for dollar amount); (3) the currency transactions for each account
individually do not exceed $10,000 on a regular and frequent basis; but
(4) when aggregated the currency transactions for all the accounts
regularly and frequently do exceed $10,000.
When a customer has established bank accounts for each of several
establishments that it owns, and the bank has exempted one or more of
those accounts, how does the bank aggregate the customer's currency
transactions?
X Company (''X'') operates two fast-food restaurants and a wholesale
food business. X has opened separate bank accounts at the A National
Bank (the ''Bank'') for each of its two restaurants, account numbers 1
and 2 respectively. Each of these two accounts has been properly
exempted by the bank. Account number 1 has an exemption limit of
$25,000 for deposits, and account number 2 has an exemption limit of
$40,000 for deposits. X also has a third account, account number 3, at
the bank for use in the operation of its wholesale food business. On
occasion, cash deposits of more than $10,000 are made into this third
account. Because these cash deposits are infrequent, the bank cannot
obtain additional authority to grant this account a special exemption.
During the same business day, two $15,000 cash deposits totalling
$30,000 are made into account number 1, a separate cash deposit of
$35,000 is made into account number 2 and a deposit of $9,000 in
currency is made into account number 3 (X's account for its wholesale
food business).
The bank must now determine how to aggregate and report all of these
transactions on a Form 4789, Currency Transaction Report, (''CTR'').
Must they aggregate all of the deposits made into account numbers 1, 2
and 3 and report them on a single CTR?
Section 103.22 of the Bank Secrecy Act (''BSA''), 31 CFR part 103,
requires a financial institution to treat multiple currency transactions
''as a single transaction if the financial institution has knowledge
that they are by or on behalf of any person and result in either cash-in
or cash-out totalling more than $10,000 during any one business day.''
This means that a financial institution must file a CTR if it knows that
multiple currency transactions involving two or more accounts have been
conducted by or on behalf of the same person and, those transactions,
when aggregated, exceed $10,000. Knowledge, in this context, means
knowledge on the part of a partner, director, officer or employee of the
institution or on the part of any existing computer or manual system at
the institution that permits it to aggregate transactions.
Thus, if the bank has knowledge of multiple transactions, the bank
should aggregate the transactions in the following manner.
First, the bank should separately review and total all cash-in and
cash-out transactions within each account. Cash-in transactions should
be aggregated with other cash-in transactions and cash-out transactions
should be aggregated with cash-out transactions. Cash-in and cash-out
transactions should not be aggregated together or offset against each
other.
Second, the bank should determine whether the account has an
exemption limit. If the account has an exemption limit, the bank should
determine whether it has been exceeded. If the exemption limit has not
been exceeded, the transactions for the exempted account should not be
aggregated with other transactions.
If the total transactions during the same business day for a
particular account exceed the exemption limit, the total of all of the
transactions for that account should be aggregated with the total amount
of the transactions for other accounts that exceed their respective
exemption limits, with any accounts without exemption limits, and with
transactions conducted by or on behalf of the same person that do not
involve accounts (e.g., purchases of bank checks with cash) of which the
bank has knowledge.
In the example discussed above, all of the transactions have been
conducted ''on behalf of'' X, as X owns the restaurants and the
wholesale food business. The total $30,000 deposit for account 1
exceeds the $25,000 exemption limit for that account. The $35,000
deposit into account number 2 is less than the $40,000 exemption limit
for that account. Finally, the $9,000 deposit into account number 3,
does not by itself constitute a reportable transaction.
Therefore, under the facts above, the bank should aggregate the
entire $30,000 deposit into account number 1 (not just the amount that
exceeds the exemption limit), with the $9,000 deposit into account
number 3, for a total of $39,000. The bank should not include the
$35,000 deposit into account number 2, as that deposit does not exceed
the exemption limit for that account. Accordingly, the bank should
complete and file a single CTR for $39,000.
If the bank does not have knowledge that multiple currency
transactions have been conducted in these accounts on the same business
day (e.g., because it does not have a system that aggregates among
accounts and the deposits were made by three different individuals at
different times) the bank should file one CTR for $30,000 for account
number 1, as the activity into that account exceeds its exemption limit.
When a customer has more than one account and a bank employee has
knowledge that multiple currency transaction have been conducted in the
accounts or the bank has an existing computer or manual system that
permits it to aggregate transactions for multiple accounts, the bank
should aggregate the transactions in the following manner.
First, the bank should aggregate for each account all cash-in or
cash-out transactions conducted during one business day. If the account
has an exemption limit, the bank should determine whether the exemption
limit of that account has been exceeded. If the exemption limit has not
been exceeded, the total of the transactions for that particular account
does not have to be aggregated with other transactions. If the total
transactions during the same business day for a particular account
exceed the exemption limit, however, the total of all of the
transactions for that account should be aggregated with any total from
other accounts that exceed their respective exemption limits, with any
accounts without exemption limits, and with any reportable transactions
conducted by or on behalf of the customer not involving accounts (e.g.,
purchases of bank checks or ''cash back'' transactions) of which the
bank has knowledge. The bank should then file a CTR for the aggregated
amount.
How does a financial institution fulfill the requirement that it
furnish information about the person on whose behalf a reportable
currency transaction is being conducted?
No. 1. Linda Scott has had an account relationship with the Bank for
15 years. Ms. Scott enters the bank and deposits $15,000 in cash into
her personal checking account. The bank knows that Ms. Scott is an
artist who on occasions exhibits and sells her art work and that her art
work currently is on exhibit at the local gallery. The bank further
knows that cash deposits in the amount of $15,000 are commensurate with
Ms. Scott's art sales.
No. 2. Dick Wallace has recently opened a personal account at the
Bank. Although the bank verified his identity when the account was
opened, the bank has no additional information about Mr. Wallace. Mr.
Wallace enters the bank with $18,000 in currency and asks that it be
wire transferred to a bank in a foreign country.
No. 3. Dorothy Green, a partner at a law firm, makes a $50,000 cash
deposit into the firm's trust account. /1/ The bank knows that this is
a trust account. The $50,000 represents cash received from three
clients.
No. 4. Carlos Gomez enters a Currency Dealer and asks to buy $12,000
in traveler's checks with cash.
No. 5. Gail Julian, a trusted employee of Q-mart, a large retail
chain, enters the bank three times during one business day and makes
three large cash deposits totalling $48,000 into Q-mart's account. The
Bank knows that Ms. Julian is responsible for making the deposits on
behalf of Q-mart. Q-mart has an exemption limit of $45,000.
Under 103.28 of the Bank Secrecy Act (''BSA'') regulations, 31 CFR
part 103, a financial institution must report on a Currency Transaction
Report (''CTR'') the name and address of the individual conducting the
transaction, and the identity, account number, and the social security
or taxpayer identification number of any person on whose behalf the
transaction was conducted. See 31 U.S.C. 5313. ''A participant acting
for another person shall make the report as the agent or bailee of the
person and identify the person for whom the transaction is being made.''
Identifying information about the person on whose behalf the transaction
is conducted must always be furnished if the transaction is reportable
under the BSA, regardless of whether the transaction involves an
account.
Because the BSA requires financial institutions to file complete and
accurate CTR's, it is the financial institution's responsibility to
ascertain the real party in interest. 31 U.S.C. 5313. One way that a
financial institution can obtain information about the identity of the
person on whose behalf the transaction is being conducted is to ask the
person conducting the transaction whether he is acting for himself or on
behalf of another person. Only if as a result of strong ''know your
customer'' or other internal control policies, the financial institution
is satisfied that its records contain information concerning the true
identity of the person on whose behalf the transaction is conducted, may
the financial institution rely on those records to complete the CTR.
No. 1. Linda Scott, an artist, is a known customer of the bank. The
bank is aware that she is exhibiting her work at a local gallery and
that cash deposits in the amount of $15,000 would not be unusual or
inconsistent with Ms. Scott's business practices. Therefore, if the
bank through its stringent ''know your customer'' policies is satisfied
that the money being deposited by Ms. Scott into her personal account
is for her benefit, the bank need not ask Ms. Scott whether she is
acting on behalf of someone else.
No. 2. Because Dick Wallace is a new customer of the bank and because
the bank has no additional information about him or his business
activity, the bank should ask Mr. Wallace whether he is acting on his
own behalf or on behalf of someone else. This is particularly true
given the nature of the transaction -- a wire transfer with cash for an
individual to a foreign country.
No. 3. Dorothy Green's cash deposit of $50,000 into the law firm's
trust account clearly is being done on behalf of someone else. The bank
should ask Ms. Green to identify the clients on whose behalf the
transaction is being conducted. Because Ms. Green is acting both on
behalf of her employer and the clients, the names of the three clients
and the law firm should be included on the CTR filed by the bank.
No. 4. The currency dealer, having no account relationship with
Carlos Gomez, should ask Mr. Gomez if he is acting on behalf of someone
else.
No. 5. Gail Julian is known to the bank as a trusted employee of
Q-mart, who often deposits cash into Q-mart's account. If the bank,
through its strong ''know your customer'' policies is satisfied that Ms.
Julian makes these deposits on behalf of Q-mart, the bank need not ask
her if she is acting on behalf of someone other than Q-mart.
/1/ This type of account is sometimes called a trust account,
attorney account or special account. It is an account established by an
attorney into which commingled funds of clients may be deposited. It is
not necessarily a ''trust'' in the legal sense of the term.
31 CFR 103.77 Holding
It is the responsibility of a financial institution to file complete
and accurate CTRs. This includes providing identifying information
about the person on whose behalf the transaction is conducted in Part II
of the CTR. One way that a financial institution can obtain information
about the true identity of the person on whose behalf the transaction is
being conducted is to ask the person conducting the transaction whether
he is acting for himself or on behalf of another person. Only if as a
result of strong ''know your customer'' or other internal control
policies, the financial institution is satisfied that its record contain
the necessary information concerning the true identity of the person on
whose behalf the transaction is being conducted, may the financial
institutions rely on those records in completing the CTR.
(53 FR 40064, Oct. 13, 1988, as amended at 54 FR 21214, May 17, 1989;
54 FR 30543, July 21, 1989; 55 FR 1022, Jan. 11, 1990) I52PART 123
(RESERVED)
31 CFR 103.77 Pt. 128
31 CFR 103.77 PART 128 -- REPORTING OF INTERNATIONAL CAPITAL AND FOREIGN CURRENCY TRANSACTIONS AND HOLDINGS, TRANSFERS OF CREDIT, AND EXPORT OF COIN AND CURRENCY
31 CFR 103.77 Subpart A -- Regulations
Sec.
128.2 Reports.
128.3 Use of information reported.
128.4 Penalties.
128.5 Modification or revocation.
31 CFR 103.77 Subpart B -- Description of Forms Prescribed Under This
Subpart
128.10 Copies.
128.11 International Capital Form BL-1: Reporting bank's own
liabilities and selected liabilities of broker or dealer to
''foreigners'', payable in dollars.
128.11a International Capital Form BL-2: Custody liabilities of
reporting banks, brokers and dealers to ''foreigners'', payable in
dollars.
128.11b International Capital Form BC: Reporting bank's own claims
and selected claims of broker or dealer on ''foreigners'', payable in
dollars.
