Code of Federal Regulations 49 Parts 1-99

49
Parts 1 to 99
Revised as of October 1, 2007
Transportation
Containing a codification of documents

of general applicability and future effect
As of October 1, 2007
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register

ebenthall on PRODPC61 with CFR
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Table of Contents
Page
Explanation ................................................................................................ v
Title 49:
Subtitle A—Office of the Secretary of Transportation ................... 3
Finding Aids:
Material Approved for Incorporation by Reference ............................ 699
Table of CFR Titles and Chapters ....................................................... 701
Alphabetical List of Agencies Appearing in the CFR ......................... 719
List of CFR Sections Affected ............................................................. 729

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 49 CFR 1.1
refers to title 49, part 1,
section 1.
iv
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 agen-
cies 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 sub-
divided 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 deter-
mine the latest version of any given rule.
To determine whether a Code volume has been amended since its revision date
(in this case, October 1, 2007), 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 Reg-
ister 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 usu-
ally 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 amend-
ments 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, 2001, consult either the List
of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published
in 11 separate volumes. For the period beginning January 1, 2001, 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 regu-
lations in the Federal Register by referring to materials already published else-
where. 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 mate-
rial 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 pub-
lished 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 202-741-6010.
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). A list of CFR titles, chapters, and parts and an alphabetical
list of agencies publishing in the CFR are also included in this volume.
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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 Reg-
ister.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
vi
REPUBLICATION OF MATERIAL
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in the Code of Federal Regulations.
INQUIRIES
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contact the issuing agency. The issuing agency’s name appears at the top of
odd-numbered pages.
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to the Director, Office of the Federal Register, National Archives and Records
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RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
October 1, 2007.
vii
THIS TITLE
Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-

umes are arranged in the following order: Parts 1–99, parts 100–185, parts 186–
199, parts 200–299, parts 300–399, parts 400–599, parts 600–999, parts 1000–1199, part
1200 to End. The first volume (parts 1–99) contains current regulations issued
under subtitle A—Office of the Secretary of Transportation; the second volume
(parts 100–185) and the third volume (parts 186–199) contain the current regula-
tions issued under chapter I—Pipeline and Hazardous Materials Safety Adminis-
tration (DOT); the fourth volume (parts 200–299) contains the current regulations
issued under chapter II—Federal Railroad Administration (DOT); the fifth volume
(parts 300–399) contains the current regulations issued under chapter III—Federal
Motor Carrier Safety Administration (DOT); the sixth volume (parts 400–599) con-
tains the current regulations issued under chapter IV—Coast Guard (DHS), chap-
ter V—National Highway Traffic Safety Administration (DOT); the seventh vol-
ume (parts 600–999) contains the current regulations issued under chapter VI—
Federal Transit Administration (DOT), chapter VII—National Railroad Passenger
Corporation (AMTRAK), and chapter VIII—National Transportation Safety
Board; the eighth volume (parts 1000–1199) contains the current regulations issued
under chapter X—Surface Transportation Board and the ninth volume (part 1200
to End) contains the current regulations issued under chapter X—Surface Trans-
portation Board, chapter XI—Research and Innovative Technology Administra-
tion, and chapter XII—Transportation Security Administration, Department of
Transportation. The contents of these volumes represent all current regulations
codified under this title of the CFR as of October 1, 2007.
In the volume containing parts 100–185, see § 172.101 for the Hazardous Materials
Table. The Federal Motor Vehicle Safety Standards appear in part 571.
Redesignation tables for chapter III—Federal Motor Carrier Safety Administra-

tion, Department of Transportation and chapter XII—Transportation Security
Administration, Department of Transportation appear in the Finding Aids sec-
tion of the fifth and ninth volumes.
For this volume, Moja N. Mwaniki was Chief Editor. The Code of Federal Regu-
lations publication program is under the direction of Michael L. White, assisted
by Ann Worley.
ix
Title 49—Transportation
(This book contains parts 1 to 99)
Part
SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPOR-

TATION ................................................................................ 1
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Subtitle A—Office of the Secretary of
Transportation
Part Page
1 Organization and delegation of powers and duties .. 5
3 Official seal ............................................................. 49
5 Rulemaking procedures ........................................... 49
6 Implementation of Equal Access to Justice Act in
agency proceedings .............................................. 53
7 Public availability of information .......................... 59
8 Classified information: Classification/declassifica-
tion/access ............................................................ 73
9 Testimony of employees of the Department and
production of records in legal proceedings ........... 81
10 Maintenance of and access to records pertaining to
individuals ............................................................ 86
11 Protection of human subjects ................................. 99
15 Protection of sensitive security information .......... 110
17 Intergovernmental review of Department of Trans-
portation programs and activities ....................... 117
18 Uniform administrative requirements for grants
and cooperative agreements to State and local
governments ......................................................... 120
19 Uniform administrative requirements for grants
and agreements with institutions of higher edu-
cation, hospitals, and other non-profit organiza-
tions ..................................................................... 149
20 New restrictions on lobbying .................................. 177
21 Nondiscrimination in federally-assisted programs
of the Department of Transportation—Effec-
tuation of title VI of the Civil Rights Act of 1964 189
23 Participation of disadvantaged business enterprise
in airport concessions .......................................... 200
24 Uniform relocation assistance and real property
acquisition for Federal and federally-assisted
programs .............................................................. 220
25 Nondiscrimination on the basis of sex in education
programs or activities receiving Federal finan-
cial assistance ...................................................... 267

3
49 CFR Subtitle A (10–1–07 Edition)
Part Page
26 Participation by disadvantaged business enter-
prises in Department of Transportation financial
assistance programs ............................................. 283
27 Nondiscrimination on the basis of disability in pro-
grams or activities receiving Federal financial
assistance ............................................................. 343
28 Enforcement of nondiscrimination on the basis of
handicap in programs or activities conducted by
the Department of Transportation ....................... 355
29 Governmentwide debarment and suspension (non-
procurement) ........................................................ 363
30 Denial of public works contracts to suppliers of
goods and services of countries that deny pro-
curement market access to U.S. contractors ....... 386
31 Program fraud civil remedies .................................. 391
32 Governmentwide requirements for drug-free work-
place (financial assistance) .................................. 406
37 Transportation services for individuals with dis-
abilities (ADA) ..................................................... 412
38 Americans With Disabilities Act (ADA) accessi-
bility specifications for transportation vehicles .. 501
40 Procedures for transportation workplace drug test-
ing programs ........................................................ 539
41 Seismic safety ......................................................... 649
71 Standard time zone boundaries ............................... 651
79 Medals of honor ....................................................... 657
80 Credit assistance for surface transportation
projects ................................................................ 658
89 Implementation of the Federal Claims Collection
Act ....................................................................... 663
91 International air transportation fair competitive
practices ............................................................... 670
92 Recovering debts to the United States by salary
offset .................................................................... 672
93 Aircraft allocation .................................................. 681
95 Advisory committees .............................................. 682
98 Enforcement of restrictions on post-employment
activities .............................................................. 685
99 Employee responsibilities and conduct ................... 687
APPENDIX TO SUBTITLE A—UNITED STATES RAILWAY ASSO-
CIATION—EMPLOYEE RESPONSIBILITIES AND CONDUCT .......... 690
PART 1—ORGANIZATION AND DEL- 1.59a Redelegations by the Assistant Sec-
retary for Administration.
EGATION OF POWERS AND DU- 1.60 Delegations to the Inspector General.
TIES 1.61 Delegations to Assistant Secretary for
Governmental Affairs.
Subpart A—General 1.62 Delegations to the Director of Small
and Disadvantaged Business Utilization.
Sec. 1.63 Delegations to Assistant to the Sec-
1.1 Purpose. retary and Director of Public Affairs.
1.2 Definitions. 1.64 Delegations to the Director, Transpor-
1.3 Organization of the Department. tation Administrative Service Center.
1.4 General responsibilities. 1.65 Authority to classify information.
1.66 Delegations to Maritime Adminis-
Subpart B—Office of the Secretary trator.
1.67 Delegations to Maritime Subsidy
1.21 Purpose. Board.
1.22 Structure. 1.68 Delegations to the Under Secretary of
1.23 Spheres of primary responsibility. Transportation for Security for the
1.24 Authority.
Transportation Security Administration.
1.25 Relationships.
1.69 Delegations to the Director of Intel-
1.26 Secretarial succession.
ligence, Security, and Emergency Re-
sponse.
Subpart C—Delegations 1.70 Delegations to the Director of the De-
1.41 Purpose. partmental Office of Civil Rights.
1.42 Exercise of authority. 1.71 [Reserved]
1.43 General limitations and reservations. 1.72 Delegations to the Office of the Chief
1.44 Reservation of authority. Information Officer.
1.45 Delegations to all Administrators. 1.73 Delegation to the Administrator of the
1.46 Delegations to the Administrator of the Federal Motor Carrier Safety Adminis-
Research and Innovative Technology Ad- tration.
ministration. 1.74 Delegations to the Under Secretary for
1.47 Delegations to Federal Aviation Ad- Transportation Policy.
ministrator. APPENDIX A TO PART 1—DELEGATIONS AND
1.48 Delegations to Federal Highway Ad- REDELEGATIONS BY SECRETARIAL OFFI-
ministrator. CERS
1.49 Delegations to Federal Railroad Ad-
ministrator. AUTHORITY: 49 U.S.C. 322; 46 U.S.C. 2104(a);
1.50 Delegation to National Highway Traffic 28 U.S.C. 2672; 31 U.S.C. 3711(a)(2); Pub. L.
Safety Administrator. 101–552, 104 Stat. 2736; Pub. L. 106–159, 113
1.51 Delegations to Federal Transit Admin- Stat. 1748; Pub. L. 107–71, 115 Stat. 597; Pub.
istrator. L. 107–295, 116 Stat. 2064; Pub. L. 108–136, 117
1.52 Delegations to Saint Lawrence Seaway Stat. 1392; Pub. L. 101–115, 103 Stat. 691; Pub.
Development Corporation Administrator. L. 108–293, 118 Stat. 1028; Pub. L. 109–364, 120
1.53 Delegations to the Administrator of the Stat. 2083.
Pipeline and Hazardous Materials Safety SOURCE: Amdt. 1–113, 40 FR 43901, Sept. 24,
Administration. 1975, unless otherwise noted.
1.54 Delegations to all Secretarial Officers.
1.55 Delegations to Deputy Secretary.
1.56 Delegations to the Assistant Secretary Subpart A—General
for Transportation Policy.
1.56a Delegations to the Assistant Sec- § 1.1 Purpose.
retary for Aviation and International Af- This part describes the organization
fairs. of the Department of Transportation
1.56b Delegations to the Designated Senior
and provides for the performance of du-
Career Official, Office of the Assistant
Secretary for Aviation and International ties imposed upon, and the exercise of
Affairs. powers vested, in the Secretary of
1.57 Delegations to General Counsel. Transportation by law.
1.57a Delegations to Deputy General Coun-
sel. § 1.2 Definitions.
1.57b Delegations to the Assistant General As used in this part, Administrator in-
Counsel for Environmental, Civil Rights,
and General Law.
cludes:
1.58 Delegations to Assistant Secretary for (a) The Federal Aviation Adminis-
Budget and Programs. trator.
1.59 Delegations to Assistant Secretary for (b) The Federal Highway Adminis-
Administration. trator.
§ 1.3 49 CFR Subtitle A (10–1–07 Edition)
(c) The Federal Railroad Adminis- (10) [Reserved]