128.11c International Capital Form BL-3:Intermediary's notification
of foreign borrowing denominated in U.S. dollars.
128.12 International Capital Form BQ-1: Part 1 -- Reporting bank's
own claims and selected claims of broker or dealer on ''foreigners'';
Part 2 -- Domestic customers' claims on ''foreigners'' held by reporting
bank, broker or dealer, payable in dollars.
128.12a International Capital Form BQ-2: Part 1 -- Liabilities to,
and claims on, ''foreigners'' of reporting bank, broker or dealer; Part
2 -- Domestic customers' claims on ''foreigners'' held by reporting
bank, broker or dealer, payable in foreign currencies.
128.14 International Capital Form BL-1(SA): Reporting bank's own
liabilities and selected liabilities of broker or dealer to
''foreigners'', payable in dollars, in countries not listed separately
on Form BL-1.
128.14a International Capital Form BL-2(SA): Custody liabilities of
reporting banks, brokers and dealers to ''foreigners'', payable in
dollars in countries not listed separately on Form BL-2.
128.14b International Capital Form BC(SA): Reporting bank's own
claims and selected claims of broker or dealer on ''foreigners'',
payable in dollars, in countries not listed separately on Form BC.
128.15 International Capital Form CM: Dollar deposit and certificate
of deposit claims on banks abroad.
128.16 International Capital Form CQ-1: Financial liabilities to,
and claims on, unaffiliated ''foreigners.''
128.16a International Capital Form CQ-2: Commercial liabilities to,
and claims on, unaffiliated ''foreigners.''
128.17 International Capital Form S: Purchases and sales of
''long-term'' securities by ''foreigners.''
128.18 Supplement to Foreign Exchange Form S-1: U.S. Government
bonds and notes held for ''foreigners.''
128.19 -- 128.20 (Reserved)
128.21 Use of prescribed report forms for portions of data required
to be reported thereon.
128.22 Special survey report forms.
128.23 Alternative methods of reporting.
31 CFR 103.77 Subpart C -- Description of Forms Prescribed Under This
Subpart
128.30 Copies.
128.31 Foreign Currency Form FC-1: Weekly foreign currency report of
banks in the United States.
128.33 Foreign Currency Form FC-2: Weekly consolidated foreign
currency report on foreign branches and subsidiaries of United States
banks.
128.35 Foreign Currency Form FC-3: Monthly report of assets,
liabilities, and positions in specified foreign currencies of firms in
the United States.
128.36 Foreign Currency Form FC-4: Quarterly consolidated report of
assets, liabilities, and positions in specified currencies of foreign
branches and subsidiaries of firms in the United States.
128.37 Special reports.
Appendix -- Determinations Made by National Advisory Council Pursuant
to Section 2 (a) and (b) of E.O. 10033
Authority: Sec. 5, 40 Stat. 415, as amended, sec. 8, 59 Stat.
515; 50 U.S.C. App. 5, 22 U.S.C. 286f, E.O. 6560, Jan. 15, 1934, E.O.
10033, 14 FR 561, 3 CFR, 1949-1953 Comp., p. 226, unless otherwise
noted.
Editorial Note: For a document adopting certain forms prescribed by
the provisions of part 128, see 39 FR 37362, Oct. 21, 1974.
31 CFR 103.77 Subpart A -- Regulations
Authority: Sec. 8(a), Pub. L. 79-171, 59 Stat. 515 (22 U.S.C.
286f; Pub. L. 93-110, 87 Stat. 352 (31 U.S.C. 5315), Pub. L. 94-472, 90
Stat. 2059 (22 U.S.C. 3103).
Source: 48 FR 3728, Jan. 27, 1983, unless otherwise noted.
31 CFR 128.2 Reports.
(a) In order to effectuate the purposes of the International
Investment Survey Act of 1976 (90 Stat. 2059, 22 U.S.C. 3101 et seq.),
and in order that information requested by the International Monetary
Fund under the articles of agreement of the Fund may be obtained in
accordance with section 8(a) of the Bretton Woods Agreements Act (sec.
8(a) 59 Stat. 515; 22 U.S.C. 286f and Executive Order 10033, 14 FR 561;
3 CFR, 1949 Supp.), every person subject to the jurisdiction of the
United States engaging (1) in any transaction in foreign exchange; (2)
in any transfer of credit between any person within the United States
and any person outside of the United States; or (3) in the export or
withdrawal from the United States of any currency or coin which is legal
tender in the United States, shall furnish information relative thereto
to such extent and in such manner and at such intervals as is required
by report forms and instructions prescribed in Subpart B of this part.
(b) In order to provide additional data on the nature and source of
flows of mobile capital, including transactions by large United States
business enterprises and their foreign affiliates, as required by Title
II of Pub. L. 93-110 (87 Stat. 352, 31 U.S.C. 5315), every United
States person engaging (1) in any transaction in foreign exchange; (2)
in any transfer of credit between any person within the United States
and any person outside the United States; or (3) in the export or
withdrawal from the United States of any currency or coin which is legal
tender in the United States, shall furnish information relative thereto
to such extent and in such manner and at such intervals as is required
by report forms and instructions prescribed in Subpart C of this part.
Information shall also be furnished by every United States person or
persons with regard to any foreign person controlled by such United
States person or persons as provided in Subpart C of this part.
(c) All persons required to report, other than banks and banking
institutions, shall furnish the reports required under Subparts B and C
of this part to the Federal Reserve Bank of New York. Each bank or
banking institution shall furnish the required reports to the Federal
Reserve Bank of the District in which such bank or banking institution
has its principal place of business in the United States. In the event
that any person required to report has no principal place of business
within a Federal Reserve district, the information shall be furnished
directly to the Office of the Assistant Secretary (International
Affairs), Department of the Treasury, Washington, DC 20220 or to such
agency as the Department of the Treasury may designate.
(Pub. L. 79-171, 59 Stat. 515 (22 U.S.C. 286f); (Title II, Pub. L.
93-110, 87 Stat. 352 (31 U.S.C. 5315); Pub. L. 94-472, 90 Stat. 2059
(22 U.S.C. 3103))
31 CFR 128.3 Use of information reported.
The information reported on the forms required under Subparts B and C
will not be disclosed publicly by the Department of the Treasury or by
any other Federal agency or Federal Reserve District Bank having access
to the information as provided herein. Data reported on these forms may
be published or released in the aggregate in a manner which will not
reveal the amounts reported by any individual reporting bank or
nonbanking firm. The Department may furnish to other Federal agencies
data reported on these forms to the extent permitted by applicable law.
In addition, the Department may furnish other Federal agencies data
reported on the forms required under Subpart B to the extent permitted
by the International Investment Survey Act of 1976, 22 U.S.C. 3101, et.
seq. and may furnish to the Federal Reserve District Banks data reported
on the forms required under Subpart C.
31 CFR 128.4 Penalties.
(a) Whoever willfully fails to submit a report required under Subpart
B may be criminally prosecuted and upon conviction fined not more than
$10,000 or, if an individual, may be imprisoned for not more than one
year, or both, Any officer, director, employee or agent of any
corporation who knowingly participates in such violation may be punished
by a like fine, imprisonment, or both.
(b) Whoever fails to submit a report required under Subpart C of this
part may be assessed a civil penalty not exceeding $10,000.
(Pub. L. 93-110, 87 Stat. 352 (31 U.S.C. 5321), Pub. L. 94-472, 90
Stat. 2063 (22 U.S.C. 3105))
31 CFR 128.5 Modification or revocation.
The regulations in this part may be modified or revoked at any time.
31 CFR 128.5 Subpart B -- Description of Forms Prescribed Under This
Subpart1005
Authority: Sec. 8, Pub. L. 79-171, 59 Stat. 515, (22 U.S.C.
286f); sec. 4, Pub. L. 94-472, 90 Stat. 2059, (22 U.S.C. 3103); E.O.
10033, 14 FR 561, 3 CFR, 1949-1953, Comp: E.O. 11961, January 9, 1977,
42 FR 4321, as amended.
0051 The specific reporting requirements contained in this subpart
have been approved by the Office of Management and Budget in accordance
with the Federal Reports Act of 1942, and for other purposes.
31 CFR 128.10 Copies.
Copies of the forms described in this subpart with instructions may
be obtained from any Federal Reserve bank or from the Office of the
Assistant Secretary (International Affairs), Treasury Department,
Washington, DC 20220.
(48 FR 3729, Jan. 27, 1983)
31 CFR 128.11 International Capital Form BL-1: Reporting bank's own
liabilities and selected liabilities of broker or dealer to
''foreigners'', payable in dollars.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report monthly to a Federal Reserve bank
their own liabilities to ''foreigners'', payable in dollars, as of the
last day of business of the month.
(45 FR 83213, Dec. 18, 1980)
31 CFR 128.11a International Capital Form BL-2: Custody liabilities of
reporting banks, brokers and dealers to ''foreigners'', payable in
dollars.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report monthly to a Federal Reserve bank
assets held on behalf of ''foreigners'' which represent claims payable
in dollars on institutions or individuals in the United States, as of
the last day of business of the month.
(42 FR 63096, Dec. 14, 1977)
31 CFR 128.11b International Capital Form BC: Reporting bank's own
claims and selected claims of broker or dealer on ''foreigners'',
payable in dollars.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report monthly to a Federal Reserve bank
their own claims on ''foreigners',' payable in dollars, as of the last
day of business of each month.
(45 FR 83213, Dec. 18, 1980)
31 CFR 128.11c International Capital Form BL-3: Intermediary's
notification of foreign borrowing denominated in U.S. dollars.
On this form any intermediary in the United States which knows that
it is being used as the U.S. address of ''foreigners'' in connection
with the servicing of their U.S. dollar loans to nonbank borrowers in
the United States is required to notify its nonbanking customer in the
United States and the Federal Reserve Bank of New York of that
nonbanking customer's obligation to report borrowings from foreigners on
Treasury International Capital (TIC) Form CQ-1 if the intermediary does
not exercise its option to report the outstanding borrowings on TIC Form
BL-2.
(51 FR 9790, Mar. 21, 1986)
31 CFR 128.12 International Capital Form BQ-1: Part 1 -- Reporting
bank's own claims and selected claims of broker or dealer on
''foreigners''; Part 2 -- Domestic customers' claims on ''foreigners''
held by reporting bank, broker or dealer, payable in dollars.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report quarterly, as of the last business
day of each March, June, September and December, to a Federal Reserve
bank their own claims on ''foreigners'', payable in dollars, and assets
held for the account of domestic customers which represent claims on
''foreigners'', payable in dollars.
(45 FR 83213, Dec. 18, 1980)
31 CFR 128.12a International Capital Form BQ-2: Part 1 -- Liabilities
to, and claims on, ''foreigners'' of reporting bank, broker or dealer;
Part 2 -- Domestic customers' claims on ''foreigners'' held by reporting
bank, broker or dealer, payable in foreign currencies.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report quarterly as of the last business
day of each March, June, September and December to a Federal Reserve
bank their own liabilities to, and claims on, ''foreigners'', payable in
foreign currencies, and assets held for the account of domestic
customers which represent claims on ''foreigners'', payable in foreign
currencies.