trator. (11) The Federal Motor Carrier Safety
(d) The National Highway Traffic Administration, headed by the Admin-
Safety Administrator. istrator.
(e) The Federal Transit Adminis-
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
trator. amended by Amdt. 1–157, 45 FR 83403, Dec. 18,
(f) The Administrator of the St. Law- 1980; Amdt. 1–164, 46 FR 47458, Sept. 28, 1981;
rence Seaway Development Corpora- Amdt. 1–270, 60 FR 30196, June 8, 1995; 65 FR
tion. 221, Jan. 4, 2000; 66 FR 67118, Dec. 28, 2001; 68
(g) The Pipeline and Hazardous Mate- FR 34549, June 10, 2003; 70 FR 8300, Feb. 18,
rials Safety Administrator. 2005]
(h) The Maritime Administrator.
§ 1.4 General responsibilities.
(i) The Research and Innovative
Technology Administrator. (a) Office of the Secretary. Provides
(j) The Federal Motor Carrier Safety for:
Administrator. (1) Leadership in formulating and
executing well-balanced national and
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
international transportation objec-
amended by Amdt. 1–157, 45 FR 83403, Dec. 18,
1980; Amdt. 1–164, 46 FR 47458, Sept. 28, 1981; tives, policies, and programs;
Amdt. 1–270, 60 FR 30196, June 8, 1995; 65 FR (2) Stimulating and promoting re-
221, Jan. 4, 2000; 66 FR 67118, Dec. 28, 2001; 67 search and development in all modes
FR 629, Jan. 4, 2002; 68 FR 34549, June 10, 2003; and types of transportation, with spe-
70 FR 8300, Feb. 18, 2005] cial emphasis on transportation safety;
(3) Coordinating the various trans-
§ 1.3 Organization of the Department. portation programs of the Federal Gov-
(a) The Secretary of Transportation ernment;
is the head of the Department. (4) Encouraging maximum private
(b) The Department is comprised of development of transportation serv-
the Office of the Secretary and the fol- ices;
lowing operating elements, the heads (5) Responsive, timely, and effective
of which report directly to the Sec- liaison with Congress, and public and
retary: private organizations on transpor-
(1) The Federal Aviation Administra- tation matters;
tion, headed by the Administrator. (6) Innovative approaches to urban
(2) The Federal Highway Administra- transportation and environmental en-
tion, headed by the Administrator. hancement programs; and
(3) The Federal Railroad Administra- (7) Effective management of the De-
tion, headed by the Administrator. partment as a whole.
(4) The National Highway Traffic (b) The Federal Aviation Administra-
Safety Administration, headed by the tion. Is responsible for:
Administrator. (1) Promulgating and enforcing regu-
(5) The Federal Transit Administra- lations on all safety matters relating
tion, headed by the Administrator. to the manufacture, operation, and
(6) The St. Lawrence Seaway Devel- maintenance of aircraft;
opment Corporation, headed by the Ad- (2) Registering aircraft and recording
ministrator. rights in aircraft;
(7) The Pipeline and Hazardous Mate- (3) Developing, modifying, testing,
rials Safety Administration, headed by and evaluating systems, procedures, fa-
the Administrator. cilities, and devices needed for the safe
(8) The Maritime Administration, and efficient navigation and traffic
headed by the Administrator and in- control of aircraft;
cluding within it the Maritime Subsidy (4) Locating, constructing or install-
Board composed of the Maritime Ad- ing, maintaining, and operating Fed-
ministrator, the Deputy Maritime Ad- eral aids to air navigation, wherever
ministrator, and the Chief Counsel of necessary;
the Maritime Administration. (5) Developing air traffic regulations,
(9) The Research and Innovative and administering air traffic control of
Technology Administration, headed by civil and military air operations within
the Administrator. U.S. airspace;
Office of the Secretary of Transportation § 1.4
(6) Providing grants-in-aid for devel- which are delegated to the Federal
oping public airports; Highway Administration.
(7) Promoting and encouraging civil (2) Establishing, prescribing, and en-
aviation abroad through technical forcing National standards for improv-
aviation assistance to other governing safety in the operation and per-
ments; and formance of motor vehicles and equip-
(8) Promulgating and enforcing regu- ment.
lations on all safety matters relating (3) Informing the public of the com-
to commercial launch activities. parative characteristics and oper-
(c) The Federal Highway Administra- ational cost of passenger motor vehi-
tion. Is responsible for: cles and requiring display of compara-
(1) Planning, in cooperation with the tive insurance costs by automobile
States, the national highway system; dealers.
(2) Providing for improving, in co- (4) Administering a program of man-
operation with the States, roads on the datory automotive fuel economy stand-
Federal-aid primary, secondary, and ards for passenger and non-passenger
interstate highway systems and urban automobiles for model year 1978 and be-
extensions thereof; yond.
(3) Highway beautification and scenic (5) Establishing safeguards for the
enhancement of the Federal-aid high- protection of purchasers with respect
way systems; to the sale of motor vehicles having al-
(4) Surveying and constructing forest tered or reset odometers and enforcing
highway system roads, defense high- the prohibition against tampering with
ways and access roads, and parkways odometers.
and roads in national parks and other (f) The Federal Transit Administration.
federally administered areas; Is responsible for:
(5) Developing and administering uni- (1) Exercising the authority vested in
form State standards for highway safe- the Secretary for developing com-
ty programs with respect to identifica- prehensive and coordinated public
tion and surveillance of accident loca- transportation systems that serve the
tions; highway design, construction, public.
and maintenance, including highway (2) Administering Federal transpor-
related aspects of pedestrian safety; tation assistance programs and func-
and traffic control devices. tions; and
(d) The Federal Railroad Administra- (3) Assuring appropriate liaison and
tion. Is responsible for: coordination with other Federal agen-
(1) Operating and managing the Alas- cies, state and local governmental au-
ka Railroad; thorities, with respect to the foregoing.
(2) Conducting research and develop- (g) The St. Lawrence Seaway Develop-
ment activity in support of improved ment Corporation. Is responsible for the
rail transportation; development, operation, and mainte-
(3) Regulating safety functions per- nance of that part of the St. Lawrence
taining to railroads, express compa- Seaway within the territorial limits of
nies, and water carriers operating in the United States.
connection with railroads under a com- (h) The Pipeline and Hazardous Mate-
mon control, management, or arrange- rials Safety Administration. Is respon-
ment for continuous carriage or ship- sible for:
ment; and (1) Administering a national program
(4) Investigating and issuing reports of safety in natural gas and hazardous
concerning collisions, derailments, and liquid pipeline transportation includ-
other railroad accidents resulting in ing identifying pipeline safety con-
serious injury to persons or to the cerns, developing uniform safety stand-
property of a railroad. ards, and promulgating and enforcing
(e) The National Highway Traffic Safe- safety regulations.
ty Administration. Is responsible for: (2) Administering a national program
(1) Promulgating uniform standards of safety, including security, in multi-
for developing State highway safety modal hazardous materials transpor-
programs, except for those standards tation including identifying hazardous
the development and administration of materials safety concerns, developing
uniform safety standards, and promul- terborne commerce of the United

gating and enforcing safety and secu- States; and
rity regulations. (17) Issuing rules and regulations
(i) The Maritime Administration. Is re- with respect to the foregoing functions.
sponsible for: (j) The Maritime Subsidy Board (within
(1) Fostering the development and the Maritime Administration). Is respon-
maintenance of an American merchant sible for:
marine sufficient to meet the needs of (1) Making, amending, and termi-
the national security and of the domes- nating subsidy contracts, which shall
tic and foreign commerce of the United be deemed to include, in the case of
States; construction-differential subsidy: (i)
(2) Awarding and administering con- The contract for the construction, re-
struction-differential subsidy contracts construction, or reconditioning of a
and operating-differential subsidy con- vessel, and (ii) the contract for the sale
tracts to aid the American merchant of the vessel to the subsidy applicant
marine, and trade-in allowances for or the contract to pay a construction-
new ship construction; differential subsidy and the cost of the
(3) Entering into and administering national defense features, and, in the
agreements for capital contruction case of operating-differential subsidy,
funds (excepting fishing vessels) and the contract with the subsidy applicant
construction reserve funds; for the payment of the subsidy.
(4) Providing insurance on construc- (2) Conducting hearings and making
tion loans and ship mortgages or guar- determinations antecedent to making,
antees on ship financing obtained from amending, and terminating subsidy
private sources for ship construction contracts, under the provisions of ti-
and reconstruction (excepting fishing tles V, VI, and VII, and sections 301 (ex-
vessels); cept investigations, hearings, and de-
(5) Providing assistance to the ship- terminations, including changes in de-
ping industry to generate increased terminations, with respect to min-
trade and cargo shipments on U.S. flag imum manning scales, minimum wage
ships; scales, and minimum working condi-
(6) Promoting development of ports tions), 708, 805(a), and 805(f) of the Mer-
and intermodal transportation sys- chant Marine Act, 1936, as amended
tems; (the ‘‘Act’’).
(7) Promoting development of the do- (3) Approving the sale, assignment,
mestic waterborne commerce of the or transfer of any operating subsidy
United States; contract under section 608 of the Act.
(8) Overseeing the administration of (4) Performing so much of the func-
cargo preference statutes; tions with respect to adopting rules
(9) Entering into and administering and regulations, subpoenaing wit-
charters and general agency agree- nesses, administering oaths, taking
ments for operation of Government- evidence, and requiring the production
owned merchant ships; of books, papers, and documents, under
(10) Maintaining custody of, and pre- sections 204 and 214 of the Act, as they
serving, ships in the National Defense relate to the functions of the Board.
Reserve Fleet; (5) Performing as much of the func-
(11) Selling surplus Government- tions specified in section 12 of the Ship-
owned ships; ping Act, 1916, as amended, as the same
(12) Supervising design and construc- relate to the functions of the Board
tion of ships for Government account; under paragraphs (k) (1) through (4) of
(13) Furnishing war risk insurance on this section.
privately owned merchant ships; (k) The Research and Innovative Tech-
(14) Administering the foreign trans- nology Administration. Is responsible
fer program regarding ships and other for:
maritime properties; (1) Coordinating, facilitating, and re-
(15) Training merchant marine offi- viewing the Department’s research and
cers; development programs and activities,
(16) Conducting research and develop- except as limited by section 4(b)(1) of
ment to improve and promote the wa- the Norman Y. Mineta Research and
Special Programs Improvement Act (13) Serving as a focal point within

(Pub. L. 108–426, 118 Stat. 2423 (Novem- the Federal government for coordina-
ber 30, 2004)). tion of intermodal transportation re-
(2) After consultation with modal and search and development policy, in co-
OST offices, making recommendations ordination with the Under Secretary
to the Secretary on all modal and OST for Policy.
research budgets. (l) The Federal Motor Carrier Safety
(3) Serving as the focal point for De- Administration. Is responsible for:
partmental research, development, and (1) Managing program and regulatory
technology endeavors, in coordination activities, including administering
with the Under Secretary for Policy. laws and promulgating and enforcing
(4) Planning, developing, initiating regulations on safety matters relating
and managing programs in transpor- to motor carrier safety;
tation research and development. Pro- (2) Carrying out motor carrier reg-
grams undertaken by RITA shall not istration and authority to regulate
be duplicative of similar programs un- household goods transportation;
dertaken by any modal or OST office. (3) Developing strategies for improv-
Maintaining the capability to perform ing commercial motor vehicle, oper-
research, development, and analysis in ator, and carrier safety;
transportation planning and socio-eco- (4) Inspecting records and equipment
nomic effects, program management, of commercial motor carriers, and in-
and provide advice on technology in vestigating accidents and reporting
DOT policy development. Particular ef- violations of motor carrier safety regu-
forts will be made on analyzing trans- lations; and
portation systems problems and devel- (5) Carrying out research, develop-
oping innovative research products, ment, and technology transfer activi-
processes and applications to solve ties to promote safety of operation and
them, advanced transportation con- equipment of motor vehicles for the
cepts, and multimodal transportation. motor carrier transportation program.
RITA will develop and maintain vital
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975]
statistics and related transportation
information databases. EDITORIAL NOTE: For FEDERAL REGISTER ci-
(5) Providing leadership on technical, tations affecting § 1.4, see the List of CFR
navigation, communication, and sys- Sections Affected, which appears in the
tems engineering activities. Finding Aids section of the printed volume
and on GPO Access.
(6) Providing a point of contact for
the Department with the academic
community to encourage transpor- Subpart B—Office of the Secretary
tation research.
§ 1.21 Purpose.
(7) Providing university transpor-
tation research grants. This subpart establishes the basic or-
(8) Managing a Transportation Safety ganizational structure, spheres of pri-
Institute which designs and conducts mary responsibility, and lines of au-
training programs responsive to the re- thority in the Office of the Secretary.
quirements of Government and indus- It also describes the relationships be-
try as expressed by the operating ad- tween the Office of the Secretary and
ministrations of the Department. the operating administrations, and pro-
(9) Carrying out comprehensive vides for succession to the position of
transportation statistics research, Secretary in case of need.
analysis, and reporting.
(10) Providing oversight of the activi- § 1.22 Structure.
ties of the Bureau of Transportation (a) Secretary and Deputy Secretary.
Statistics. The Secretary and Deputy Secretary
(11) Providing oversight of the activi- are assisted by the following, all of
ties of the Volpe National Transpor- which report directly to the Secretary:
tation Systems Center. The Under Secretary for Policy; the
(12) Coordinating intermodal re- Executive Secretariat; the Board of
search initiatives and planning activi- Contract Appeals; the Departmental
ties. Office of Civil Rights; the Office of
Small and Disadvantaged Business Uti- spector General for Inspections and
lization; the Office of Intelligence, Se- Evaluations.
curity, and Emergency Response; the
[Amdt. 1–261, 59 FR 10061, Mar. 3, 1994, as
Office of Public Affairs; and the Office amended by Amdt.1–268, 60 FR 14226, Mar. 16,
of the Chief Information Officer. The 1995; Amdt. 1–269, 60 FR 15877, Mar. 28, 1995;
Assistant Secretaries, the General Amdt. 1–274, 60 FR 62762, Dec. 7, 1995; Amdt.
Counsel, and the Inspector General also 1–290, 62 FR 51804, Oct. 3, 1997; 68 FR 34549,
report directly to the Secretary. June 10, 2003; 70 FR 8300, Feb. 18, 2005]
(b) Office of the Assistant Secretary for
§ 1.23 Spheres of primary responsi-
Transportation Policy. This Office is bility.
composed of the Offices of Environ-
ment, Energy and Safety; and Econom- (a) Secretary and Deputy Secretary.
ics. Overall planning, direction, and con-
(c) Office of the Assistant Secretary for trol of departmental affairs including
Aviation and International Affairs. This civil rights, contract appeals, small
Office is composed of the Offices of and disadvantaged business participa-
Aviation International Economics; tion in departmental programs, trans-
portation research and technology,
International Transportation and
commercial space transportation, in-
Trade; International Aviation; and
telligence and security, and public af-
Aviation Analysis.
fairs.
(d) Office of the General Counsel. This
(b) The Under Secretary for Policy.
Office is composed of the Offices of En-
Provides leadership in the development
vironmental, Civil Rights, and General of policy for the Department, super-
Law; International Law; Litigation; vises the policy activities of Assistant
Legislation; Regulation and Enforce- Secretaries with primary responsi-
ment; and Aviation Enforcement and bility for aviation, international, and
Proceedings. other transportation policy develop-
(e) Office of the Assistant Secretary for ment and carries out other powers and
Budget and Programs. This Office is duties prescribed by the Secretary. As-
composed of the Offices of Programs sists the Secretary and Deputy Sec-
and Evaluation; and Budget. retary in carrying out a variety of ex-
(f) Office of the Assistant Secretary for ecutive and managerial policies, pro-
Governmental Affairs. This office is grams and initiatives. Serves as the
composed of the Offices of Congres- focal point within the Federal Govern-
sional Affairs and Intergovernmental ment for coordination of intermodal
Affairs. transportation policy which brings to-
(g) Office of the Assistant Secretary for gether departmental intermodal per-
Administration. This Office is composed spectives, advocates intermodal inter-
of the Offices of Personnel; Manage- ests, and provides secretarial leader-
ment Planning; Information Resource ship and visibility on issues that in-
Management; Administrative Services volve or affect more than one operating
and Property Management; Hearings; administration.
Acquisition and Grant Management; (c) General Counsel. Legal services as
Security; Financial Management; and the chief legal officer of the Depart-
Administrative Systems Development. ment, legal advisor to the Secretary
and the Office of the Secretary; final
(h) Office of the Inspector General. The
authority within the Department on
duties and responsibilities of the Office
questions of law; professional super-
of Inspector General are carried out by
vision, including coordination and re-
the Assistant Inspector General for Au-
view, over the legal work of the legal
diting; the Assistant Inspector General offices of the Department; drafting of
for Investigations; the Assistant In- legislation and review of legal aspects
spector General for Policy, Planning, of legislative matters; point of coordi-
and Resources; and the Assistant In- nation for the Office of the Secretary
and Department Regulations Council;
advice on questions of international
law; advice and assistance with respect
10
to uniform time matters; ensures uni- reprogrammings, and allotments; pro-

form departmental implementation of gram and systems evaluation and anal-
the Freedom of Information Act (5 ysis; program evaluation criteria; pro-
U.S.C. 552); responds to requests for gram resource plans; analysis and re-
records of the Office of the Secretary view of legislative proposals and one-
including the Office of the Inspector time reports and studies required by
General, under that statute; review and the Congress; budgetary and selected
final action on applications for recon- administrative matters relating to the
sideration of initial decisions not to Immediate Office of the Secretary.
disclose unclassified records of the Of- (g) Assistant Secretary for Govern-
fice of the Secretary requested under 5 mental Affairs. Coordination of legisla-
U.S.C. 552(a)(3); promotion and coordi- tive and non-legislative relationships;
nation of efficient use of Department congressional affairs; communications
legal resources; recommendation, in and coordination with Federal, State
conjunction with the Assistant Sec- and local governments, industry and
retary for Administration, of legal ca- labor, and with citizens and organiza-
reer development programs within the tions representing consumers.
Department. (h) Deputy Assistant Secretary for Trib-
(d) Assistant Secretary for Transpor- al Government Affairs. Plan, coordinate
tation Policy. Principal policy advisor and implement the Department’s poli-
to the Secretary and the Deputy Sec- cies and programs with respect to In-
retary. Public policy development, co- dian tribes and tribal organizations.
ordination, and evaluation for all as- Coordinate intra-Departmental tribal
pects of transportation, with the goal transportation programs and activi-
of making the Nation’s transportation ties. Serve as the Department’s pri-
resources function as an integrated na- mary point of contact in relationships
tional system; evaluation of private with public and private organizations
transportation sector operating and and groups related to Indian tribes and
economic issues; evaluation of public tribal organizations. Participate in any
transportation sector operating and negotiated rulemaking relating to, or
economic issues; regulatory and legis- having an impact on, projects, pro-
lative initiatives and review; energy, grams, or funding associated with the
environmental, disability, and safety tribal transportation program.
policy and program development and (i) Assistant Secretary for Administra-
review; and transportation infrastruc- tion. Organization; delegations of au-
ture assessment and review. thority; personnel ceiling control;
(e) Assistant Secretary for Aviation and management studies; personnel man-
International Affairs. Public policy as- agement; acquisition and grant man-
sessment and review; private sector agement (except for the responsibility
evaluation; international transpor- listed for the Office of Small and Dis-
tation and transport-related trade pol- advantaged Business Utilization in this
icy and issues; regulatory and legisla- section); information resource manage-
tive initiatives and review of maritime/ ment; financial management; develop-
shipbuilding policies and programs; ment and implementation of a Depart-
transport-related trade promotion; co- mental Accounting and Financial In-
ordination of land transport relations formation System (DAFIS); property
with Canada and Mexico; technical as- management information; security;
sistance and science and technology co- computer support; telecommuni-
operation; international visitors’ pro- cations; and administrative support
grams; economic regulation of the air- services for the Office of the Secretary
line industry; and essential air service and certain other components of the
program. Department.
(f) Assistant Secretary for Budget and (j) Inspector General. Conduct, super-
Programs. Preparation, review and pres- vise, and coordinate audits and inves-
entation of Department budget esti- tigations, review existing and proposed
mates; liaison with OMB and Congres- legislation and make recommendations
sional Budget and Appropriations Com- to the Secretary and Congress (Semi-
mittees; departmental financial plans, annual reports) concerning their im-
apportionments, reapportionments, pact on the economy and efficiency of
11
program administration, or the preven- Office of Civil Rights also provides pol-
tion and detection of fraud and abuse; icy guidance to the operating adminis-
recommend policies for and conduct, trations and Secretarial officers on
supervise, or coordinate other activi- these matters. Also, the Office periodi-
ties of the Department for the purpose cally reviews and evaluates the civil
of promoting economy and efficiency rights programs of the operating ad-
in program administration, or pre- ministrations to ensure that recipients
venting and detecting fraud and abuse. of DOT funds meet applicable Federal
(k) Executive Secretary. Central facili- civil rights requirements.
tative staff for the Immediate Office of (n) Office of Small and Disadvantaged
the Secretary and the Secretarial Offi- Business Utilization. Responsible for the
cers. Department’s implementation and exe-
(l) Board of Contract Appeals. Con- cution of the functions and duties
ducts trials and issues final decisions, under sections 8 and 15 of the Small
which are appealable to the United Business Act, as amended, (15 U.S.C.
States Court of Appeals for the Federal 637 and 644), and for other depart-
Circuit, on appeals from contracting mental small and disadvantaged busi-
officer decisions under contracts ness policy direction.
awarded by the Department and its (o) [Reserved]
constituent administrations in accord- (p) Office of Intelligence, Security
ance with the Contract Disputes Act of and Emergency Response. Responsible
l978, 41 U.S.C. 601 et seq.; sits as the for intelligence and security matters
Contract Adjustment Board with ple- within the Department of Transpor-
nary authority to grant extraordinary tation that affect the safety of the
contractual relief in accordance with 50 traveling public, and for emergency
U.S.C. 1431–1435 and Executive Order preparedness and response functions
10789 (3 CFR, 1954–1958 comp., p. 426), as and activities within the Department
amended; hears and decides all con- and operation of the Department’s Cri-
tractor and subcontractor debarment, sis Management Center.
suspension, or ineligibility cases pursu- (q) Office of Public Affairs. Focal point
ant to the Federal Acquisition Regula- for public information and depart-
tion, 48 CFR 9.402; judges serve as mental relations with the news media,
‘‘neutrals’’ under the Administrative the general public, and selected special
Dispute Resolution Act, 5 U.S.C. 581 et publics.
seq., in contract-related matters; and (r) Office of the Chief Information Offi-
performs such other adjudicatory func- cer. Serves as principal advisor to the
tions assigned by the Secretary as are Secretary on matters involving infor-
consistent with the duties and respon- mation resources and information sys-
sibilities of the Board as set forth in 41 tems management.
U.S.C. 601 et seq.
[Amdt. 1–261, 59 FR 10062, Mar. 3, 1994, as
(m) Departmental Office of Civil Rights. amended by Amdt. 265, 60 FR 2891, Jan. 12,
The Director of the Departmental Of- 1995; Amdt. 1–274, 60 FR 62762, Dec. 7, 1995;
fice of Civil Rights serves as the De- Amdt. 1–290, 62 FR 51804, Oct. 3, 1997; 68 FR
partment’s Equal Employment Oppor- 34549, June 10, 2003; 69 FR 44972, July 28, 2004;
tunity (EEO) Officer and Title VI Coor- 70 FR 7670, Feb. 15, 2005; 70 FR 8300, Feb. 18,
dinator. The Director also serves as 2005; 71 FR 30830, May 31, 2006]
principal advisor to the Secretary and
the Deputy Secretary on the civil § 1.24 Authority.
rights and nondiscrimination statutes, (a) The Deputy Secretary: (1) May ex-
regulations, and executive orders appli- ercise the authority of the Secretary,
cable to the Department, including ti- except where specifically limited by
tles VI and VII of the Civil Rights Act law, order, regulation, or instructions
of 1964, as amended, the Age Discrimi- of the Secretary; and (2) serves as the
nation in Employment Act of 1967, as Chief Acquisition Officer.
amended, the Age Discrimination Act (b) Acting in his or her own name and
of 1975, as amended, section 504 of the title, each Assistant Secretary, the In-
Rehabilitation Act of 1973, as amended, spector General, or the General Coun-
the Americans with Disabilities Act of sel, within his or her sphere of respon-
1990, and the Equal Pay Act of 1963. The sibility, is authorized to identify and
12
define the requirements for, and to rec- (1) Avoid unnecessary duplication of
ommend to the Secretary, new or re- effort by or in conflict with the per-
vised Departmental policies, plans, and formance of similar activities by the
proposals. Each of these officers is au- operating administrations and the
thorized to issue Departmental stand- other Assistant Secretaries pursuant
ards, criteria, systems and procedures to their Secretarial delegations of au-
that are consistent with applicable thority; and
laws, Executive Orders, Government- (2) Assure that the views of the oper-
wide regulations and policies estab- ating administrations are considered in
lished by the Secretary, and to inspect, developing Departmental policies,
review, and evaluate Departmental plans, and proposals.
program performance and effectiveness The Assistant Secretaries are also
and advise the Secretary regarding the available to assist, as appropriate, the
adequacy thereof. operating administrations in imple-
(c) Except for nondelegable statutory menting Departmental policy and pro-
duties, including those which devolve grams. As primary staff advisors to the
as a result of succession to act as Sec- Secretary, the Assistant Secretaries
retary of Transportation, each Deputy are concerned with transportation
Assistant Secretary, the Deputy In- matters of the broadest scope, includ-
spector General, and the Deputy Gen- ing modal, intermodal, and other mat-
eral Counsel is authorized to act for ters of Secretarial interest.
and perform the duties of his or her (b) Exceptions. There are exceptions
principal in the absence or disability of to the normal staff role described in
the principal and as otherwise directed paragraph (a) of this section. In se-
by the principal. lected instances, the Secretary has spe-
cifically delegated to Assistant Secre-
(d) Inspector General. The Inspector
taries authority which they may exer-
General shall report to and be under
cise on the Secretary’s behalf. For ex-
the general supervision of the Sec-
ample, the Secretary has delegated au-
retary and Deputy Secretary. In ac-
thority to the Assistant Secretary for
cordance with the statutory intent of
Transportation Policy and the Assist-
the Inspector General Act to create an ant Secretary for Aviation and Inter-
independent and objective unit, the In- national Affairs, as appropriate, to de-
spector General is authorized to make cide on most requests to intervene or
such investigations and reports relat- appear before administrative agencies,
ing to the administration of the pro- subject to the concurrence of the Gen-
grams and operations of the Depart- eral Counsel. Also, from time to time,
ment as are, in the judgment of the In- activities of an operational character
spector General, necessary and desir- may be delegated to an Assistant Sec-
able. Neither the Secretary nor the retary when the nature of the function
Deputy Secretary shall prevent or pro- or its stage of development makes it
hibit the Inspector General from initi- untimely to effect assignment to an op-
ating, carrying out, or completing any erating administration.
audit or investigation, or from issuing
any subpoena during the course of any [Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
audit or investigation. amended by Amdt. 1–157, 45 FR 83405, Dec. 18,
1980; Amdt. 1–261, 59 FR 10063, Mar. 3, 1994]
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
amended by Amdt. 1–157, 45 FR 83404, Dec. 18, § 1.26 Secretarial succession.
1980; 69 FR 60563, Oct. 12, 2004] (a) The following officials, in the
order indicated, shall act as Secretary
§ 1.25 Relationships.
of Transportation, in case of the ab-
(a) Normal staff role. Normally, the sence or disability of the Secretary,
functions of the Assistant Secretaries until the absence or disability ceases,
are staff and advisory in nature. In per- or, in case of a vacancy, until a suc-
forming their functions, the Assistant cessor is appointed:
Secretaries are responsible for con- (1) Deputy Secretary.
tinuing liaison and coordination among (2) Under Secretary of Transpor-
themselves and with the operating ad- tation for Policy.
ministrations to: (3) General Counsel.
13
(4) Assistant Secretary for Aviation notice to, prior coordination with, or
and International Affairs. prior approval by an authority other
(5) Assistant Secretary for Transpor- than that of the official proposing to
tation Policy. act.
(6) Assistant Secretary for Budget
[Amdt. 1–114, 41 FR 1288, Jan. 7, 1976, as
and Programs.
amended by Amdt. 1–157, 45 FR 83405, Dec. 18,
(7) Assistant Secretary for Govern- 1980]
mental Affairs.
(8) Assistant Secretary for Adminis- § 1.43 General limitations and reserva-
tration. tions.
(9) Federal Aviation Administrator.
(10) Federal Aviation Administration (a) All powers and duties that are not
Regional Administrator, Southwest delegated by the Secretary in this sub-
Region. part, or otherwise vested in officials
(11) Federal Aviation Administration other than the Secretary, are reserved
Regional Administrator, Great Lakes to the Secretary. Except as otherwise
Region. provided, the Secretary may exercise
(b) Without regard to the foregoing, a powers and duties delegated or as-
person directed to perform the duties signed to officials other than the Sec-
of the Secretary pursuant to 5 U.S.C. retary.
3347 shall act as Secretary of Transpor- (b) Except as provided in § 1.42 and
tation. subject to paragraph (a) of this section
and § 1.44, the Deputy Secretary, the
[Amdt. 1–157, 45 FR 83405, Dec. 18, 1980, as Assistant Secretaries, the Inspector
amended by Amdt. 1–184, 48 FR 44079, Sept.
27, 1983; Amdt. 1–261, 59 FR 10063, Mar. 3, 1994;
General, the General Counsel, and the
Amdt. 1–291, 62 FR 55357, Oct. 24, 1997; 68 FR Administrators exercise the powers and
35184, June 12, 2003] perform the duties delegated to them
under this subpart.
Subpart C—Delegations (c) Notwithstanding the provisions of
paragraph (a), the delegation of author-
§ 1.41 Purpose. ity in § 1.56b of this title to the Des-
(a) Except as provided in paragraph ignated Senior Career Official in the
(b) of this section, this subpart pro- Office of the Assistant Secretary for
vides for the exercise of the powers and Aviation and International Affairs to
performance of the duties vested in the make decisions in certain aviation
Secretary of Transportation by law. hearing cases is exclusive, and may not
(b) For delegations of authority vest- be exercised by any other Depart-
ed in the Secretary by Executive Order mental official, including the Sec-
11652 originally to classify documents retary. The Secretary reserves (and
as secret or confidential, see § 8.11 of delegates to the Assistant Secretary
this subtitle. for Aviation and International Affairs)
only the authority to make discre-
§ 1.42 Exercise of authority. tionary review of any such decision and
In exercising powers and performing to approve it or to remand it for recon-
duties delegated by this subpart or re- sideration by the Designated Senior
delegated pursuant thereto, officials of Career Official, with a full written ex-
the Department of Transportation are planation of the basis for the remand.
governed by applicable laws, Executive [Amdt. 1–157, 45 FR 83405, Dec. 18, 1980, as
orders and regulations and by policies, amended by Amdt. 1–199, 49 FR 50996, Dec. 31,
objectives, plans, standards, proce- 1984; Amdt. 1–261, 59 FR 10061, 10063, Mar. 3,
dures, and limitations as may be issued 1994]
from time to time by or on behalf of
the Secretary, or, with respect to mat- § 1.44 Reservation of authority.
ters under their jurisdictions, by or on The delegations of authority in §§ 1.45
behalf of the Deputy Secretary, an As- through 1.53 and §§ 1.66 and § 1.67 do not
sistant Secretary, the Inspector Gen- extend to the following actions, au-
eral, the General Counsel, or an Ad- thority for which is reserved to the
ministrator. This includes, wherever Secretary or the Secretary’s delegatee
specified, the requirement for advance within the Office of the Secretary:
14
(a) General transportation matters. (1) one element to another within the De-
Transportation leadership authority partment (31 U.S.C. 665).
under section 4(a) of the Department of (d) Interventions and appearances. Ex-
Transportation Act (49 U.S.C. 1653(a)). cept with respect to proceedings relat-
(2) Functions relating to transpor- ing to safety fitness of an applicant (49
tation activities, plans, and programs U.S.C. 1653(e)), the making of decisions
under section 4(g) of the Department of on requests to intervene or appear be-
Transportation Act (49 U.S.C. 1653(g)). fore courts and administrative agencies
(3) Authority to develop, prepare, co- to present the views of the Depart-
ordinate, transmit, and revise trans- ment.
portation investment standards and (e) Personnel. (1) Recommendations to
criteria under section 7 of the Depart- the Civil Service Commission of the al-
ment of Transportation Act (49 U.S.C. location of a position to GS–16, 17, or 18
1656). or an equivalent level (5 U.S.C. 5108).
(4) Authority relating to standard (2) Recommendations to the Civil
time zones and advanced (daylight) Service Commission of approval of the
time (15 U.S.C. 260 et seq.). qualifications of any candidate for a
(5) Authority related to national position at grade GS–16, 17, or 18 or an
transportation policy under section 3 equivalent level (5 U.S.C. 3324), or to an
of the Airport and Airway Develop- executive level position.
ment Act of 1970 (84 Stat. 219). (3) Recommendations to the Civil
(b) Legislation and reports. (1) Submis- Service Commission of a Lump-Sum
sion to the President, the Director of Incentive Award in Excess of $5,000 (5
the Office of Management and Budget, U.S.C. 4502).
or the Congress of proposals or rec- (4) Approval of the following actions
ommendations for legislation, Execu- relating to Schedules A, B, and C and
tive orders, proclamations or reorga- noncareer executive assignment posi-
nization plans or other Presidential actions or incumbents, except for actions
tion. under Schedules A and B limited to one
(2) Submission to Congress or the year or less at grade GS–9 or lower, or
President of any report or any pro- an equivalent level:
posed transportation policy or invest- (i) Establishment or abolition of po-
ment standards or criteria, except with sitions;
the prior written approval of the Sec- (ii) Hires;
retary. (iii) Promotions other than quality
(3) Submission of the annual state- and periodic within-grade promotions;
ment on systems of internal account- (iv) Transfer of personnel to Schedule
ing and administrative control under A, B, or C positions or non-career exec-
the Federal Managers’ Financial Integ- utive assignment positions, either per-
rity Act of 1982 (Pub. L. 97–255). manently or on detail; and
(c) Budget and finance. (1) Approval (v) Transfer of personnel from Sched-
and submission to the Office of Man- ule A, B, or C or non-career executive
agement and Budget of original or assignment positions to career Civil
amended budget estimates or requests Service positions.
for allocations of personnel ceiling (31 (5) Approval of employment of ex-
U.S.C. 22–24). perts or consultants.
(2) Approval of requests for legisla- (6) Authority relating to scientific
tion which, if enacted, would authorize and professional positions under sec-
subsequent appropriations for the De- tion 6(a) (5) of the Department of
partment (31 U.S.C. 581b). Transportation Act (49 U.S.C.
(3) Transfer of the balance of an ap- 1655(a)(5)).
propriation from one operating ele- (7) Authority to determine the max-
ment to another within the Depart- imum limit of age for appointment of
ment (31 U.S.C. 581c). air traffic controllers as provided by 5
(4) Submission to the Director of the U.S.C. 3307(b) (86 Stat. 141).
Office of Management and Budget of (8) Authority to develop, coordinate,
requests for the transfer of the balance and issue wage schedules under the
or portions of an appropriation from Federal Wage system.
15
(f) Security. (1) Suspension or removal (l) National Highway Safety Advisory
of an employee from a position in the Committee. Directing the National
Department for security reasons under Highway Safety Advisory Committee
Executive Order 10450 (3 CFR, 1949–53 to meet (23 U.S.C. 404(c)).
Comp., p. 936) or the employment in (m) Automatic data processing. Ap-
the Department of a person who was proval authority relating to automatic
previously separated for security rea- data processing equipment and services
sons from any Federal agency. as delimited by DOT 1370.2A, Procure-
(2) Authorizing the filling of a crit- ment of Automatic Data Processing
ical-sensitive position for a limited pe- Equipment and Services, of 7.22.70.
riod by a person on whom a (n) Deepwater ports. The authority to
preappointment full field investigation issue, transfer, or amend a license for
has not been completed (Executive the construction and operation of a
Order 10450). deepwater port (33 U.S.C. 1503(b)).
(3) Requesting Presidential approval (o) Deepwater ports. Repealed.
of a claim of executive privilege with
(p) Review and finality of actions by
respect to information requested by a
Maritime Subsidy Board. (1) Review of
congressional committee or Member of
any decision, report, and/or order of
Congress.
the Maritime Subsidy Board, as de-
(4) Making determinations prescribed
scribed in 46 CFR part 202, as amended.
by sections 4(a)(2)(B), 4(b)(3), 5(b), and 9
of Executive Order 10865 (3 CFR, 1959–63 (q) Approval of cash purchases of pas-
Comp., p. 398) relating to the adjudica- senger transportation. The authority
tion and final denial of access to classi- under FPMR G–72, as amended, to au-
fied information to industry personnel. thorize and approve cash purchases for
(5) Making those determinations or emergency passenger transportation
delegations prescribed by sections 2(B) services costing more than $100.
(3), 5(E) (1) and (2) of Executive Order [Amdt. 1–113, 40 FR 43901, Sept. 24, 1975]
11652 (37 FR 5209, March 10, 1972) which
are reserved to the head of the Depart- EDITORIAL NOTE: For FEDERAL REGISTER ci-
tations affecting § 1.44, see the List of CFR
ment. Sections Affected which appears in the Find-
(g) Procurement. Exercise of the ex- ing Aids section of the printed volume and
traordinary authority for defense con- on GPO Access.
tracts provided for in Public Law 85–804
(50 U.S.C. 1431–1435), and considerations § 1.45 Delegations to all Administra-
and decisions on contract appeals and tors.
other matters pursuant to the Depart- (a) Except as prescribed by the Sec-
ment of Transportation Contract Ap- retary of Transportation, each Admin-
peals Regulations (41 CFR part 12–60). istrator is authorized to:
(h) Printing. Requesting approval of
(1) Exercise the authority of the Sec-
the Joint Committee on Printing for
retary over and with respect to any
any procurement or other action re-
personnel within their respective orga-
quiring Committee approval.
nizations.
(i) Interagency agreements. Execution
of any written interdepartmental or (2) Exercise the authority of the Sec-
interagency agreement with the head retary as executive head of a depart-
of another executive department or ment, under any statute, Executive
agency. order or regulation.
(j) Withholding of funds. Withholding (3) Request the Attorney General to
or suspension of Federal-Aid Highway approve the award, compromise, or set-
funds on a state-wide basis and the tlement of any tort claim for an
waiver or compromise of such with- amount exceeding $100,000 (excluding
holding or suspension, except for the interest) (28 U.S.C. 2672).
administration of 23 U.S.C. 141 and 154, (4) Carry out the functions vested in
which are specifically delegated in the Secretary concerning environ-
§ 1.48(b) (23) and (28) and in § 1.50(i) (1) mental enhancement by 49 U.S.C. 303.
and (2). (5) Carry out the emergency pre-
(k) Alaska Railroad. Extension or paredness functions assigned to the
abandonment of railroad service. Secretary by Executive Order 12656 and
16
by the Federal Emergency Manage- velop and implement affirmative ac-