(45 FR 83214, Dec. 18, 1980)
31 CFR 128.14 International Capital Form BL-1(SA): Reporting bank's
own liabilities and selected liabilities of broker or dealer to
''foreigners'', payable in dollars, in countries not listed separately
on Form BL-1.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report twice a year, as of June 30 and
December 31, to a Federal Reserve bank their own liabilities to
''foreigners'', payable in dollars, in countries not listed separately
on Form BL-1.
(45 FR 83214, Dec. 18, 1980)
31 CFR 128.14a International Capital Form BL-2(SA): Custody
liabilities of reporting banks, brokers and dealers to ''foreigners'',
payable in dollars, in countries not listed separately on Form BL-2.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report twice a year, as of June 30 and
December 31 to a Federal Reserve bank assets held on behalf of
''foreigners'' in countries not listed separately on Form BL-2 which
represent claims payable in dollars on institutions or individuals in
the United States.
(42 FR 63097, Dec. 14, 1977)
31 CFR 128.14b International Capital Form BC(SA): Reporting bank's own
claims and selected claims of broker or dealer on ''foreigners'',
payable in dollars, in countries not listed separately on Form BC.
On this form banks, banking institutions, brokers and dealers in the
United States are required to report twice a year, as of June 30 and
December 31, to a Federal Reserve bank their own claims on
''foreigners'' payable in dollars in countries not listed separately on
Form BC.
(45 FR 83214, Dec. 18, 1980)
31 CFR 128.15 International Capital Form CM: Dollar deposit and
certificate of deposit claims on banks abroad.
On this form exporters, importers, industrial and commercial concerns
and other nonbanking persons in the United States are required to report
monthly, as of the last business day of the month, to the Federal
Reserve Bank of New York their U.S. dollar deposit and certificate of
deposit claims on banks located abroad held in their name or held for
their account in banks abroad by U.S. or foreign custodians.
(43 FR 50175, Oct. 27, 1978)
31 CFR 128.16 International Capital Form CQ-1: Financial liabilities
to, and claims on, unaffiliated ''foreigners.''
On this form exporters, importers, industrial and commercial concerns
and other nonbanking persons in the United States are required to report
quarterly as of the last business day of each March, June, September and
December, to the Federal Reserve Bank of New York their financial
liabilities to, and claims on, unaffiliated ''foreigners'' acquired or
held, either in the United States or abroad, by reporters for their own
account or for the account of others.
(43 FR 50175, Oct. 27, 1978)
31 CFR 128.16a International Capital Form CQ-2: Commercial liabilities
to, and claims on, unaffiliated ''foreigners.''
On this form exporters, importers, industrial and commercial concerns
and other nonbanking persons in the United States are required to report
quarterly as of the last business day of each March, June, September and
December, to the Federal Reserve Bank of New York their commercial
liabilities to, and claims on, unaffiliated ''foreigners'' acquired or
held either in the United States or abroad, by reporters for their own
account or for the account of others.
(43 FR 50175, Oct. 27, 1978)
31 CFR 128.17 International Capital Form S: Purchases and sales of
''long-term'' securities by ''foreigners.''
On this form banks and banking institutions, brokers and dealers in
the United States are required to report monthly to a Federal Reserve
bank transactions in ''long-term'' and certain other securities executed
in the United States for account of ''foreigners'' and by ''foreign
official institutions'' and transactions in ''long-term'' securities
executed abroad for their own account and for the account of their
domestic customers.
(42 FR 4122, Jan. 24, 1977)
31 CFR 128.18 Supplement to Foreign Exchange Form S-1: U.S.
Government bonds and notes held for ''foreigners.''
On this form bankers and banking institutions, brokers and dealers in
the United States are required to report to a Federal Reserve bank, as
requested by the Treasury Department, their holdings for the account of
''foreigns'' of United States Government bonds and notes.
(28 FR 4256, Apr. 30, 1963)
128.19 -- 128.20 (Reserved)
31 CFR 128.21 Use of prescribed report forms for portions of data
required to be reported thereon.
The report forms prescribed in 128.11 -- 128.20 are also prescribed
for use, as needed, for the collection at intervals other than the ones
stated of a portion of the data required on each form in the same or
greater detail.
(28 FR 4256, Apr. 30, 1963)
31 CFR 128.22 Special survey report forms.
On report forms other than those described in 128.11 to 128.20
reports are required from time to time to provide detailed information
on the content of aggregate data reported on these forms and also to
provide qualitative information necessary for adequate analysis of the
data reported.
(28 FR 4256, Apr. 30, 1963)
31 CFR 128.23 Alternative methods of reporting.
In lieu of reports on the forms described in this subpart, the
required data may be reported on computer printouts in the same format,
signed by a responsible office of the reporting institution; or on
punch cards, magnetic tape, or other media that can be processed by data
processing equipment, accompanied by a printed copy of the data reported
which must be signed by a responsible officer of the reporting
institution. The proposed method and format of reporting must be
acceptable to the Federal Reserve Bank of the district in which the
report is filed, and must be approved in writing by that bank.
(42 FR 63097, Dec. 14, 1977)
31 CFR 128.23 Subpart C -- Description of Forms Prescribed Under This
Subpart
Authority: Title II, Pub. L. 93-110, 87 Stat. 352 (31 U.S.C.
5315).
31 CFR 128.30 Copies.
Copies of the forms described in this subpart with instructions may
be obtained from any Federal Reserve bank or from the Office of the
Assistant Secretary (International Affairs), Department of the Treasury,
Washington, DC 20220.
(48 FR 3729, Jan. 27, 1983)
31 CFR 128.31 Foreign Currency Form FC-1: Weekly foreign currency
report of banks in the United States.
On this form, banks and banking institutions in the United States are
required to report weekly to a Federal Reserve Bank their assets,
liabilities, and positions in the foreign currencies specified on the
form, as of the close of business on Wednesday.
(40 FR 46102, Oct. 6, 1975)
31 CFR 128.33 Foreign Currency Form FC-2: Weekly consolidated foreign
currency report on foreign branches and subsidiaries of United States
banks.
On this form, United States banks and banking institutions are
required to report weekly to a Federal Reserve Bank the consolidated
assets, liabilities, and positions of their foreign branches and
majority-owned foreign subsidiaries in the currencies specified on the
form as of the close of business on Wednesday.
(40 FR 46102, Oct. 6, 1975)
31 CFR 128.35 Foreign Currency Form FC-3: Monthly report of assets,
liabilities, and positions in specified foreign currencies of firms in
the United States.
On this form nonbanking business concerns and nonprofit institutions
in the United States are required to report monthly to the Federal
Reserve Bank of New York their assets, liabilities, and positions in the
foreign currencies specified on the form, as of the last day of business
of the month.
(41 FR 43720, Oct. 4, 1976)
31 CFR 128.36 Foreign Currency Form FC-4: Quarterly consolidated
report of assets, liabilities, and positions in specified currencies of
foreign branches and subsidiaries of firms in the United States.
On this report form, nonbanking firms and nonprofit institutions in
the United States are required to report quarterly to the Federal
Reserve Bank of New York the consolidated assets, liabilities, and
positions of their foreign branches and majority-owned foreign
partnerships and subsidiaries in the currencies specified on the form as
of the last day of business of the calendar quarter.
(40 FR 8020, Feb. 24, 1975)
31 CFR 128.37 Special reports.
At times when prompt or expanded information on current conditions in
the foreign exchange market is needed by the Department of the Treasury,
special reports may be required at more frequent intervals or at
different intervals than those specified on the forms, covering more
detailed information than that required by the forms, and covering
information related to that required by the forms. Special reports may
be required to be submitted by telegraph or other rapid means of
communication.
(39 FR 36963, Oct. 16, 1974)
31 CFR 128.37 Pt. 128, App.
31 CFR 128.37 Appendix -- Determinations Made by National Advisory
Council Pursuant to Section 2 (a) and (b) of E.O. 10033
I. Determination of the National Advisory Council pursuant to EO
10033.
In an action dated September 7, 1965, the National Advisory Council
on International Monetary and Financial Problems made the following
determination pursuant to section 2(a) of E.O. 10033 of February 8,
1949.
Action 65 (E.O.)-49. The National Advisory Council, having consulted
with the Director of the Bureau of the Budget, determines that current
information with respect to international capital movements, derived
from data on U.S. liabilities to and claims on foreigners and
transactions in securities with foreigners, and current information with
respect to U.S. gold holdings, foreign-currency holdings, and dollar
liabilities to foreigners, are essential in order that the United States
may comply with official requests of the International Monetary Fund for
information with respect to the U.S. balance of payments and monetary
reserves.
Action No. 320, March 17, 1949, is superseded by this determination
and is hereby revoked.
II. Designation of the Treasury Department by the Director of the
Bureau of the Budget pursuant to section 2(b) of E.O. 10033.
On December 1, 1965, the Treasury Department was designated, pursuant
to section 2(b) of E.O. 10033 of February 8, 1949, to collect
information for the International Monetary Fund under the National
Advisory Council determination of September 7, 1965. The letter
containing the designation reads as follows:
December 1, 1965.
Hon. Henry H. Fowler,
Secretary of the Treasury,
Washington, DC 20220.
Dear Mr. Secretary: On September 7, 1965, the National Advisory
Council, after consultation with this Bureau in accordance with section
2(a) of Executive Order 10033, made the following determination (Action
65 (E.O.)-49):
''The National Advisory Council, having consulted with the Director
of the Bureau of the Budget, determines that current information with
respect to international capital movements, derived from data on U.S.
liabilities to and claims on foreigners and transactions in securities
with foreigners, and current information with respect to U.S. gold
holdings, foreign-currency holdings, and dollar liabilities to
foreigners, are essential in order that the United States may comply
with official requests of the International Monetary Fund for
information with respect to the U.S. balance of payments and monetary
reserves.''
It is hereby determined, pursuant to section 2(b) of Executive Order
10033, that the Treasury Department shall collect information pertaining
to capital movements between the United States and foreign countries and
pertaining to the monetary reserves of the United States, except
information pertaining to direct-investment transactions, U.S.
Government foreign lending operations, and claims and liabilities of
U.S. Government agencies (other than public debt obligations), which is
collected by the Department of Commerce.
This letter supersedes the earlier determination as to the
responsibilities of the Treasury Department in this area, dated April
21, 1949, as amended May 4, 1950.
Sincerely yours,
Raymond T. Bowman,
Assistant Director for
Statistical Standards.
(31 FR 8179, June 10, 1966)
31 CFR 128.37 PART 129 -- PORTFOLIO INVESTMENT SURVEY REGULATIONS
31 CFR 128.37 Subpart A -- Basic Requirements
Sec.
129.1 Purpose.
129.2 General definitions.
129.3 Recordkeeping requirements.
129.4 Reporting requirements.
129.5 Response required.
129.6 Confidentiality.
129.7 Penalties.
129.8 Miscellaneous.
31 CFR 128.37 Subpart B -- Rules and Regulations for Survey of Foreign
Portfolio Investment in U.S. Securities
129.9 Basic requirements.
129.10 Form TD F 90-19.1 -- Report for U.S. Issuers of Securities
(Form FPI-1).