ment Agency, General Services Admin- tion and diversity plans within their
istration (FEMA/GSA) as they pertain respective organizations. With regard
to his administration, including those to external civil rights programs, each
relating to continuity of operations, Administrator exercises authority pur-
emergency resource management, asso- suant to statutes, regulations, execu-
ciated Federal claimant procedures, fa- tive orders, or delegations in subpart C
cilities protection and warfare effects of this part to carry out these pro-
monitoring and reporting, research, grams, under the general policy guid-
stockpiling, financial aid, and training. ance of the Director of the Depart-
(6) Enter into inter- and mental Office of Civil Rights, including
intradepartmental reimbursable agree- conducting compliance reviews and
ments other than with the head of another activities relating to the enforce-
other department or agency (31 U.S.C. ment of these statutes, regulations,
686). This authority may be redelegated and executive orders.
only to Office Directors, Regional Di- (11) Review and approve for payment
rectors, District Commanders or other any voucher for $25 or less the author-
comparable levels and Contracting Of- ity for payment of which is questioned
ficers. by a certifying or disbursing officer.
(7) Determine the existence and (12) Authorize and approve official
amount of indebtedness and the meth- non-foreign travel and transportation
od of collecting repayments from em- for themselves, their subordinates, and
ployees and members within their re- others performing services for, or in co-
spective administrations and collect operation with, their operating admin-
repayments accordingly, as provided by istrations. Additionally, heads of oper-
5 U.S.C. 5514. Redelegation of this au- ating administrations, through a re-
thority may be made only to the prin- delegation from the Deputy Secretary,
cipal officials responsible for financial may authorize and approve routine
management or such officials’ prin- operational foreign travel, as defined
cipal assistants. in DOT 1500.6A, Travel Manual, of 1–2–
(8) Waive claims and make refunds in 85. These authorities may be redele-
connection with claims of the United gated in accordance with regulations
States for erroneous payment of pay issued by the Assistant Secretary for
and allowances or of travel, transpor- Administration.
tation, and relocation expenses and al- (13) Exercise the authority of the
lowances in amounts aggregating not Secretary to make certifications, find-
more than $1,500 without regard to any ings and determinations under the Reg-
repayments, and deny requests for ulatory Flexibility Act (Pub. L. 96–354)
waiver of such claims regardless of the with regard to any rulemaking docu-
aggregate amount of the claim, as pro- ment for which issuance authority is
vided by 4 CFR parts 91, 92, and 93. Re- delegated by other sections in this
delegation of this authority may be part. This authority may be redele-
made only to the level of Regional Di- gated to those officials to whom docu-
rector or District Commander. ment issuance authority has been dele-
(9) Settle and pay claims by employ- gated.
ees for personal property losses as pro- (14) Carry out the functions vested in
vided by 31 U.S.C. 3721. This authority the Secretary by section 2 of the Fed-
may be redelegated only to Office Di- eral Technology Transfer Act of 1986,
rectors, Regional Directors, District (Pub. L. No. 99–502; 15 U.S.C. 3710a),
Commanders, or other comparable lev- which authorizes agencies to permit
els and to those individuals that report their laboratories to enter into cooper-
to the above officials. ative research and development agree-
(10) Exercise the authority of the ments.
Secretary to resolve informal allega- (15) Compromise, suspend collection
tions of discrimination arising in or re- action on, or terminate claims of the
lating to their respective organizations United States not exceeding $100,000
through Equal Employment Oppor- (excluding interest) that are referred
tunity counseling or the Alternative to, or arise out of the activities of, his
Dispute Resolution process and to de- or her Operating Administration;
17
(16) Compromise, suspend collection (b) Except as otherwise specifically

action on, or terminate claims against provided, each official to whom author-
the United States not exceeding ity is granted by § 1.45 through 1.53,
$100,000 (excluding interest) that are re- 1.66, 1.68, and 1.73 may redelegate and
ferred to, or arise out of the activities authorize successive redelegations of
of, his or her Operating Administra- that authority within the organization
tion; provided that when the Adminis- under that official’s jurisdiction.
trator believes that a claim against the (c) Except as provided in §§ 1.48 and
United States presents a novel ques- 1.59 and 49 CFR 25.302, the functions,
tion of law or of policy, he or she shall powers, and duties of the Secretary of
obtain the advice of the Assistant At- Transportation, with respect to the
torney General in charge of the Civil Uniform Relocation Assistance and
Division; and provided further that Real Property Acquisition Act of 1970,
Public Law 91–646, 84 Stat. 1984, are del-
whenever he or she settles any admin-
egated to:
istrative claim against the United
(1) The head of each of the following
States for an amount in excess of
Operating Administrations with re-
$50,000, the Administrator shall prepare
spect to programs administered by
a memorandum fully explaining the their respective organizations:
basis for the action taken and send a (i) Federal Aviation Administration;
copy of the memorandum to the Direc- (ii) Federal Highway Administration;
tor, Federal Torts Claims Act Staff, (iii) Federal Railroad Administra-
Torts Branch of the Civil Division, U.S. tion;
Department of Justice. (iv) Federal Transit Administration;
(17) Enter into memoranda of under- (v) National Highway Traffic Safety
standing with the Occupational Safety Administration;
and Health Administration (OSHA) in (vi) St. Lawrence Seaway Develop-
regard to setting and enforcing occupa- ment Corporation;
tional safety or health standards for (vii) Maritime Administration; and
employees in DOT-regulated industries. (viii) Federal Motor Carrier Safety
The General Counsel shall concur in Administration.
each memorandum of understanding (2) [Reserved]
with OSHA prior to its execution by (d) Each office to whom authority is
the Administrator of the operating ad- delegated by either § 1.45(c) or § 1.59(p)
ministration concerned. may redelegate and authorize succes-
(18) Exercise the authority vested in sive redelegations of that authority
the Secretary by Section 329A of the within the organization under the Ad-
Department of Transportation and Re- ministrators’ or Assistant Secretary
lated Agencies Appropriations Act, for Administration’s jurisdiction.
1995, Pub. L. No. 103–331, § 329A, 108 (e) Each office to whom authority is
Stat. 2471, 2493 (September 30, 1994), to delegated by either § 1.45(c) or § 1.59(p)
enter into grants, cooperative agree- may prescribe additional procedures,
ments, and other transactions with any requirements and regulations that are
person, agency, or instrumentality of appropriate to the particular programs
the United States, any unit of state or administered by the preparing official’s
local government, any educational in- organization, provided:
stitution, and any other entity in exe- (1) Any such additional guidance is
cution of the Technology Reinvestment not inconsistent with the Act, 49 CFR
Project authorized under the Defense part 25 or subpart C of this manual;
(2) Any such additional guidance is
Conversion, Reinvestment, and Transi-
approved prior to issuance by the Fed-
tion Assistance Act of 1992, Pub. L. No.
eral government’s designated lead
102–484, 106 Stat. 2658 (October 23, 1992),
agency, the Federal Highway Adminis-
and related legislation.
tration (see § 1.48(cc)), in coordination
(19) Carry out the functions vested in with the Assistant Secretary for Trans-
the Secretary by 49 U.S.C. 40119(b), as portation Policy.
implemented by 49 CFR part 15, relat-
ing to the determination that informa- [Amdt. 1–113, 40 FR 43901, Sept. 24, 1975]
tion is Sensitive Security Information EDITORIAL NOTE: For FEDERAL REGISTER ci-
within their respective organizations. tations affecting § 1.45, see the List of CFR
18
Sections Affected which appears in the Find- (5) Serve as Chair and Executive Sec-
ing Aids section of the printed volume and retary of the Department of Transpor-
on GPO Access. tation Research, Development and
Technology Planning Team.
§ 1.46 Delegations to the Administrator
of the Research and Innovative (6) Carry out the functions vested in
Technology Administration. the Secretary by section 5108 of the
Transportation Equity Act for the 21st
The Administrator of the Research Century (23 U.S.C. 508), as extended by
and Innovative Technology Adminis- the Surface Transportation Extension
tration is delegated authority for the Act of 2004, Part V, Public Law 108–310,
following: September 30, 2004, 118 Stat. 1144.
(a) Coordination of Departmental re- (7) Advocate Department of Trans-
search and development programs and ac- portation policy and program coordina-
tivities. (1) Coordinate, facilitate, and tion efforts associated with transpor-
review all Departmental research and tation research.
development programs and activities, (8) Represent the Department of
except as limited by section 4(b)(1) of Transportation on departmental, na-
the Norman Y. Mineta Research and tional and international committees
Special Programs Improvement Act and meetings dealing with transpor-
(Pub. L. 108–426, 118 Stat. 2423). tation R&D.
(2) After consultation with modal and (9) Manage the strategic planning
OST offices, RITA shall make rec- process for transportation R&D across
ommendations to the Secretary on all the Department of Transportation and,
modal and OST research budgets. through the National Science and
(b) Science and technology. (1) With re- Technology Council, across the Federal
spect to scientific and technological Government.
matters, serve as principal advisor to (10) Conduct transportation system-
the Secretary and representative of the level assessments and policy research.
Department to the academic commu- (11) Facilitate the creation of trans-
nity, the private sector, professional portation public/private partnerships.
organizations, and other Government (12) Foster innovation in the trans-
agencies. portation sector.
(2) Serve as principal liaison official (13) Disseminate information on de-
for the Department of Transportation partmental, national, and inter-
with the Office of Science and Tech- national transportation R&D activi-
nology Policy in the Executive Office ties.
of the President, the National Science (14) Manage and coordinate a nation-
and Technology Council, and the Presi- wide program of transportation re-
dent’s Committee of Advisors on search, education and technology
Science and Technology. transfer through grants to university
(3) Serve as primary official respon- transportation centers and foster uni-
sible for coordination and oversight of versity participation in the planning,
the Department’s implementation of conduct and analysis of transportation
section 2 of the Federal Technology research.
Transfer Act of 1986 (15 U.S.C. 3710a), (15) Manage department- and govern-
relating to the transfer of Federal ment-wide (inter/multimodal) trans-
technology to the marketplace; and portation R&D programs.
section 12(d) of the National Tech- (16) Oversee advisory boards that deal
nology Transfer and Advancement Act with transportation system-level R&D
of 1996 (Pub. L. 104–113), as imple- assessments and issues, such as the Na-
mented by OMB Circular A–119: Federal tional Research Council Committee on
Participation in the Development and the Federal Transportation R&D Stra-
Use of Voluntary Consensus Standards tegic Planning Process.
and in Conformity Assessment Activi- (c) Advanced vehicle technology. Carry
ties. out the functions vested in the Sec-
(4) Serve as Chair and Executive Sec- retary by section 5111 of the Transpor-
retary of the Department of Transpor- tation Equity Act for the 21st Century
tation’s Research, Development and (49 U.S.C. 5506), as extended by the Sur-
Technology Planning Council. face Transportation Extension Act of
19
2004, Part V, Public Law 108–310, Sep- Law 109–59, August 10, 2005, 119 Stat.
tember 30, 2004, 118 Stat. 1144, and sec- 1144.
tion 5513(j) of the Safe, Accountable, (j) Aviation information. (1) Carry out
Flexible, Efficient Transportation Eq- the functions vested in the Secretary
uity Act: A Legacy for Users, Title V, by 49 U.S.C. 329(b)(1) relating to the
Subtitle E, Public Law 109–59, August collection and dissemination of infor-
10, 2005, 119 Stat. 1144. mation on civil aeronautics.
(d) Remote sensing technology. Carry (2) Carry out the functions vested in
out the functions vested in the Sec- the Secretary by section 4(a)(7) of the
retary by section 5113 of the Transpor- Civil Aeronautics Board Sunset Act of
tation Equity Act for the 21st Century 1984 (October 4, 1984; Pub. L. 98–443) re-
(23 U.S.C. 502 Note), as extended by the lating to the reporting of the extension
Surface Transportation Extension Act of unsecured credit to political can-
of 2004, Part V, Public Law 108–310, Sep- didates (section 401, Federal Election
tember 30, 2004, 118 Stat. 1144, and sec- Campaign Act of 1971; 2 U.S.C. 451), in
tion 5506 of the Safe, Accountable, conjunction with the General Counsel
Flexible, Efficient Transportation Eq- and the Assistant Secretary for Avia-
uity Act: A Legacy for Users, Title V, tion and International Affairs.
Subtitle E, Public Law 109–59, August (3) Carry out the functions vested in
10, 2005, 119 Stat. 1144. the Secretary by: 49 U.S.C. 40113 (relat-
(e) University transportation research. ing to taking such actions and issuing
Carry out the functions vested in the such regulations as may be necessary
Secretary by section 5110 of the Trans- to carry out responsibilities under the
portation Equity Act for the 21st Cen- Act), 49 U.S.C. 41702 (relating to the
tury (49 U.S.C. 5505), as extended by the duty of carriers to provide safe and
Surface Transportation Extension Act adequate service), 49 U.S.C. 41708 and
of 2004, Part V, Public Law 108–310, Sep- 41709 (relating to the requirement to
tember 30, 2004, 118 Stat. 1144, and sec- keep information and the forms in
tions 5401 and 5402 of the Safe, Ac- which it is to be kept), and 49 U.S.C.
countable, Flexible, Efficient Trans- 41701 (relating to establishing just and
portation Equity Act: A Legacy for reasonable classifications of carriers
Users, Title V, Subtitle D, Public Law and rules to be followed by each) as ap-
109–59, August 10, 2005, 119 Stat. 1144. propriate to carry out the responsibil-
(f) Volpe National Transportation Sys- ities under this paragraph in conjunc-
tems Center. Exercise the authority tion with the General Counsel and the
vested in the Secretary with respect to Assistant Secretary for Aviation and
the activities of the Volpe National International Affairs.
Transportation Systems Center and (k) Hazardous materials information. In
carry out the functions vested in the coordination with the Under Secretary
Secretary by 49 U.S.C. 328 with respect for Transportation Policy, work with
to the working capital fund for financ- the Operating Administrations to de-
ing the activities of the Volpe National termine data needs, collection strate-
Transportation Systems Center. gies, and analytical techniques appro-
(g) Transportation Safety Institute. Ex- priate for implementing 49 U.S.C. 5101
ercise authority over the Transpor- et seq.
tation Safety Institute. (l) Research grants. Carry out the
(h) Transportations Statistics. Exercise functions vested in the Secretary by
the authority and carry out the func- section 5513(c), (d), (g), (h), (i), (l), and
tions vested in the Secretary by 49 (m) (as (m) relates to (c), (d), (g), (h),
U.S.C. 112(d)(1)(C) relating to transpor- (i), (j), and (l)) of the Safe, Account-
tation statistics, analysis, and report- able, Flexible, Efficient Transportation
ing. Equity Act: A Legacy for Users, Title
(i) Intermodalism. Carry out the func- V, Subtitle E, Public Law 109–59, Au-
tions vested in the Secretary by 49 gust 10, 2005, 119 Stat. 1144.
U.S.C. 5503(d) and Section 4149 of the (m) Biobased transportation research.
Safe, Accountable, Flexible, Efficient Carry out the functions vested in the
Transportation Equity Act: A Legacy Secretary by section 5201(m) of the
for Users, Title IV, Subtitle A and Sec- Safe, Accountable, Flexible, Efficient
tion 5209, Title V, Subtitle B, Public Transportation Equity Act: A Legacy
20
for Users, Title V, Subtitle B, Public (1) The Airport and Airway Develop-
Law 109–59, August 10, 2005, 119 Stat. ment Act of 1970, as amended (49 U.S.C.
1144. 1701 et seq.), except sections 3 and 4 (49
(n) Transportation research and devel- U.S.C. 1702, 1703).
opment strategic planning. Carry out the (2) Sections 208 and 209 of the Airport
function vested in the Secretary by and Airway Revenue Act of 1970, as
Section 5208 of Public Law 109–59, 119 amended (49 U.S.C. 1742, 1742 note); and
Stat. 1144 (Aug. 10, 2005). (3) Sections 21, 22, 23(b), 24, and 25 of
[70 FR 8300, Feb. 18, 2005, as amended at 71
the Airport and Airway Development
FR 30830, May 31, 2006; 71 FR 52753, Sept. 7, Act Amendments of 1976 (49 U.S.C.
2006] 1346(a), 1348 note, 1713 note, 1356a, 1704).
(g) Carry out the functions vested in
§ 1.47 Delegations to Federal Aviation the Secretary by part B of title II of
Administrator. the Clean Air Act, as amended (84 Stat.
The Federal Aviation Administrator 1703), and by 40 CFR part 87 as it re-
is delegated authority to: lates to exemptions from aircraft air
(a) Carry out the powers and duties pollution standards.
transferred to the Secretary of Trans- (h) Carry out the functions of the
portation by, or subsequently vested in Secretary under section 208 of the Ap-
the Secretary by virtue of, section palachian Regional Development Act
6(c)(1) of the Department of Transpor- of 1965 (85 Stat. 168; 40 U.S.C. App. 208).
tation Act (49 U.S.C. 1655(c)(1)), includ- (i) Carry out the functions vested in
ing those pertaining to aviation safety the Secretary by section 902(h)(2) of the
(except those related to transportation, Federal Aviation Act of 1958, as amend-
packaging, marking, or description of ed, as it relates to enforcement of haz-
hazardous materials) and vested in the ardous materials regulations as they
Secretary by section 308(b) of title 49 apply to the transportation or ship-
U.S.C. and sections 306–309, 312–314, ment of such materials by air.
1101, 1105, and 1111 and titles VI, VII, IX (j)(1) Except as delegated by § 1.74(a),
(excluding section 902(h)), and XII of carry out the functions vested in the
the Federal Aviation Act of 1958, as Secretary by 49 U.S.C. 5121(a), (b), (c),
amended. and (d), 5122, 5123, and 5124, with par-
(b) Carry out title XIII of the Federal ticular emphasis on the transportation
Aviation Act of 1958, as amended (72 or shipment of hazardous materials by
Stat. 800; 49 U.S.C. 1531 et seq.), relating air.
to aviation insurance. (2) Carry out the functions vested in
(c) Carry out the functions vested in the Secretary by 49 U.S.C. 5114 as it re-
the Secretary by the Act of September lates to the establishment of proce-
7, 1957 (71 Stat. 629; 49 U.S.C. 1324 note), dures for monitoring and enforcing pro-
as amended by section 6(a)(3)(B) of the visions of regulations with respect to
Department of Transportation Act, re- the transportation of radioactive mate-
lating to the guarantee of aircraft pur- rials on passenger-carrying aircraft.
chase loans, and those functions which (k) [Reserved]
relate to the issuance of obligations to (l) Serve, or designate a representa-
finance the expenses of such guaran- tive to serve, as Vice Chairman and al-
tees. ternate Department of Transportation
(d) Administer Executive Orders 11419 member of the Interagency Group on
and 11322 relating to prohibited avia- International Aviation (IGIA) pursuant
tion operations and the prohibited car- to interagency agreement of December
riage of commodities and products to 9, 1960, and Executive Order 11382, and
and from Southern Rhodesia. Carry out provide for the administrative oper-
the functions vested in the Secretary ation of the IGIA Secretariat.
by Executive Order 12183. (m) Carry out the functions vested in
(e) Provide certain facilities and the Secretary by sections 4(a) and 5(c)
services to FAA employees and their of Executive Order 12316 of August 14,
dependents at remote locations (49 1981 (46 FR 42237, Aug. 20, 1981) (dele-
U.S.C. 1659). gating sections 107(c)(1)(c) and 108(b),
(f) Carry out the functions vested in respectively, of the Comprehensive En-
the Secretary by: vironmental Response, Compensation,
21
and Liability Act of 1981, Pub. L. 96– (u) Carry out the functions assigned
510), insofar as they relate to aircraft. to the Secretary by Executive Order
(n) Carry out the functions vested in 12465 (February 24, 1984) (3 CFR, 1984
the Secretary by section 3(d) of the Act Comp., p. 163) relating to commercial
to Prevent Pollution from Ships (33 expendable launch vehicle activities.
U.S.C. 1902(d)) as it relates to ships (v) Carry out the functions vested in
owned or operated by the Federal Avia- the Secretary by 49 U.S.C. Subtitle IX.
tion Administration when engaged in (w) Carry out the functions vested in
noncommercial service. the Secretary by the National Aero-
(o) [Reserved] nautics and Space Administration Au-
(p) Carry out the functions vested in thorization Act, Fiscal Year 1993 (Pub.
the Secretary by: L. 102–588, 106 Stat 5119, November 4,
(1) Section 553(b) of Public Law 99–83 1992).
(99 Stat. 226), which relates to the au- (Secs. 3(e), 6(c), and 9(e), Department of
thority of Federal Air Marshals to Transportation Act (49 U.S.C. 1652(e), 1655(c),
carry firearms and make arrests, in co- and 1657(e)); 49 U.S.C. 322; 49 CFR 1.57(l))
ordination with the General Counsel; [Amdt. 1–113, 40 FR 43901, Sept. 24, 1975]
and
(2) The following subsections of sec- EDITORIAL NOTE: For FEDERAL REGISTER ci-
tion 1115 of the Federal Aviation Act of tations affecting § 1.47, see the List of CFR
Sections Affected which appears in the Find-
1958, as amended, which relates to the ing Aids section of the printed volume and
security of foreign airports: Subsection on GPO Access.
1115(a), in coordination with the Gen-
eral Counsel and the Assistant Sec- § 1.48 Delegations to Federal Highway
retary for Aviation and International Administrator.
Affairs; subsection 1115(b), in coordina- (a) Unless otherwise provided, the
tion with the Assistant Secretary for Federal Highway Administrator may
Aviation and International Affairs; and further delegate authority provided
subsection 1115(e)(2)(A)(ii), in coordina- under this section.
tion with the General Counsel and the (b) The Federal Highway Adminis-
Assistant Secretary for Aviation and trator is delegated authority to admin-
International Affairs. ister the following provisions of title