129.11 Form TD F 90-19.2 -- Report for U.S. Holders of Record (Form
FPI-2).
Authority: Pub. L. 94-472, 90 Stat. 2059 (22 U.S.C. 3101 et seq.),
as amended; E.O. 11961, 42 FR 4321, as amended.
Source: 49 FR 14054, Apr. 9, 1984, unless otherwise noted.
31 CFR 128.37 Subpart A -- Basic Requirements
31 CFR 129.1 Purpose.
The purpose of this part is to set forth the rules and regulations
necessary to implement the data collection programs and analyses with
respect to portfolio investment provided for by the International
lnvestment and Trade in Services Survey Act (22 U.S.C. 3101 et seq., as
amended (formerly the International Investment Survey Act of 1976) (the
''Act'')). The overall purpose of the Act is to provide comprehensive
and reliable information concerning international investment, including
portfolio investment, while minimizing the reporting burden on
respondents.
(54 FR 38228, Sept. 15, 1989)
31 CFR 129.2 General definitions.
(a) United States, when used in a geographic sense, means the several
States, the District of Columbia, the Commonwealth of Puerto Rico, and
all territories and possessions of the United States.
(b) Foreign, when used in a geographic sense, means that which is
situated outside the United States or which belongs to or is
characteristic of a country other than the United States.
(c) Person means any individual, branch, partnership, associated
group, association, estate, trust, corporation, or other organization
(whether or not organized under the laws of any State), and any
government (including a foreign government, the United States
Government, a State or local government, and any agency, corporation,
financial institution, or other entity or instrumentality thereof,
including a government-sponsored agency).
(d) United States person means any person resident in the United
States or subject to the jurisdiction of the United States.
(e) Foreign person means any person resident outside the United
States or subject to the jurisdiction of a country other than the United
States.
(f) Foreign parent, for purposes of this Survey, means any foreign
person who owns or controls, directly or indirectly, 10 percent or more
of the voting securities of an incorporated United States business
enterprise, or an equivalent interest in an unincorporated United States
business enterprise.
(g) Securities, for the purposes of this Survey, means equity and
debt instruments, including derivative instruments, as defined in the
Form and/or accompanying instructions. Securities include both
registered and bearer issues that are publicly traded or privately
placed in the United States and/or in foreign markets, that can be
denominated in U.S. dollars or a foreign currency.
(h) United States issuer means any United States person who issues,
through public or private distribution, any security.
(i) United States holder of record means any United States person who
is carried on stock transfer records or other ownership records as
having title to any security of a United States issuer which is held on
behalf of another person. United States holders of record include such
persons as nominees, custodians, agents, trustees, other fiduciaries,
banks, brokers, or other intermediaries, who hold title to investments
on behalf of another person. The term also extends to any United States
person acting as a custodian for bearer securities, even though such
person is not carried on ownership records as holding title to such
securities.
(j) Reporter means the United States person required to file a
report, or for which the report is required to be filed, in this Survey.
(k) Foreign official institutions means central governments of
foreign countries and their possessions, including recognized central
banks of issue, including the following:
(1) The treasuries, including ministries of finance, or corresponding
departments of national governments; central banks, including all
departments thereof; stabilization funds, including official exchange
stabilization funds, exchange control offices, or other governmental
exchange authorities; and fiscal agents of the national governments
which have as an important part of their functions, activities similar
to those of a treasury, central bank, or stabilization fund (except that
branches or agencies of foreign official banking institutions which are
located in the United States shall not be considered foreign official
institutions for purposes of these instructions).
(2) Diplomatic and consular establishments and other departments and
agencies of national governments, such as military departments,
purchasing commissions and state trading organizations except that the
term ''foreign official institution'' does not include the following:
(i) Nationalized or other government-owned banks or corporations
(nationalized or other government-owned banks should be regarded as
''foreign banks'' and nationalized or other government-owned
corporations should be regarded as ''other business firms'' unless such
banks or corporations fall within one of the categories set forth in
paragraph (k)(1) or (k)(2) of this section); and
(ii) Personal accounts of foreign diplomatic and other official
representatives of foreign countries.
(3) Any international or regional organization, or subordinate or
affiliated agency thereof, created by treaty or convention between
sovereign states.
(l) Treasury means U.S. Department of the Treasury.
(49 FR 14054, Apr. 9, 1984, as amended at 54 FR 38228, Sept. 15,
1989)
31 CFR 129.3 Recordkeeping requirements.
Persons subject to the jurisdiction of the United States shall
maintain all information required by the Act (22 U.S.C. 3104(b)(1)) for
three years from the date of submission of any reports or other
information required pursuant to the Act, or for such shorter period as
may be specified in the reporting form and/or accompanying instructions.
(54 FR 38228, Sept. 15, 1989)
31 CFR 129.4 Reporting requirements.
Persons subject to the jurisdiction of the United States shall
furnish under oath any report containing information which is determined
to be necessary to carry out the surveys and studies provided for by the
Act. Such reports may be required from U.S. persons in which foreign
persons hold portfolio investment and U.S. holders of record which
hold, on behalf of foreign persons, portfolio investment in U.S.
persons, as provided for in 129.10 and 129.11.
31 CFR 129.5 Response required.
Reports, as specified in subpart B of this part, are required from
all persons subject to the reporting requirements, regardless of whether
they are contacted by the Treasury. In addition, any person that the
Treasury contacts, either by sending reporting forms or by inquiring in
writing whether the person is subject to the reporting requirements of a
survey conducted pursuant to this part, must reply in writing. The
response must be made either by filing the properly completed reporting
form or else by filing a written certified claim for exemption from
filing a report. A claim for exemption must be filed within 30 days
after the date for which forms are to be prepared or 30 days after the
receipt of the forms, whichever is later.
31 CFR 129.6 Confidentiality.
Information collected pursuant to this part will be kept in
confidence.
(a) Access to this information shall be available only to officials
and employees (including consultants and contractors and their
employees) designated by the President, or the Secretary of the
Treasury, to perform functions under the Act.
(b) Subject to paragraph (d) of this section, the President, or the
Secretary of the Treasury, may authorize the exchange between agencies
or officials designated by him of this information as he deems necessary
to carry out the purposes of the Act.
(c) Nothing in this part shall be construed to require any Federal
agency to disclose information otherwise protected by law.
(d) No person can compel the submission or disclosure of reports, or
constituent parts thereof, or copies of such reports, or constituent
parts thereof, prepared pursuant to this part, without the prior written
consent of the person who maintained or who furnished the report and the
customer of the person who furnished the report where the information
supplied is identifiable as being derived from the records of the
customer. As required by the Act, any published reports issued by the
Treasury based upon the information obtained by this Survey will only
contain data aggregated in such a way that the person supplying the
information and the customer of the person supplying the information
cannot be identified.
31 CFR 129.7 Penalties.
(a) Whoever fails to furnish any information required under the Act
or by any other rule, regulation, order, or instruction promulgated
under the Act may be subject to civil penalty not exceeding $10,000 or
to injunctive relief commanding such person to comply, or both.
(b) Whoever willfully violates any rule, regulation, order, or
instruction promulgated under this Act, upon conviction, shall be fined
not more than $10,000 and, if an individual, may be imprisoned for not
more than one year, or both, and any officer, director, employee, or
agent of any corporation who knowingly participates in such violation,
upon conviction, may be punished by a like fine, imprisonment or both.
31 CFR 129.8 Miscellaneous.
(a) Time and place of filing reports. Reports shall be filed no
later than the ''Due date'' specified on the Form. Reports shall be
mailed to: Foreign Portfolio Investment Project, Office of the
Assistant Secretary (International Affairs), U.S. Department of the
Treasury, Washington DC 20220.
(b) Method of filing reports. Reporters submitting a large amount of
data on Part II of Form FPI-2 (referred to below) are required to file
this report in a machine readable format produced by data processing
equipment according to the instructions and annexes to the Form.
Reporters may request a waiver of this requirement by filing a written
certified claim for exemption. The Secretary of the Treasury will grant
the waiver of this requirement for good cause.
(c) Required information not available. All reasonable efforts
should be made to obtain information required for reporting. Every
question on the appropriate reporting form must be answered. However,
line items and columns on schedules which are not applicable to a
particular Reporter should be left entirely blank.
(d) Estimates. When actual information cannot be obtained, estimates
will be acceptable but must be labeled as such.
(e) Extension of reporting deadline. Reporters may request an
extension of time for filing the required information on the form
provided by the Treasury. A request for an extension of time will be
considered by the Treasury provided it is received at least 15 days
prior to the due date of the report.
(f) Authorized Signature for the certification of Forms FPI-1 and
FPI-2. Each form should be signed by an authorized officer of the
Reporter submitting the report.
(g) Other. Anyone desiring copies of the forms or having any
questions concerning preparation of reports should direct inquiries to
the address in paragraph (a) of this section.
31 CFR 129.8 Subpart B -- Rules and Regulations for Survey of Foreign Portfolio Investment in U.S. Securities
31 CFR 129.9 Basic requirements.
In addition to the requirements contained in subpart A herein,
specific additional rules and regulations are given below for filing the
required reporting forms.
31 CFR 129.10 Form TD F 90-19.1 -- Report for U.S. Issuers of
Securities (Form FPI-1).
(a) Who must report. The reporting obligations of United States
issuers are governed by the following classifications:
(1) Bank and nonbank issuer exemption level -- asset test. A report
is required on Form FPI-1 from every United States business enterprise
issuer (irrespective of whether it has evidence of foreign investment in
its securities) which, as of the latest available closing date of its
accounting records, has assets larger than the applicable exemption
level as defined in the Form.
(2) Selective small issuer reporters -- response required when
contacted. Except as otherwise provided in paragraph (a)(3) of this
section, a report on Form FPI-1 is required from every United States
issuer that is not a routine Reporter under paragraph (a)(1) of this
section, and that is informed by Treasury that it must report. This
requirement applies without regard to the size of the issuer's assets
determined under paragraph (a)(1) of this section.
(3) Total exemption -- asset test. A report on Form FPI-1 is not
required from any United States issuer, who, as of the latest available
closing date of its books, had total consolidated assets less than the
total exemption level as defined in the Form.
(b) Consolidated reports. Where several United States corporations
are affiliated with or under the control of a single United States
parent corporation, the parent corporation shall file a consolidated
Form FPI-1 following generally accepted U.S. accounting principles as
required for reports to shareholders. United States affiliates or
subsidiaries that are not normally consolidated in the parent
corporation's reports to shareholders must file their own Form FPI-1 if
they meet the requirements above. When a United States corporation
files a consolidated report, a list of the United States affiliates and
subsidiaries consolidated in the report, including name, address, and
employer's identification number, must be filed with Form FPI-1.
31 CFR 129.11 Form TD F 90-19.2 -- Report for U.S. Holders of Record
(Form FPI-2).