(q) Carry out all of the functions 23, Highways, U.S.C.:
vested in the Secretary under section (1) Chapter 1, Federal-Aid Highways,
404(d) of the Federal Aviation Act of except for sections 142 (as it relates to
1958 (49 U.S.C. 1374(d)), as amended by matters within the primary responsi-
section 328(a) of the Department of bility of the Federal Transit Adminis-
Transportation and Related Agencies trator), 153, 154, 158, 159, 161, and 164.
Appropriations Act of 1988 (Pub. L. 100– (2) Chapter 2, Other Highways.
202). (3) Chapter 3, General Provisions, ex-
(r) Carry out the functions vested in cept for section 322.
the Secretary by the Airport Safety (4) Section 409 of chapter 4, Highway
and Capacity Expansion Act of 1990, Safety.
title IX, subtitle B of the Omnibus (5) Chapter 5, Research, Technology,
Budget Reconciliation Act of 1990, Pub- and Education, except for sections 508
lic Law 101–508 (except those functions and 509.
vested in the Secretary by sections (6) Chapter 6, Infrastructure Finance.
9113, 9125, 9127 and 9130). (c) The Federal Highway Adminis-
(s) Carry out functions vested in the trator is delegated authority to admin-
Secretary by Airport Noise and Capac- ister the following laws relating gen-
ity Act of 1990, title IX, subtitle D of erally to highways:
the Omnibus Budget Reconciliation (1) Section 502(c) of the General
Act of 1990, Public Law 101–508. Bridge Act of 1946, as amended (60 Stat.
(t) Carry out the functions vested in 847, 33 U.S.C. 525(c)).
the Secretary by sections 321 and 410 of (2) Reorganization Plan No. 7 of 1949
the Federal Aviation Act, as amended (63 Stat. 1070).
by the Aviation Security Improvement (3) The Federal-Aid Highway Act of
Act of 1990, Public Law 101–604, Novem- 1954, as amended (Pub. L. 83–350, 68
ber 16, 1990. Stat. 70).
22
(4) The Federal-Aid Highway Act of (19) The Surface Transportation As-
1956, as amended (Pub. L. 84–627, 70 sistance Act of 1982, as amended, (Pub.
Stat. 374). L. 97–424, 96 Stat. 2097) except,
(5) The Highway Revenue Act of 1956, (i) Sections 165 and 531 as they relate
as amended (Pub. L. 84–627, 70 Stat. 374, to matters within the primary respon-
387, 23 U.S.C.A. 120 note). sibility of the Federal Transit Admin-
(6) The Alaska Omnibus Act, as istrator;
amended (Pub. L. 86–70, 73 Stat. 141, 48 (ii) Sections 105(f), 413; 414(b) (2); 421,
U.S.C.A. 21 note.). 426, and title III; and
(7) The Act of September 26, 1961, as (iii) Section 414(b)(1), unless with the
amended (Pub. L. 87–307, 75 Stat. 670). concurrence of the National Highway
(8) The Act of April 27, 1962 (Pub. L. Traffic Safety Administrator.
87–441, 76 Stat. 59). (20) Sections 103(e), 105(a) through
(9) The Federal-Aid Highway Act of (g), 106(a), and (b), 110(b), 114(d), 117(f),
1962, as amended (Pub. L. 87–866, 76 120(c) and (d), 123(g) and (i), 133(f), 134,
Stat. 1145). 136, 137, 139 through 145, 146(b), 147(c),
149(a) through (f), (h), (i), (k), 151
(10) The Joint Resolution of August
through 157, 164, and 208 of the Surface
28, 1965, as amended (Pub. L. 89–139, 79
Transportation and Uniform Reloca-
Stat. 578, 23 U.S.C.A. 101 et seq., notes).
tion Assistance Act of 1987 (Pub. L. 100–
(11) The Highway Beautification Act
17, 101 Stat. 132).
of 1965, as amended (Pub. L. 89–285, 79
(21) Sections 1002(c) and (e), 1003(c),
Stat. 1028, 23 U.S.C.A. 131 et seq.,
1004, 1006(h), 1009(c), 1012(b) and (d)
notes).
through (f), 1013(c), 1014(c), 1015, 1016(g),
(12) The Federal-Aid Highway Act of 1017(c), 1021(c) and (d), 1022(c), 1023(f)
1966, as amended (Pub. L. 889–574, 80 through (g), 1029(c), (f), and (g), 1032(d)
Stat. 766). and (e), 1038 through 1042, 1044, 1045,
(13) The Federal-Aid Highway Act of 1046(d), 1047, 1049, 1050, 1051, 1054, 1057
1968, as amended (Pub. L. 90–495, 82 through 1063, 1065, 1067, 1069, 1072, 1073,
Stat. 815). 1074, 1076, 1077, 1086, 1088 through 1092,
(14) The Federal-Aid Highway Act of 1097, 1099 through 1108, 6012, and 6014
1970, as amended (except section 118) through 6016 of the Intermodal Surface
(Pub. L. 91–605, 84 Stat. 1713). Transportation Efficiency Act of 1991
(15) Sections 103, 104, 111(b), 128(b), (Pub. L. 102–240, 105 Stat. 1914).
131, 135, 136, 141, 147, 149, 154, 158 (22) Sections 201 through 205, 327
through 161, 163, 203, 206, 401, and 402 of through 336, 339, 340, 349, 352, 353, and
the Federal-Aid Highway Act of 1973, as 408 of the National Highway System
amended (Pub. L. 93–87, 87 Stat. 250; Designation Act of 1995 (Pub. L. 104–59,
Pub. L. 93–643, 88 Stat. 2281). 109 Stat. 568).
(16) Sections 102(b) (except subpara- (23) Sections 1101(a), 1102, 1103(m) and
graph (2)) and (c); 105 (b)(1) and (c); 141; (n), 1106(a) and (d), 1107(c), 1108(f) and
146; 147; and 152 of the Federal-Aid (g), 1110(d)(2) and (e), 1112(c) and (e),
Highway Act of 1976 (Pub. L. 94–280, 90 1117(a), (b), and (d), 1118, 1119, 1202(b)
Stat. 425). and (e), 1204(i), 1207(c), 1210, 1211(i) and
(17) Sections 105, 107(c) through (e), (l), 1212 (b), (e) through (j), (l), (m), (o),
123(a) and (b), 124(c), 126(d) through (g), and (q) through (t), 1213(c), and (f)
138(c), 140, 142 through 145, 147 through through (j), 1214, 1215, 1216, 1217, 1220,
154, 167, and 171, title IV, as amended 1223, 1224, 1225, 1307(d) through (f), 1308,
(as it relates to matters within the pri- 1309, 1311, 1402, 1511, 5001, 5112, 5116
mary responsibility of the Federal through 5118, and 5203 through 5212 of
Highway Administrator), and sections the Transportation Equity Act for the
502–504 of title V of the Surface Trans- 21st Century (Pub. L. 105–178, 112 Stat.
portation Assistance Act of 1978 (Pub. 107).
L. 95–599, 92 Stat. 2689). (24) Sections 1102, 1105(f), 1109(f),
(18) The Federal-Aid Highway Act of 1111(b)(4), 1112, 1115(c), 1116(a) and (b),
1982 (Pub. L. 97–327, 96 Stat. 1611), ex- 1117, 1119(n), 1120(c), 1201, 1301, 1302,
cept section 6 as it relates to matters 1303, 1304, 1305, 1306, 1308, 1310, 1401(e),
within the primary responsibility of 1402, 1403, 1404, 1405, 1408, 1409(a) and
the Federal Transit Administrator. (b), 1410, 1411, 1502, 1603, 1604, 1801 (d),
23
1803, 1804, 1805, 1807, 1808(g) through (k), respect to the laws administered by the
1907, 1908, 1910, 1911, 1914, 1916, 1917, 1918, Federal Highway Administrator per-
1919, 1923, 1924, 1925, 1927, 1928, 1934, 1935, taining to highway safety and highway
1936, 1937, 1939, 1940, 1941, 1943, 1944, 1945, construction.
1948, 1949, 1950, 1952, 1957, 1958, 1959, 1961, (7) Carry out the functions vested in
1962, 1964, 2003(e), 4112, 4141, 4404 (as it the Secretary by section 5 (as it relates
relates to matters within the primary to bridges, other than railroad bridges,
responsibility of the Federal Highway not over navigable waters), and section
Administrator), 5101(b), 5202(b)(3)(B), 8(a) (as it relates to all bridges other
(c), and (d), 5203(e) and (f), 5204(g) and than railroad bridges) of the Inter-
(i), 5304, 5305, 5306, 5307, 5308, 5309 (ex- national Bridge Act of 1972 (Pub. L. 92–
cept (c)(4)), 5501, 5502, 5504, 5507, 5508, 434, 86 Stat. 731).
5511, 5512, 5513(b), (f), (k), and (m) (as (8) Exercise the authority vested in
(m) relates to (b), (f), and (k)), 5514, the Secretary by sections 101, 118,
6001(b), 6002(b), 6009(b) and (c) (as they 120(b), 123 and 124 of the Federal-Aid
relate to matters within the primary Highway Amendments of 1974 (Pub. L.
responsibility of the Federal Highway 93–643, January 4, 1975, 88 Stat. 2281).
Administrator), 6010 (as it relates to (9) Carry out the functions vested in
matters within the primary responsi- the Secretary by section 118 of the Na-
bility of the Federal Highway Adminis- tional Visitor Center Facilities Act of
trator), 6017, 6018, 10210, and 10212 of the
1968 (Pub. L. 90–264, 82 Stat. 43), as
Safe, Accountable, Flexible, Efficient
added by the Union Station Redevelop-
Transportation Equity Act: A Legacy
ment Act of 1981 (Pub. L. 97–125; 95
for Users (Pub. L. 109–59, 119 Stat. 1144).
Stat. 1672), with respect to the comple-
(d) The Federal Highway Adminis-
tion of the parking facility and associ-
trator is delegated authority to:
ated ramps at Union Station in Wash-
(1) Carry out the functions vested in
ington, DC (40 U.S.C. 818).
the Secretary of Transportation by sec-
tion 601 of the Pipeline Safety Act of (10) Carry out the functions vested in
1992 (Pub. L. 102–508, 106 Stat. 3289) re- the Secretary by Public Law 98–229, 98
lating to construction of the Page Ave- Stat. 55, insofar as it relates to appor-
nue Extension Project in Missouri. tioning certain funds for construction
(2) Carry out the functions of the of the Interstate Highway System in
Secretary under the Appalachian Re- Fiscal Year 1985, apportioning certain
gional Development Act of 1965 (Pub. funds for Interstate substitute highway
L. 89–4, 79 Stat. 5, 40 U.S.C. Subtitle IV) projects, and increasing amounts avail-
except section 208. able for emergency highway relief.
(3) Carry out the Act of September (11) Prescribe regulations, as nec-
21, 1966, Public Law 89–599, relating to essary, at parts 24 and 25 of this title,
certain approvals concerned with a to implement Public Law 91–646, 84
compact between the States of Mis- Stat. 1894, and any amendments there-
souri and Kansas. to, as appropriate, in coordination with
(4) Carry out the law relating to the the Assistant Secretary for Transpor-
Chamizal border highway (Pub. L. 89– tation Policy, and carry out all other
795, 80 Stat. 1477). functions vested in the Secretary by
(5) Carry out the Highway Safety Act the Uniform Relocation Assistance and
of 1966, as amended (Pub. L. 89–564, 80 Real Property Acquisition Policies Act
Stat. 731) and chapter 4 of title 23 of 1970, Public Law 91–646, 84 Stat. 1894,
U.S.C. as amended by section 207 of the and any amendments thereto.
Surface Transportation Assistance Act (12) Carry out the functions vested in
of 1978 for highway safety programs, re- the Secretary of Transportation by sec-
search and development relating to tion 114 of Part C of the Paperwork Re-
highway design, construction and duction Reauthorization Act of 1986
maintenance, traffic control devices, (contained in the Act Making Con-
identification and surveillance of acci- tinuing Appropriations for Fiscal Year
dent locations, and highway-related as- 1987 and for Other Purposes, Public
pects of pedestrian and bicycle safety. Law 99–591, 100 Stat. 3341, 2241–349), re-
(6) Exercise the authority vested in lating to construction of Interstate
the Secretary by 49 U.S.C. 20134(a) with Highway H–3 in Hawaii.
24
(13) Carry out all of the functions the Interstate Commerce Commission,
vested in the Secretary under section and to intervene and present evidence
324 of the Fiscal Year 1986 Department concerning applicants’ fitness in Com-
of Transportation Appropriations Act mission proceedings under 49 U.S.C.
(Pub. L. 99–190, 99 Stat. 1288), notwith- 1653(e), relating to railroads.
standing the reservation of authority (b) Carry out the Act of September
under Sec. 1.44(j) of this part. 30, 1965, as amended (79 Stat. 893, 49
(14) Carry out the functions vested in U.S.C. 1631 et seq.), relating generally
the Secretary of Transportation by sec- to high speed ground transportation,
tion 505 of the Railroad Revitalization except issuance of reports required by
and Regulatory Reform Act of 1976, as section 13(c) (49 U.S.C. 1643(c)).
amended, (Pub. L. 94–210, 90 Stat. 31) (c) Carry out the following laws re-
relating to the Alameda Corridor lating generally to safety appliances
Project in consultation with the Fed- and equipment on railroad engines and
eral Railroad Administrator. cars, and protection of employees and
(15) Carry out the function of acting travelers:
as the lead DOT agency in matters re- (1) The Act of March 2, 1893, as
lating to the National Environmental amended (27 Stat. 531, 45 U.S.C. 1 et
Policy Act pertinent to the authority seq.);
vested in the Secretary to establish,
(2) The Act of March 2, 1903, as
operate, and manage the Nationwide
amended (32 Stat. 943, 45 U.S.C. 8 et
Differential Global Positioning System
seq.);
(NDGPS) by section 346 of the Depart-
ment of Transportation and Related (3) The Act of April 14, 1910, as
Agencies Appropriations Act, 1998 amended (36 Stat. 298, 45 U.S.C. 11 et
(Pub. L. 105–66, 111 Stat. 1425). seq.);
(16) Exercise the responsibilities of (4) The Act of May 30, 1908, as amend-
the Secretary under 49 U.S.C. 303 as it ed (35 Stat. 476, 45 U.S.C. 17 et seq.);
relates to matters within the primary (5) The Act of February 17, 1911, as
responsibility of the Federal Highway amended (36 Stat. 913, 45 U.S.C. 22 et
Administrator. seq.);
(17) Exercise the responsibilities of (6) The Act of March 4, 1915, as
the Secretary under the National Envi- amended (38 Stat. 1192, 45 U.S.C. 30);
ronmental Policy Act of 1969 (42 U.S.C. (7) Reorganization Plan No. 3 of 1965
4321 et seq.) and other Federal laws re- (79 Stat. 1320, 45 U.S.C. 22 note);
lated to programs, projects, and activi- (8) Joint Resolution of June 30, 1906,
ties administered by the Federal High- as amended (34 Stat. 838, 45 U.S.C. 35);
way Administration. (9) The Act of May 27, 1908, as amend-
(18) Exercise the responsibilities of ed (35 Stat. 325, 45 U.S.C. 36 et seq.);
the Secretary under section 176(c) of (10) The Act of March 4, 1909, as
the Clean Air Act (42 U.S.C. 7506(c)), as amended (35 Stat. 965, 45 U.S.C. 37); and
amended by section 6011 of the Safe, (11) The Act of May 6, 1910, as amend-
Accountable, Flexible, Efficient Trans- ed (36 Stat. 350, 45 U.S.C. 38 et seq.).
portation Equity Act: A Legacy for (d) Carry out the Act of March 4, 1907,
Users (Pub. L. 109–59, 119 Stat. 1144), as as amended (34 Stat. 1415, 45 U.S.C. 61 et
it relates to matters within the pri- seq.), relating generally to hours of
mary responsibility of the Federal service of railroad employees.
Highway Administrator. (e) Carry out the functions vested in
(19) Exercise the responsibilities of the Secretary by section 5 of the Inter-
the Secretary under 49 U.S.C. 309. national Bridge Act of 1972 (Pub. L. 92–
[71 FR 30830, May 31, 2006] 434) as it relates to railroad bridges not
over navigable waterways.
§ 1.49 Delegations to Federal Railroad (f) Carry out section 25 of the Inter-
Administrator. state Commerce Act, as amended (49
The Federal Railroad Administrator U.S.C. 26), relating generally to rail-
is delegated authority to: road safety appliances, methods, and
(a) Investigate and report on safety systems.
compliance records of applicants seek- (g) Exercise the administrative pow-
ing railroad operating authority from ers under the Interstate Commerce Act
25
with respect to powers and duties per- by the Rail Transportation Improve-
taining to railroad safety transferred ment Act (Pub. L. 94–555).
to the Secretary (49 U.S.C. 1655(f)). (q) Carry out the functions vested in
(h) Operate and administer the Alas- the Secretary by subsections 4 (h) and
ka Railroad under the Act of March 12, (i) of the Department of Transpor-
1914, as amended (38 Stat. 305), and Ex- tation Act, as amended (49 U.S.C.
ecutive Order 11107 (28 FR 4225 (1963)). 1653(h), (i)).
(i) Make individual and general (r) [Reserved]
changes in freight rates and passenger (s) Except as delegated by § 1.74(a),
fares for the Alaska Railroad, without carry out the functions vested in the
power to redelegate authority for gen- Secretary by 49 U.S.C. 5121(a), (b), (c)
eral changes in freight rates and pas- and (d), 5122, 5123, and 5124, with par-
senger fares. ticular emphasis on the transportation
(j) Promote and undertake research or shipment of hazardous materials by
and development relating to rail mat- railroad.
ters generally (49 U.S.C. 1653(a), (t) Carry out the functions vested in
1657(e)(1), 1657(n)(1), and 1657(q)(1)). the Secretary by sections 204(c); except
(k) Carry out the functions vested in authority to issue subpoenas; 402; 403;
the Secretary by subtitle B of the Na- 502; 503; 504; 505; 506, except (c); 507; 508;
tional Visitor Center Facilities Act of 511; 512; 513; 515; 517; 606; 610; 703; 704,
1968, as added by the Union Station Re- except (c)(1); and 705; 707; 901; 905, as
development Act of 1981 (Pub. L. 97–125; applicable, of the Railroad Revitaliza-
95 Stat. 1667) except section 114(e) and tion and Regulatory Reform Act of
such parts of section 118 as provided for 1976, as amended, section 5 of the De-
the completion of the parking facility partment of Transportation Act (49
and associated ramps at Union Station U.S.C. 1654), except authority to issue
in Washington, DC. subpoenas.
(l) Exercise the authority vested in (u) Carry out functions vested in the
the Secretary by the Emergency Rail Secretary by sections 17(a) and (b) (as
Services Act of 1970 (Pub. L. 91–663) ex- they relate to consultations with the
cept the authority to make findings re- Administrator of the Environmental
quired by section 3(a) of that Act and Protection Agency) of the Noise Con-
the authority to sign guarantees of cer- trol Act of 1972 (Pub. L. 92–574, 49
tificates issued by trustees. U.S.C. 1431).
(m) Carry out the functions vested in (v) Carry out the functions vested in
the Secretary by the Federal Railroad the Secretary by the Rock Island Rail-
Safety Act of 1970 (title II of Pub. L. road Transition and Employee Assist-
91–458); 84 Stat. 971, 45 U.S.C. 421 et. ance Act (title I of Pub. L. 96–254) and
seq.), except section 204(b) (84 Stat. 972, by section 18 of the Milwaukee Rail-
45 U.S.C. 433(b)) with respect to high- road Restructuring Act (49 U.S.C. 916).
way, traffic, and motor vehicle safety (w) Carry out the functions vested in
and highway construction. the Secretary by section 305 of the Re-
(n) Carry out the functions vested in gional Rail Reorganization Act of 1973,
the Secretary by the Emergency Rail as amended (45 U.S.C. 745).
Facilities Restoration Act of 1972 (Pub. (x) Carry out the functions vested in
L. 92–591). the Secretary by sections 4(a) and 5(c)
(o) Carry out the functions vested in of Executive Order 12316 of August 14,
the Secretary by subsection (b) (except 1981 (46 FR 42237, Aug. 20, 1981) (dele-
as it relates to conducting consulta- gating sections 107(c)(1)(c) and 108(b),
tions with the Administrator of the respectively, of the Comprehensive En-
Environmental Protection Agency) and vironmental Response, Compensation,
(c) of section 17 of the Noise Control and Liability Act of 1981, Pub. L. 96–
Act of 1972 (Pub. L. 92–574). 510), insofar as they relate to rolling
(p) Carry out the functions vested in stock.
the Secretary by sections 201(i)(3); (y) Carry out the functions vested in
202(b)(7); 203, except authority to issue the Secretary by the Northeast Rail
subpoenas; 210; 212; 213; 215; 402; 403; and Service Act of 1981 (Pub. L. 97–35).
601 of the Regional Rail Reorganization (z) Carry out the functions vested in
Act of 1973 (Pub. L. 93–236) as amended the Secretary by section 3 of the
26
Bridge Act of 1906, as amended (33 tation, relating to the approval of