(a) United States holders of record. Except as otherwise provided in
these instructions, a report on Form FPI-2 is required from any United
States person who acts on behalf of a foreign person as a holder of
record of any security of a United States issuer (including United
States trustees who hold securities in United States trusts created by
foreign insurance companies and other foreign companies or foreign
governments). For example, a United States trust created by a foreign
company or foreign government under indentures relating to the issuance
or amortization of foreign dollar bonds or payments of interest thereon
must be reported; however, a trust created by a U.S. branch or agency
of a foreign insurance company should not be reported since the creator
and beneficiary is not a foreign person. A United States holder of
record may also be a United States issuer. In these cases two reports
are required to be filed: Form FPI-1 and Form FPI-2.
(b) Combined report. Where several nominees, trustees, or other
holders of record are affiliated with or under the common control of a
single bank, broker, or other institution, the United States parent
institution may file a combined Form FPI-2 on behalf of all such holders
of record. When a United States entity files a combined report, a list
of the covered United States holders of record specifying each holder's
name, address, and employer's identification number must be filed with
Form FPI-2.
(c) Holders of record exemption level -- asset test. A report on
Form FPI-2 is not required from any holder of record who held for all
its foreign customers combined investments in securities of United
States issuers aggregating to less than the holder of record exemption
level as defined in the Form. This exemption does not apply to holders
of record under common management or control as described in paragraph
(b) of this section, except where aggregate holdings of all holders of
record under a single parent institution total to an amount less than or
equal to the holder of record exemption level as defined in the Form.
31 CFR 129.11 PARTS 130 -- 199 (RESERVED)
31 CFR 129.11 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
Redesignation Table
List of CFR Sections Affected
Title 31 -- Money and Finance: Treasury
Material Approved for Incorporation by Reference
Material Approved for Incorporation by Reference
The Director of the Federal Register has approved under 5 U.S.C.
552(a) and 1 CFR Part 51 the incorporation by reference of the following
publications. This list contains only those incorporations by reference
effective as of the revision date of this volume. Incorporations by
reference found within a regulation are effective upon the effective
date of that regulation. For more information on incorporation by
reference, see the preliminary pages of this volume.
31 CFR 129.11 31 CFR CHAPTER I (PARTS 0 TO 199)
MONETARY OFFICES, DEPARTMENT OF THE TREASURY
31 CFR
American National Standards Institute
1430 Broadway, New York, NY 10018
ANSI A117.1 -- 80, Specifications for Making Buildings and Facilities
Accessible to, and Usable by the Physically Handicapped 51.55(k)(9)
(The following standard is available from: The Engineering Society
Library, 345 E. 47th St., New York, NY 10017 (212) 644-7611 and Document
Engineering Company, 15210 Stagg St., Van Nuys, CA 91405, (213)
782-1010, 873-5366.)
ANSI A117.1 -- 61 (R 71) Specifications for Making Buildings and
Facilities Accessible to and Usable by the Physically Handicapped
51.55(k)(9)
Chap.
31 CFR 129.11 Table of CFR Titles and Chapters
31 CFR 129.11 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
31 CFR 129.11 Title 2 -- (Reserved)
31 CFR 129.11 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
31 CFR 129.11 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
31 CFR 129.11 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Counsel (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
31 CFR 129.11 Title 6 -- (Reserved)
31 CFR 129.11 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
31 CFR 129.11 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
31 CFR 129.11 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
31 CFR 129.11 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
31 CFR 129.11 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
31 CFR 129.11 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
31 CFR 129.11 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
31 CFR 129.11 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
31 CFR 129.11 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)
31 CFR 129.11 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
31 CFR 129.11 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
31 CFR 129.11 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
31 CFR 129.11 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
31 CFR 129.11 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
31 CFR 129.11 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
31 CFR 129.11 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
31 CFR 129.11 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
31 CFR 129.11 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)
31 CFR 129.11 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
31 CFR 129.11 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
31 CFR 129.11 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
31 CFR 129.11 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
31 CFR 129.11 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)
31 CFR 129.11 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
31 CFR 129.11 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
31 CFR 129.11 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)
31 CFR 129.11 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
31 CFR 129.11 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)
31 CFR 129.11 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
31 CFR 129.11 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900 -- 999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
31 CFR 129.11 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400 -- 499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
31 CFR 129.11 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
31 CFR 129.11 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
31 CFR 129.11 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
31 CFR 129.11 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
31 CFR 129.11 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
31 CFR 129.11 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)
31 CFR 129.11 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
31 CFR 129.11 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
31 CFR 129.11 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
31 CFR 129.11 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
31 CFR 129.11 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900 -- 9999)
31 CFR 129.11 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 Federal Transit Administration, Department of Transportation
(Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
31 CFR 129.11 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
31 CFR 129.11 CFR Index and Finding Aids Subject/Agency List of
Agency Prepared Indexes Parallel Tables of Statutory Authorities and
Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
31 CFR 129.11 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bicentennial of the United States Constitution, Commission on the 45,
XX
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on the Bicentennial of the United States Constitution 45,
XX
Committee for Purchase from the Blind and Other Severely Handicapped
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment from a non-Federal source for travel expenses 41, 304
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Office of Navajo and Hopi Indian Relocation 25, IV
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment from a non-Federal source for travel expenses 41, 304
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowances 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
31 CFR 129.11 31 CFR (7-1-92 Edition)
31 CFR 129.11 Redesignation Table
31 CFR 129.11
31 CFR 129.11
31 CFR 129.11 Redesignation Table
At 54 FR 4957, Jan. 31, 1989, 601.901 -- 601.942 (subpart I),
formerly appearing in title 26, part 601, were redesignated as part 19
of title 31.
For the convenience of the user, the following table shows the
relationship of the redesignated sections.
31 CFR 129.11 31 CFR (7-1-92 Edition)
31 CFR 129.11 List of CFR Sections Affected
31 CFR 129.11 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven
separate volumes.
31 CFR 129.11 1986
31 CFR
51 FR
Page
Subtitle A
10.1 (b) revised 2878
10.4 Nomenclature change 2879
10.5 (a), (b) and (c) nomenclature change; (d) revised 2878
10.6 Revised 2878
10.7 Nomenclature change 2879
10.99 Revised 2881
16 Added; interim 28811
Chapter I
51.3 (e)(2) amended; interim 26884
51.25 (b) amended; interim 26884
51.26 (b)(2) revised; (b) introductory text republished; interim
19147
51.29 (c) added; interim 19147
51.59 (b)(2) amended; interim 26884
51.60 (c)(2) amended; interim 26884
51.101 (b) amended; interim 26884
51.210 (b)(2) and (10) revised 26885
51.211 (a) and (b) revised 26885
51.217 (a)(2) amended 26886
51.218 Heading revised; nomenclature change 26886
51.219 Amended 26886
51.221 Removed; new 51.221 redesignated from 51.223 and (c) amended
26886
51.222 Removed; new 51.222 redesignated from 51.224 and (b) revised
and (c) and (d) amended 26886
51.223 Redesignated as 51.221 and (c) amended 26886
51.224 Redesignated as 51.222 and (b) revised and (c) and (d) amended
26886
103 Authority citation revised 45109
103.22 (d), (e), and (f) redesignated as (e), (f), and (g); new (d)
added; new (e) revised; new (g) amended 45109
128.11c Added 9790
31 CFR 129.11 1987
31 CFR
52 FR
Page
Subtitle A
1 Authority citation revised 26305
1.1 -- 1.7 (Subpart A) Revised 26305
1.8 -- 1.12 (Subpart B) Revised 26319
1.20 Revised 26320
1.21 -- 1.22 Revised 26321
1.23 Revised 26322
1.24 Revised 26323
1.25 -- 1.26 Revised 26324
1.27 Revised 26326
1.28 Revised 26327
1.29 -- 1.30 Revised 26328
1.31 -- 1.32 Revised 26329
1.33 Removed 26302
1.34 -- 1.35 Revised 26329
1.36 Amended 11990
1.20 -- 1.36 (Subpart C) Appendixes A through L revised 26329
5.1 -- 5.4 (Subpart A) Heading added; authority citation revised 44
5.5 -- 5.22 (Subpart B) Added 44
Revised 39514
5.23 -- 5.29 (Subpart C) Added 50
5.30 -- 5.38 (Subpart D) Added 52
16 Added 35071
18 Added (temporary) 1452
Chapter I
51 Authority citation revised 415, 36925
51.0 Revised; interim 36925
51.1 Revised; interim 36925
51.26 (a) heading revised; new (a)(3) added 415
103 Authority citation revised 11441, 23978, 35545
Nomenclature change 11442
103.11 Revised; eff. in part 7-7-87 11441
(c) and (j)(4) corrected 12641
103.22 Revised 11442
103.24 Amended 11443
Correctly designated 12641
103.26 Revised; eff. in part 7-7-87 11443
(a)(1) and (b)(1) corrected 12641
103.27 Revised; eff. 7-7-87 11443
Corrected 12641
103.32 Amended 11444
103.33 Introductory text, (a) and (b) revised; OMB number; eff. in
part 7-7-87 11444
103.34 (a) (1) and (2) amended; (b)(1) revised; (b)(13) added; OMB
number; eff. in part 7-7-87 11444
103.35 (a) (1) and (2) amended; OMB number 11444
103.36 (a) amended; OMB number 11444
103.37 Redesignated as 103.38; new 103.37 added; eff. 7-7-87 11444
103.38 Redesignated as 103.39; new 103.38 redesignated from 103.37
11444
(c) redesignated as (d) and revised; new (c) added; OMB number
11445
103.39 Redesignated from 103.38 11444
103.43 (a), (b), and (c) redesignated as (b), (d), and (e); new (b)
revised; new (a), (c), and (f) added 35545
103.46 (b) removed; (a) redesignated as (b); new (b) introductory
text, (5) and (8) revised; (a), (c), (d), (e) and (f) added 11445
103.47 (a) and (b) redesignated as (b) and (d); new (b) revised;
(a), (c), (e), (f), (g) and (h) added 11445
(e) corrected 12641
103.53 Added 11446
103.61 -- 103.67 (Subpart E) Added 23979
103.70 -- 103-77 (Subpart F) Added 35546
31 CFR 129.11 1988
31 CFR
53 FR
Page
Subtitle A
0 Revised 52090
5.30 Amended 16703
25 Added; interim 9728
Revised 25426
Chapter I
103 Exemption withdrawn 32221
103 Appendix revised 40064
103.11 (g)(9) and (r) added 777
(p) revised 4138
Effective date corrected 5080
103.22 (a)(1) and (c) amended; (a)(3) redesignated as (a)(4); new
(a)(3) added 777
(d) and (e) amended 4138
103.23 (b) amended 4138
103.25 (a) amended; (e)(3) revised 10073
103.26 (b)(3) amended 4138
103.49 (c) (1) and (2) amended 4138
31 CFR 129.11 1989
31 CFR
54 FR
Page
Subtitle A
19 Redesignated from 26 CFR 601.901 -- 601.942 (Subpart I) and
heading revised; authority citation added; interim 4958
Technical correction 6363
19.100 -- 19.115 (Subpart A) Heading added; interim 4958
19.200 -- 19.225 (Subpart B) Heading added; interim 4958
19.300 -- 19.325 (Subpart C) Heading added; interim 4958
19.305 (c) (3) and (4) amended; (c)(5) added; interim 4958
19.320 (a) revised; interim 4958
19.400 -- 19.420 (Subpart D) Heading added; interim 4958
19.500 -- 19.510 (Subpart E) Heading added; interim 4958
19.600 -- 19.630 (Subpart F) Added; interim 4958
19 Appendixes A and B redesignated from 26 CFR 601.901 -- 601.942
(Subpart I); interim 4958
Appendix C added 4951, 4958
Chapter I
103 Authority citation revised 3027
103.11 (n) through (r) redesignated as (o) through (s); new (n)
added 3027
(a) through (s) and (l)(1) (ii) through (iv) redesignated as (b)
through (t) and (iii) through (v); new (l)(1) (iii) and (iv) amended;
new (a) and (l)(1)(ii) added 28418
Technical correction 53036
103.23 (a) and (b) amended; (c)(8) redesignated as (9); new (c)(8)
added (OMB number) 28418
103.26 Redesignated as 103.27; new 103.26 added 33679
103.27 Amended 3027
Redesignated as 103.28; new 103.27 redesignated from 103.26 33679
103.28 Redesignated from 103.27 33678
103.33 (d) added 33679
Corrected 34976
103.36 (b)(8) and (c) added 1167
103.38 (d) amended 33679
Corrected 34976
103.53 (c) amended 3027
103 Appendix added 21214
Appendix amended 30543
129 Reporting requirements and forms availability 50373
129.1 Revised 38228
129.2 (g) revised 38228
129.3 Revised 38228
31 CFR 129.11 1990
31 CFR
55 FR
Page
Subtitle A
2 Revised 1644
Authority citation revised 50321
2.2 (a) corrected 13134
2.14 (a) designation correctly removed 13134
2.26 (d) introductory text corrected 13134
2.28 (d)(1) revised 50321
2.36 Introductory text corrected 5118
19.600 -- 19.635 (Subpart F) Regulation at 54 FR 4950, 4958
confirmed; revised; eff. in part 7-24-90 21688, 21697
19 Appendix C regulation at 54 FR 4950, 4958 confirmed; revised;
eff. 7-24-90 21690, 21697
21 Added 6737, 6751
103.11 (g) through (t) redesignated as (h) through (u); new (g)
added; eff 8-13-90 20143
103.29 Added; eff 8-13-90 20143
103 Appendix amended 1022
31 CFR 129.11 1991
31 CFR
56 FR
Page
Subtitle A
1.36 Amended 12447
3 Heading and authority citation revised 42938
3.30 (Subpart C) Added 42938
17 Added 40788
Chapter I
100.5 (a) introductory text amended 10170
100.7 (d) amended 10170
100.9 Amended 10170
100.17 Amended 10170
31 CFR 129.11 1992
31 CFR
57 FR
Page
Subtitle A
12 Removed 19377
26 Added 24545
Chapter I
123 Removed 21740
31
Money and Finance: Treasury
PARTS 0 to 199
Revised as of July 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
31 CFR 129.11
31 CFR 129.11 Table of Contents
Page
Explanation v
Title 31:
Subtitle A -- Office of the Secretary of the Treasury
Subtitle B -- Regulations Relating to Money and Finance:
Chapter I -- Monetary Offices, Department of the Treasury
Finding Aids:
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
Redesignation Table
List of CFR Sections Affected
31 CFR 129.11 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on
which approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you
find the material is not available, please notify the Director of the
Federal Register, National Archives and Records Administration,
Washington DC 20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-512-1557). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
July 1, 1992.
31 CFR 129.11 THIS TITLE
Title 31 -- Money and Finance: Treasury is composed of two volumes.
The parts in these volumes are arranged in the following order: parts 0
to 199, and part 200 to end. The contents of these volumes represent
all of the current regulations codified under this title of the CFR as
of July 1, 1992.
A redesignation table for subtitle A -- Office of the Secretary of
the Treasury appears in the Finding Aids section of the first volume.
For this volume, Donald J. Zero II was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
31 CFR 0.0 31 CFR Ch. II (7-1-92 Edition)
31 CFR 0.0 Fiscal Service, Treasury
31 CFR 0.0 Title 31 -- Money and Finance: Treasury
31 CFR 0.0 (This book contains part 200 to end)
Part
SUBTITLE B -- Regulations Relating to Money and Finance (Continued)
chapter ii -- Fiscal Service, Department of the Treasury 202
chapter iv -- Secret Service, Department of the Treasury 401
chapter v -- Office of Foreign Assets Control, Department of the
Treasury 500
chapter vi -- Bureau of Engraving and Printing, Department of the
Treasury 601
chapter vii -- Federal Law Enforcement Training Center, Department of
the Treasury 700
chapter viii -- Office of International Investment, Department of the
Treasury 800
Editorial Note: Other regulations issued by Department of the
Treasury appear in title 12, chapter I; title 19, chapter I; title 26,
chapter I; title 27, chapter I; title 48, chapter 10.
31 CFR 0.0 Subtitle B -- Regulations Relating
31 CFR 0.0 to Money and Finance
31 CFR 0.0 (Continued)
31 CFR 0.0 31 CFR Ch. II (7-1-92 Edition)
31 CFR 0.0 Fiscal Service, Treasury
31 CFR 0.0 CHAPTER II -- FISCAL SERVICE,
31 CFR 0.0 DEPARTMENT OF THE TREASURY
31 CFR 0.0 SUBCHAPTER A -- FINANCIAL MANAGEMENT SERVICE
Part
Page
202 Depositaries and financial agents of the Government
203 Treasury tax and loan depositaries
204 Responsibilities and liabilities under Letter of Credit --
Treasury Financial Communications System (LOC-TFCS)
205 Withdrawal of cash from the Treasury for advances under Federal
grant and other programs
206 Management of Federal Agency Receipts and Operation of the Cash
Management Improvements Fund
209 Payment to financial institutions for credit to accounts of
employees and beneficiaries
210 Federal payments through financial institutions by the Automated
Clearing House method
211 Delivery of checks and warrants to addresses outside the United
States, its territories and possessions
214 Depositaries for Federal taxes
215 Withholding of District of Columbia, State, city and county
income or employment taxes by Federal agencies
223 Surety companies doing business with the United States
224 Federal process agents of surety companies
225 Acceptance of bonds, notes, or other obligations issued or
guaranteed by the United States as security in lieu of surety or
sureties on penal bonds
226 Recognition of insurance covering Treasury tax and loan
depositaries
235 Issuance of settlement checks for forged checks drawn on
designated depositaries
240 Indorsement and payment of checks drawn on the United States
Treasury
245 Claims on account of Treasury checks
248 Issue of substitutes of lost, stolen, destroyed, mutilated and
defaced checks of the United States drawn on accounts maintained in
depositary banks in foreign countries or United States territories or
possessions
250 Payment on account of awards of the Foreign Claims Settlement
Commission of the United States
251 Payment of unclaimed interest on certain awards of the Mixed
Claims Commission, United States and Germany
253 Payments under the Act of Congress approved August 30, 1962, on
unpaid balances of awards of Philippine War Damage Commission
254 Payments on account of awards and appraisals in favor of
nationals of the United States on claims against the Government of
Mexico
256 Payments under judgments and private relief acts
257 Payment on account of deposits in the Postal Savings System
270 Availability of records
281 Foreign exchange operations
290 Loans to public or private agencies under Refugee Relief Act of
1953
31 CFR 0.0
31 CFR 0.0 SUBCHAPTER B -- BUREAU OF THE PUBLIC DEBT
306 General regulations governing U.S. securities
308 General regulations governing full-paid interim certificates
309 Issue and sale of Treasury bills
312 Federal savings and loan associations and Federal credit unions
as fiscal agents of the United States
315 Regulations governing U.S. Savings Bonds, Series A, B, C, D, E,
F, G, H, J, and K, and U.S. Savings Notes
316 Offering of United States Savings Bonds, Series E
317 Regulations governing agencies for issue of United States Savings
Bonds
321 Payments by banks and other financial institutions of United
States Savings Bonds and United States Savings Notes (Freedom Shares)
323 Disclosure of records
328 Restrictive endorsements of U.S. bearer securities
330 Regulations governing payment under special endorsement of United
States Savings Bonds and United States Savings Notes (Freedom Shares)
332 Offering of United States Savings Bonds, Series H
337 Supplemental regulations governing Federal Housing Administration
debentures
339 Exchange offering of United States Savings Bonds, Series H
340 Regulations governing the sale of Treasury bonds through
competitive bidding
341 Regulations governing United States Retirement Plan Bonds
342 Offering of United States Savings Notes
343 Offering of United States Mortgage Guaranty Insurance Company Tax
and Loss Bonds
344 Regulations governing United States Treasury Certificates of
Indebtedness -- State and local government series, United States
Treasury Notes -- State and local government series, and United States
Treasury Bonds -- State and local government series
345 Regulations governing 5 Percent Treasury Certificates of
Indebtedness -- R.E.A. Series
346 Regulations governing United States Individual Retirement Bonds
347 Regulations governing 2-Percent Treasury Bonds -- R.E.A. Series
348 Regulations governing 2-Percent Depositary Bonds
349 Issue and sale of book-entry Treasury bills and of definitive
Treasury bills to eligible entities
350 Regulations governing book-entry Treasury bills
351 Offering of United States Savings Bonds, Series EE
352 Offering of United States Savings Bonds, Series HH
353 Regulations governing United States Savings Bonds, Series EE and
HH
354 Regulations governing book-entry securities of the Student Loan
Marketing Association (Sallie Mae)
355 Regulations governing fiscal agency checks
357 Regulations governing book-entry Treasury bonds, notes and bills
(Department of the Treasury Circular, Public Debt Series No. 2-86)
358 Regulations governing cubes (coupons under book-entry
safekeeping)
361 Claims pursuant to the Government Losses in Shipment Act
362 Declaration of valuables under the Government Losses in Shipment
Act
370 Regulations governing payments by the automated clearing house
method on account of United States securities
390 Collection by administrative offset
391 Waiver of interest, administrative costs, and penalties
31 CFR 0.0
31 CFR 0.0 31 CFR Ch. II (7-1-92 Edition)
31 CFR 0.0 Fiscal Service, Treasury
31 CFR 0.0 SUBCHAPTER A -- FINANCIAL MANAGEMENT SERVICE
31 CFR 0.0 PART 202 -- DEPOSITARIES AND FINANCIAL AGENTS OF THE
GOVERNMENT1007
Sec.
202.1 Scope of regulations.
202.2 Designations.
202.3 Authorization.
202.4 Contract of deposit.
202.5 Previously designated depositaries.
202.6 Collateral security.
202.7 Maintenance of balances within authorizations.
Authority: Sec. 10, Pub. L. 77-603, 56 Stat. 356 (12 U.S.C. 265);
sec. 2, Pub. L. 95-147, 91 Stat. 1227 (12 U.S.C. 266, 12 U.S.C.
1464(k), 12 U.S.C 1725(d) and 12 U.S.C. 1709(a)); and sec. 4(a), Pub.