U.S.C. 493), relating to disputes over means to ensure the availability of pri-
the terms and compensation for use of vate personnel and equipment to re-
railroad bridges built under the Act. move, to the maximum extent prac-
(aa) Carry out the functions vested in ticable, a worst case discharge, the re-
the Secretary by titles II through VII view and approval of response plans,
of the Rail Safety and Service Im- and the authorization of railroads, sub-
provement Act of 1982 (Pub. L. 97–468), ject to the Federal Water Pollution
which relates to rail safety, rail fi- Control Act (33 U.S.C. 1321), to operate
nances, and the transfer of The Alaska without approved response plans, ex-
Railroad to the State of Alaska. cept as delegated in § 1.46(m).
(bb) Carry out the functions vested in (jj) Exercise the authority vested in
the Secretary by section 4031 of the
the Secretary by the Swift Rail Devel-
Budget Reconciliation Act of 1986 (Pub.
opment Act of 1994, being Title I—
L. 99–509), which relates to the aboli-
High-Speed Rail of Public Law 103–440
tion of the United States Railway As-
sociation, and the execution of the (108 Stat. 4615), as it relates to the pro-
functions and duties of the Association vision of financial assistance for high-
transferred to the Secretary, effective speed rail corridor planning and tech-
April 1, 1987. nology improvements, the promulga-
(cc) Carry out the functions vested in tion of necessary safety regulations,
the Secretary by section 18 (g) and (h) and the redemption of outstanding ob-
of the Rail Safety Improvement Act of ligations and liabilities with respect to
1988 (Pub. L. 100–342). the Columbus and Greenville Railway
(dd) Carry out the function vested in under Sections 505 and 511 of the Rail-
the Secretary by section 1163 of the road Revitalization and Regulatory Re-
Bankruptcy Code (11 U.S.C. 1163), form Act of 1976 (45 U.S.C. 825 and 831,
which relates to the nomination of respectively).
trustee for rail carriers in reorganiza- (kk) Carry out the functions and ex-
tion, with the concurrence of the Office ercise the authority vested in the Sec-
of the General Counsel. retary by 23 U.S.C. 322, titled the Mag-
(ee) Carry out the functions vested in netic Levitation Transportation Tech-
the Secretary by section 5701 of title 49 nology Deployment Program.
of the United States Code, with respect (ll) Carry out the function of deter-
to transportation by railroad. mining the Federal requirements for
(ff) Exercise the authority vested in the Nationwide Differential Global Po-
the Secretary by the Crime Control sitioning System (NDGPS) as a nec-
Act of 1990 (Pub. L. 101–647) as it relates essary part of the Secretary’s author-
to a railroad police officer’s authority ity to establish, operate, and manage
to enforce the laws of any jurisdiction
the NDGPS granted by Section 346 of
in which the police officer’s rail carrier
Public Law 105–66, titled the Depart-
employer owns property.
ment of Transportation and Related
(gg) Carry out the functions vested in
Agencies Appropriations Act, 1998.
the Secretary by sections 16 and 21 of
the Hazardous Materials Transpor- (mm) Carry out the functions and ex-
tation Uniform Safety Act of 1990 (Pub. ercise the authority vested in the Sec-
L. 101–615; 104 Stat. 3244 (49 App. U.S.C. retary by sections 1307, 1946, 9004, 9006,
1813 note and 1817 note)). and 9007 of the Safe, Accountable,
(hh) Exercise the authority vested in Flexible, Efficient Transportation Eq-
the Secretary by Section 601 (d) and (e) uity Act: A Legacy for Users (Pub. L.
of the National and Community Serv- No. 109–59, 119 Stat. 1144) as they relate
ice Act of 1990 (45 U.S.C. 546 note) as it to deployment of magnetic levitation
relates to the discharge of human transportation projects, the Gateway
waste from railroad passenger cars. Rural Improvement Pilot Program, a
(ii) Carry out the functions and exer- study of the impact of public safety of
cise the authority delegated to the Sec- train travel in communities without
retary in section 2(d)(2) of Executive grade separation, capital grants to the
Order 12777 (3 CFR, 1991 Comp.; 56 FR Alaska Railroad, and a study of rail
54757), with respect to rail transpor- transportation and regulation.
27
(nn) Carry out the functions and ex- (3) 158.