L. 95-369, 92 Stat. 607 (12 U.S.C. 3101 and 3102).
0071The regulations, which previously appeared in this part,
governing payment of checks drawn on the United States Treasury now
appear in revised form in part 240 of this chapter (Department Circular
21 (Second Revision)).
31 CFR 202.1 Scope of regulations.
The regulations in this part govern the designation of Depositaries
and Financial Agents of the Government (hereinafter referred to as
depositaries), and their authorization to accept deposits of public
money and to perform other services as provided for in section 10, Pub.
L. 77-603, 56 Stat. 356 (12 U.S.C. 265); section 2, Pub. L. 95-147,
91 Stat. 1227 (12 U.S.C. 266, 12 U.S.C. 1464(k), 12 U.S.C. 1725(d) and
12 U.S.C. 1709(a)); and section 4(a), Pub. L. 95-369, 92 Stat. 607
(12 U.S.C. 3101 and 3102). Public money includes, without being limited
to, revenue and funds of the United States, and any funds the deposit of
which is subject to the control or regulation of the United States or
any of its officers, agents, or employees. The designation and
authorization of Treasury Tax and Loan Depositaries for the receipt of
deposits representing payments for certain United States obligations and
of internal revenue taxes are governed by the regulations in part 203 of
this chapter.
(46 FR 28152, May 26, 1981)
31 CFR 202.2 Designations.
(a) Financial institutions of the following classes are designated as
Depositaries and Financial Agents of the Government if they meet the
eligibility requirements stated in paragraph (b) of this section:
(1) Every bank insured by the Federal Deposit Insurance Corporation.
(2) Every institution insured by the Federal Savings and Loan
Insurance Corporation.
(3) Every credit union insured by the Administrator of the National
Credit Union Administration.
(4) Banks, savings banks, savings and loan, building and loan, and
homestead associations, credit unions created under the laws of any
State, the deposits or accounts of which are insured by a State or
agency thereof or by a corporation chartered by a State for the sole
purpose of insuring deposits or accounts of such financial institutions,
every United States branch of a foreign banking corporation authorized
by the State in which it is located to transact commercial banking
business, and every Federal branch of a foreign banking corporation, the
establishment of which has been approved by the Comptroller of the
Currency.
(b) In order to be eligible for designation, a financial institution
is required to possess, under its charter and the regulations issued by
its chartering authority, either general or specific authority to
perform the services outlined in 202.3(b). A financial institution is
required also to possess the authority to pledge collateral to secure
public funds.
(Sec. 10, 56 Stat. 356, as amended, 12 U.S.C. 265; sec. 2, Pub. L.
95-147 (12 U.S.C. 266, 1464(k), 1725, 1789a, and 31 U.S.C. 1038); sec.
503 of the Rehabilitation Act of 1973 (29 U.S.C. 793); and sec. 503 of
the Veterans Employment and Readjustment Act of 1972, Executive Order
11701 (38 U.S.C. 2012))
(44 FR 53066, Sept. 11, 1979, as amended at 46 FR 28152, May 26,
1981)
31 CFR 202.3 Authorization.
(a) To accept deposits covered by the appropriate Federal or State
insurer. Every depositary is authorized to accept a deposit of public
money in an official account, other than an account in the name of the
United States Treasury, in which the maximum balance does not exceed the
''Recognized Insurance Coverage''. ''Recognized Insurance Coverage''
means the insurance provided by the Federal Deposit Insurance
Corporation, the Federal Savings and Loan Insurance Corporation, the
National Credit Union Share Insurance Fund, and by insurance
organizations specifically qualified by the Secretary of the Treasury
pursuant to 31 CFR part 226.
(b) To perform other services. (1) Upon the request of a Government
agency, the Secretary of the Treasury may authorize a depositary to
perform other services specifically requested by the agency, including:
(i) The maintenance of official accounts in which balances will be in
excess of the applicable Federal or State insurance coverage;
(ii) The maintenance of accounts in the name of the United States
Treasury;
(iii) The acceptance of deposits for credit of the United States
Treasury;
(iv) The furnishing of bank drafts in exchange for collections.
(2) To obtain authorization to perform services specifically
requested by a Government agency, a depositary must:
(i) File with the Secretary of the Treasury an appropriate agreement
and resolution of its board of directors authorizing the agreement (both
on forms prescribed by and available from the Financial Management
Service), and
(ii) Pledge collateral security as provided for in 202.6.
(Sec. 10, 56 Stat. 356, as amended, 12 U.S.C. 265; sec. 2, Pub. L.
95-147 (12 U.S.C. 266, 1464(k), 1725, 1789a, and 31 U.S.C. 1038); sec.
503 of the Rehabilitation Act of 1973 (29 U.S.C. 793); and sec. 503 of
the Veterans Employment and Readjustment Act of 1972, Executive Order
11701 (38 U.S.C. 2012))
(32 FR 14215, Oct. 13, 1967, as amended at 44 FR 53066, Sept. 11,
1979; 49 FR 47001, Nov. 30, 1984)
31 CFR 202.4 Contract of deposit.
A depositary which accepts a deposit under this part enters into a
contract of deposit with the Treasury Department. The terms of this
contract include:
(a) All of the provisions of this part.
(b) Any instructions issued pursuant to this part by the Treasury or
by Federal Reserve Banks as Fiscal Agents of the United States or by any
other Government agency.
(c) The provisions prescribed in section 202 of Executive Order
11246, entitled ''Equal Employment Opportunity'' (30 FR 12319) as
amended by Executive Order 11375, entitled ''Equal Employment
Opportunity Clause''.
(d) The requirements of section 503 of the Rehabilitation Act of
1973, 29 U.S.C. 793, and the regulations issued thereunder at 41 CFR
part 60-741, which are incorporated herein by reference, requiring
Government contractors to take affirmative action to employ qualified
handicapped individuals, except that depositaries which under this part
receive gross annual earnings of less than $2,500 are exempt from
compliance with these regulations.
(e) The requirements of section 503 of the Veterans Employment and
Readjustment Act of 1972, 38 U.S.C. 2012, Executive Order 11701, and the
regulations issued thereunder at 41 CFR Subpart 1-12.11, which are
incorporated herein by reference, for the promotion of employment of
disabled and Vietnam-era veterans, except that depositaries which under
this part receive gross annual earnings of less than $10,000 are exempt
from compliance with these regulations.
(Sec. 10, 56 Stat. 356, as amended, 12 U.S.C. 265; sec. 2, Pub. L.
95-147 (12 U.S.C. 266, 1464(k), 1725, 1789a, and 31 U.S.C. 1038); sec.
503 of the Rehabilitation Act of 1973 (29 U.S.C. 793); and sec. 503 of
the Veterans Employment and Readjustment Act of 1972, Executive Order
11701 (38 U.S.C. 2012))
(44 FR 53067, Sept. 11, 1979)
31 CFR 202.5 Previously designated depositaries.
A depositary previously designated will, by the acceptance or
retention of deposits, be presumed to have assented to all the terms and
provisions of this part and to the retention of collateral security
theretofore pledged.
(32 FR 14215, Oct. 13, 1967)
31 CFR 202.6 Collateral security.
(a) Requirement. Prior to receiving deposits of public money, a
depositary authorized to perform services under 202.3(b) must pledge
collateral security in the amount required by the Secretary of the
Treasury.
(b) Acceptable security. Unless otherwise specified by the Secretary
of the Treasury, collateral security pledged under this section may be
transferable securities of any of the following classes:
(1) Obligations issued or fully insured or guaranteed by the United
States or any U.S. Government agency, and obligations of
Government-sponsored corporations which under specific statute may be
accepted as security for public funds: At face value.
(2) Obligations issued or fully guaranteed by the International Bank
for Reconstruction and Development, the Inter-American Development Bank
or the Asian Development Bank: At face value.
(c) Deposits of Securities. Unless the Secretary of the Treasury
provides otherwise, collateral security under this part must be
deposited with the Federal Reserve Bank or Branch of the district in
which the depositary is located (depositaries located in Puerto Rico and
the Virgin Islands will be considered as being located in the New York
Federal Reserve district), or with a custodian or custodians within the
United States designated by the Federal Reserve Bank, under terms and
conditions prescribed by the Federal Reserve Bank. Securities deposited
with a Federal Reserve Bank must be accompanied by a letter stating
specifically the purpose for which the securities are being deposited.
(d) Assignment. A depository that pledges securities which are not
negotiable without its endorsement or assignment may, in lieu of placing
its unqualified endorsement on each security, furnish an appropriate
resolution and irrevocable power of attorney authorizing the Federal
Reserve Bank to assign the securities. The resolution and power of
attorney shall conform to such terms and conditions as the Federal
Reserve Banks shall prescribe.
(e) Disposition of principal and interest payments of the pledged
securities after a depositary is declared insolvent -- (1) General. In
the event of the depositary's insolvency or closure, or in the event of
the appointment of a receiver, conservator, liquidator, or other similar
officer to terminate its business, the depositary agrees that all
principal and interest payments on any security pledged to protect
public monies due as of the date of the insolvency or closure, or
thereafter becoming due, shall be held separate and apart from any other
assets and shall constitute a part of the pledged security available to
satisfy any claim of the United States.
(2) Payment procedures. (i) Subject to the waiver in paragraph
(e)(2)(iii) of this section, each depositary (including, with respect to
such depositary, an assignee for the benefit of creditors, a trustee in
bankruptcy, or a receiver in equity) shall immediately remit each
payment of principal and/or interest received by it with respect to
collateral pledged pursuant to this section to the Federal Reserve Bank
of the district, as fiscal agent of the United States, and in any event
shall so remit no later than ten days after receipt of such a payment.
(ii) Subject to the waiver in paragraph (e)(2)(iii) of this section,
each obligor on a security pledged by a depositary pursuant to this
section shall make each payment of principal and/or interest with
respect to such security directly to the Federal Reserve Bank of the
district, as fiscal agent of the United States.
(iii) The requirements of paragraphs (e)(2) (i) and (ii) of this
section are hereby waived for only so long as a pledging depositary
remains solvent. The foregoing waiver is terminated without further
action immediately upon the involvency of a pledging depositary or, if
earlier, upon notice by the Treasury of such termination. For purposes
of this paragraph, a depositary is insolvent when, voluntarily or by
action of competent authority, it is closed because of present or
prospective inability to meet the demands of its depositors or
shareholders.
(Sec. 10, 56 Stat. 356, as amended, 12 U.S.C. 265; sec. 2, Pub. L.
95-147 (12 U.S.C. 266, 1464(k), 1725, 1789a, and 31 U.S.C. 1038); sec.
503 of the Rehabilitation Act of 1973 (29 U.S.C. 793); and sec. 503 of
the Veterans Employment and Readjustment Act of 1972, Executive Order
11701 (38 U.S.C. 2012))
(32 FR 14216, Oct. 13, 1967, as amended at 36 FR 6748, Apr. 8, 1971;
36 FR 17995, Sept. 8, 1971; 39 FR 30832, Aug. 26, 1974; 44 FR 53067,
Sept. 11, 1979; 46 FR 28152, May 26, 1981)
31 CFR 202.7 Maintenance of balances within authorizations.
(a) Government agencies must contact this Department before making
deposits with a financial institution insured by a State or agency
thereof or by a corporation chartered by a State for the sole purpose of
insuring deposits or accounts. The contact should be directed to the
Federal Finance, Financial Management Service, Department of the
Treasury, Washington, DC 20226.
(b) Government agencies having control or jurisdiction over public
money on deposit in accounts with depositaries are responsible for the
maintenance of balances in such accounts within the limits of the
authorizations specified by the Secretary of the Treasury.
(Sec. 10, 56 Stat. 356, as amended, 12 U.S.C. 265; sec. 2, Pub. L.
95-147 (12 U.S.C. 266, 1464(k), 1725, 1789a, and 31 U.S.C. 1038); sec.
503 of the Rehabilitation Act of 1973 (29 U.S.C. 793); and sec. 503 of
the Veterans Employment and Readjustment Act of 1972, Executive Order
11701 (38 U.S.C. 2012))
(44 FR 53067, Sept. 11, 1979, as amended at 49 FR 47001, Nov. 30,
1984)
31 CFR 202.7 PART 203 -- TREASURY TAX AND LOAN DEPOSITARIES
31 CFR 202.7 Pt. 203
31 CFR 202.7 Subpart A -- General Information
Sec.
203.1 Scope of regulations.
203.2 Definitions.
203.3 Designation of financial institutions as Treasury tax loan
depositaries.
203.4 Sources of deposit.
203.5 Directives regarding credits (deposits) to Treasury tax and
loan accounts.
203.6 Parties to the contract.
203.7 Obligations of the depositary.
31 CFR 202.7 Subpart B -- Options
203.8 General requirement.
203.9 Note Option.
203.10 Remittance Option.
203.11 Election of option by previously authorized depositaries.
203.12 Change of options.
31 CFR 202.7 Subpart C -- Interest and Compensation
203.13 Rate of interest.
203.14 Compensation for services rendered.
31 CFR 202.7 Subpart D -- Collateral Security
203.15 Collateral security requirements.
31 CFR 202.7 Subpart E -- Miscellaneous Provisions
203.16 Termination of contract.
203.17 Implementing instructions.
203.18 Effective date.
Authority: 31 U.S.C. 3122 and 31 U.S.C. 323.
Source: 43 FR 18967, May 2, 1978, unless otherwise noted.
31 CFR 202.7 Subpart A -- General Information
31 CFR 203.1 Scope of regulations.
The regulations in this part govern the designation of Treasury tax
and loan depositaries and their contract with the Treasury Department to
maintain and administer separate accounts to be known as Treasury tax
and loan accounts in which funds representing payments for certain
United States obligations and payments of Federal taxes are credited.
31 CFR 203.2 Definitions.
As used in this part:
(a) Advices of credit means those Treasury forms, which are supplied
to tax and loan depositaries to be used in supporting credits to
Treasury tax and loan accounts.
(b) Business day means any day on which the Federal Reserve Bank of
the district is open to the public.
(c) Election of Option form means a document, preprinted and supplied
by the Federal Reserve Bank of each district, on which a tax and loan
depositary indicates the option under which it will administer its
Treasury tax and loan account after the effective date of this part.
(d) Federal funds rate means the weekly Federal funds rate as
published in the Federal Reserve Bulletin in Table A-27 entitled
''Interest Rates, Money and Capital Markets''.
(e) Federal Reserve Bank of the district means the Federal Reserve
Bank which services the geographical area in which the tax and loan
depositary is located. Tax and loan depositaries located in Puerto
Rico, the Virgin Islands, and the Panama Canal Zone are included in the
Second Federal Reserve District.
(f) Federal tax deposit form means a preinscribed form supplied to a
taxpayer by the Treasury Department to accompany deposits of Federal
taxes.
(g) Federal taxes means those Federal taxes specified by the
Secretary of the Treasury or the Secretary's delegate as eligible for
payment through the procedure prescribed in this part and part 214.
(h) Note Option means that choice available to a tax and loan
depositary under which funds debited to its Treasury tax and loan
account are added by the Treasury to its investments in obligations of
the depositary. The amount of such investments will be evidenced by an
open-ended interest-bearing note maintained at the Federal Reserve Bank
of the district.
(i) Off Premises Collateral Arrangement means a collateral custody
arrangement established pursuant to 203.15(c)(2) of this part wherein a
depositary is permitted to hold in its possession for the Federal
Reserve Bank instruments enumerated at 203.15(d)(4) through and
including (d)(8) of this part as collateral security for funds invested
with the depositary as special direct investments.
(j) Recognized Insurance Coverage means the insurance provided by the
Federal Deposit Insurance Corporation, the Federal Savings and Loan
Insurance Corporation, the National Credit Union Share Insurance Fund,
and the insurance provided by insurance organizations specifically
qualified by the Secretary of the Treasury pursuant to 31 CFR part 226.
(k) Remittance Option means that choice available to a tax and loan
depositary under which funds equivalent to the amount of deposits
credited by the depositary to its Treasury tax and loan account will be
withdrawn by the Federal Reserve Bank immediately upon receipt by the
Federal Reserve Bank of the advices of credit supporting such deposits.
(l) Reporting cycle means the time period established for reporting
and computation purposes. A reporting cycle begins on the first
Thursday of each month and ends on the Wednesday preceding the first
Thursday of the following month.
(m) Reserve account means that account every member of the Federal
Reserve System maintains at the Federal Reserve Bank of its district for
reserve purposes pursuant to 12 CFR part 204.
(n) Special depositary means a depositary that had been designated
under the provisions of 31 CFR part 203 prior to the effective date of
this revision. A depositary thereafter designated under this part shall
be known as a Treasury tax and loan depositary.
(o) Special direct investment means the type of addition to a
Treasury tax and loan depositary's note account referred to in 203.9(a)
of this part, where the addition is specifically identified as a special
direct investment and is secured by instruments retained in the
possession of the depositary pursuant to the terms of 203.15(c)(2) of
this part.
(47 FR 37083, Aug. 25, 1982)
31 CFR 203.3 Designation of financial institutions as Treasury tax loan
depositaries.
(a) Previously authorized depositaries. Every special depositary
which, at the close of business on November 1, 1978, was authorized to
maintain a Treasury tax and loan account is hereby redesignated as a
Treasury tax and loan depositary. The agreements under which they were
heretofore authorized as Special Depositaries of Public Money are
continued in effect without further action, but subject to the
provisions of the current part 203.
(b) New designations -- (1) Requirements -- (i) Eligible
institutions. The following classes of financial institutions are
eligible to be designated as Treasury tax and loan depositaries:
(A) Every incorporated bank and trust company in the United States,
Puerto Rico, the Virgin Islands, every United States branch of a foreign
banking corporation authorized by the State in which it is located to
transact commercial banking business, and every Federal branch of a
foreign banking corporation, the establishment of which has been
approved by the Comptroller of the Currency.
(B) Every institution insured by the Federal Savings and Loan
Insurance Corporation.
(C) Every credit union insured by the Administrator of the National
Credit Union Administration.
(D) Savings and loan, building and loan, homestead associations, and
credit unions, created under the laws of any State, the deposits or
accounts of which are insured by a State or agency thereof, or by a
corporation chartered by a State for the sole purpose of insuring
deposits or accounts of such financial institutions.
(ii) Other requirements. In order to meet Treasury requirements for
designation, each financial institution is required to possess under its
charter and regulations issued by its chartering authority either
general or specific authority permitting the maintenance of the tax and
loan account as an account, the balance in which is payable on demand
without previous notice of intended withdrawal. Each financial
institution is required to also possess the authority to pledge
collateral to secure Treasury tax and loan funds.
(2) Application procedures. Any eligible financial institution
seeking designation as a Treasury tax and loan depositary and, thereby,
the authority to maintain a Treasury tax and loan account shall file
with the Federal Reserve Bank of the district an ''Offer to Contract and
Application'' accompanied by a resolution of its board directors
authorizing the ''Offer to Contract and Application'' (both on forms
prescribed and available on request from the Federal Reserve Bank).
(3) Designation. Each financial institution satisfying the
eligibility requirements and the application procedures will receive
from the Federal Reserve Bank of the district notification of its
specific designation as a Treasury tax and loan depositary. A financial
institution is not authorized to maintain a Treasury tax and loan
account until it has been designated as a Treasury tax and loan
depositary by the Federal Reserve Bank of the district.
(43 FR 18967, May 2, 1978, as amended at 43 FR 47506, Oct. 16, 1978;
46 FR 28153, May 26, 1981)
31 CFR 203.4 Sources of deposit.
A tax and loan depositary shall credit to its Treasury tax and loan
account payments of such Federal taxes as the Secretary of the Treasury
may from time to time by regulation authorize to be paid through
Treasury tax and loan accounts. (See also 203.9(c).)
(44 FR 20424, Apr. 5, 1979)
31 CFR 203.5 Directives regarding credits (deposits) to Treasury tax
and loan accounts.
(a) Payments for United States Savings Bonds shall be credited in
accordance with instructions prescribed by the Federal Reserve Bank of
the district.
(b) Federal tax payments shall be credited in accordance with part
214 of this chapter and any instructions issued pursuant to that part.
31 CFR 203.6 Parties to the contract.
A financial institution which is designated as a Treasury tax and
loan depositary enters into a depositary contract with the Department of
the Treasury. The parties to this contract are the Treasury, acting
through the Federal Reserve Banks as Fiscal Agents of the United States,
and each financial institution designated under 203.3. The terms of
the contract include all of the provisions of this part.
31 CFR 203.7 Obligations of the depositary.
A Treasury tax and loan depositary shall:
(a) Administer a Treasury tax and loan account in accordance with
this part and any amendments or supplements thereto, and instructions
issued pursuant thereto, including the Procedural Instructions for
Treasury Tax and Loan Depositaries;
(b) Comply with the requirements of section 202 of Executive Order
11246, entitled ''Equal Employment Opportunity'' (30 FR 12319) as
amended by Executive Order 11375, entitled ''Equal Employment
Opportunity Clause,'' which is incorporated herein by reference, and the
regulations issued thereunder at 41 CFR chapter 60, as amended. The
Secretary of the Treasury may terminate the contract with a tax and loan
depositary for failure to comply with the terms of the contract set
forth in this subsection, relating to equal employment opportunity,
after following the procedures specified by the U.S. Department of
Labor at 41 CFR part 60-30, as amended.
(c) Comply with the requirements of section 503 of the Rehabilitation
Act of 1973, 29 U.S.C. 793, and the regulations issued thereunder at 20
CFR part 741, /1/ which are incorporated herein by reference, requiring
Government contractors to take affirmative action to employ qualified
handicapped individuals, and
(d) Comply with requirements of section 503 of the Veterans
Employment and Readjustment Act of 1972, 38 U.S.C. 2012, Executive Order
11701, and the regulations issued thereunder at 41 CFR Subpart 1-12.11,
which are incorporated herein by reference, for the promotion of
employment of disabled and Vietnam era veterans.
/1/ Editorial Note: 20 CFR part 741 was redesignated as 41 CFR part
60-741 at 41 FR 16147, Apr. 16, 1976.
31 CFR 203.7 Subpart B -- Options