ercise the authority vested in the Sec- (h) Carry out the consultation func-
retary by section 20154 of title 49, tions vested in the Secretary by Execu-
United States Code relating to capital tive Order 11912, as amended.
grants for rail line relocation projects. (i) Carry out section 209 of the Sur-
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975] face Transportation Assistance Act of
1978, as amended (23 U.S.C. 401 note)
EDITORIAL NOTE: For FEDERAL REGISTER ci-
tations affecting § 1.49, see the List of CFR and section 165 of the Surface Trans-
Sections Affected which appears in the Find- portation Assistance Act of 1982, as
ing Aids section of the printed volume and amended (23 U.S.C. 101 note), with re-
on GPO Access. spect to matters within the primary re-
sponsibility of the National Highway
§ 1.50 Delegation to the National High- Traffic Safety Administrator.
way Traffic Safety Administrator.
(j) Administer section 414(b)(1) of the
The National Highway Traffic Safety Surface Transportation Assistance Act
Administrator is delegated authority of 1982, as amended (49 U.S.C. 2314) with
to: the concurrence of the Federal High-
(a) Carry out the National Traffic way Administrator, and section
and Motor Vehicle Safety Act of 1966, 414(b)(2).
as amended (15 U.S.C. 1381 et seq.). (k) Carry out section 2(c) of the
(b) Carry out the Highway Safety Act Truth in Mileage Act of 1986 (15 U.S.C.
of 1966, as amended (23 U.S.C. 401 et 1988 note).
seq.), except for highway safety pro-
(l) Carry out section 204(b) of the
grams, research and development relat-
Surface Transportation and Uniform
ing to highway design, construction
Relocation Assistance Act of 1987, Pub-
and maintenance, traffic control de-
lic Law 100–17 (101 Stat. 132) with the
vices, identification and surveillance of
coordination of the Federal Highway
accident locations, and highway-re-
Administrator.
lated aspects of pedestrian and bicycle
safety. (m) Carry out the functions vested in
(c) Exercise the authority vested in the Secretary by section 15(f) of the
the Secretary by section 210(2) of the Sanitary Food Transportation Act of
Clean Air Act, as amended (42 U.S.C. 1990 (Pub. L. 101–500; 104 Stat. 1213).
7544(2)). (n) Carry out, in coordination with
(d) Exercise the authority vested in the Federal Motor Carrier Safety Ad-
the Secretary by section 204(b) of the ministrator, the authority vested in
Federal Railroad Safety Act of 1970 (45 the Secretary by subchapter III of
U.S.C. 433(b)) with respect to laws ad- chapter 311 and section 31502 of title 49,
ministered by the National Highway U.S.C., to promulgate safety standards
Traffic Safety Administrator per- for commercial motor vehicles and
taining to highway, traffic and motor equipment subsequent to initial manu-
vehicle safety. facture when the standards are based
(e) Carry out the Act of July 14, 1960, upon and similar to a Federal Motor
as amended (23 U.S.C. 313 note) and the Vehicle Safety Standard promulgated,
National Driver Register Act of 1982 (23 either simultaneously or previously,
U.S.C. 401 note). under chapter 301 of title 49, U.S.C.
(f) Carry out the functions vested in (o) Carry out the functions and exer-
the Secretary by the Motor Vehicle In- cise the authority vested in the Sec-
formation and Cost Savings Act of 1972, retary under 23 U.S.C. 406 (e)(3), as
as amended (15 U.S.C. 1901 et seq.), ex- added by section 2005(a) of SAFETEA–
cept section 512. LU, Public Law 109–59, to engage in ac-
(g) Administer the following sections tivities with States and State legisla-
of title 23, United States Code, with the tors to consider proposals related to
concurrence of the Federal Highway safety belt use laws. The National
Administrator: Highway Traffic Safety Administrator
(1) 141, as it relates to certification of may further delegate this authority,
the enforcement of speed limits; including to other modal Administra-
(2) 154 (a), (b), (d), (e), (f), (g) and (h); tors within the Department of Trans-
and portation.
28
(p) Carry out the functions and exer- (26) Section 10309(a), testing, in re-
cise the authority vested in the Sec- gard to 15-passenger van safety.
retary under the ‘‘Safe, Accountable, [Amdt. 1–226, 53 FR 23122, June 20, 1988, as
Flexible, Efficient Transportation Eq- amended by Amdt. 1–239, 56 FR 6810, Feb. 20,
uity Act: A Legacy for Users’’ or 1991; 65 FR 41015, July 3, 2000; 71 FR 11541,
‘‘SAFETEA–LU’’ (Pub. L. 109–59; Au- Mar. 8, 2006; 71 FR 30832, May 31, 2006]
gust 10, 2005), as it relates to:
(1) Section 1906, the grant program to § 1.51 Delegations to Federal Transit
Administrator.
prohibit racial profiling;
(2) Section 2001(d), transfers; The Federal Transit Administrator is
(3) Section 2003(c), on-scene motor delegated authority to exercise the
functions vested in the Secretary by:
vehicle collision causation;
(a) The Urban Mass Transportation
(4) Section 2003(d), research on dis- Act of 1964, as amended (78 Stat. 302, 49
tracted, inattentive, and fatigued driv- U.S.C. 1601 et seq.).
ers; (b) Section 1 of Reorganization Plan
(5) Section 2003(f), refusal of intoxica- No. 2 of 1968 (5 U.S.C. app. 1).
tion testing; (c) Section 10 of the Urban Mass
(6) Section 2003(g), impaired motor- Transportation Assistance Act of 1970,
cycle driving; Public Law 91–453, 84 Stat. 962, 968).
(7) Section 2003(h), reducing impaired (d) Sections 3 and 9 through 15 of the
driving recidivism; National Capital Transportation As-
(8) Section 2009(f), annual evaluation, sistance Act of 1969, as amended (D.C.
in regard to high visibility enforce- Code, § 1–2441 et seq).
ment program; (e) The following sections of title 23,
(9) Section 2010, motorcyclist safety; United States Code:
(10) Section 2011, child safety and (1) 103 as it involves the withdrawal
child booster seat incentive grants; of Interstate routes and the substi-
(11) Section 2012, safety data; tution of non-highway public mass
transit projects authorized by sub-
(12) Section 2013, drug-impaired driv-
section (e)(4);
ing enforcement; (2) 101(a) as it involves approval of
(13) Section 2014, first responder vehi- boundaries of urban and urbanized
cle safety program; areas, 104(f)(4), 105(d), 106(b) as it in-
(14) Section 2015, driver performance volves the Federal-aid urban system,
study; and 134; and
(15) Section 2016, rural state emer- (3) 101 (b), (c), (d), and (e); 105 (a) and
gency medical services optimization (g); 106 (a), (c) and (d); 108; 109 (a), (g),
pilot program; and (h); 110; 112; 113; 114; 116 (a) and (c);
(16) Section 2017, older driver safety; 117; 121; 122; 124; 128; 140(a); 142; and 145
law enforcement training; as they involve mass transportation
(17) Section 5513(e), automobile acci- projects authorized by sections
dent injury research; 103(e)(4), 142(a)(2), or 142(c).
(18) Section 5513(m) as it relates to (f) Title II of the National Mass
section 513(e); Transportation Assistance Act of 1974
(19) Section 10202, emergency medical (Pub. L. 93–503, November 26, 1974), ex-
services; cept sections 204 and 205.
(g) Title 49 United States Code, chap-
(20) Section 10302, side-impact crash
ter 53 as amended by the Safe, Ac-
protection rulemaking;
countable, Flexible, Efficient Trans-
(21) Section 10303, tire research; portation Equity Act: A Legacy for
(22) Section 10305(b), publication of Users (SAFETEA–LU) (Pub. L. 109–59,
nontraffic incident data collection; August 10, 2005).
(23) Section 10306, study of safety belt (h) 49 U.S.C. 303 as it involves public
use technologies; (mass) transportation projects.
(24) Section 10307(b), regulations, in (i) Sections 3040, 3041, 3044, 3045, 3046,
regard to safety labeling requirements; 3048, 3049, and 3050 of the Safe, Ac-
(25) Section 10308, power window countable, Flexible, Efficient Trans-
switches; and portation Equity Act: A Legacy for
29
Users (Pub. L. 109–59, 119 Stat.1144); in the Secretary by the Federal pipe-
sections 6009 (b) and (c) and 6010 of the line safety laws (49 U.S.C. 60101 et seq.).
Safe, Accountable, Flexible, Efficient (2) Exercise the authority and carry
Transportation Equity Act: A Legacy out the functions vested in the Sec-
for Users as they relate to public retary under section 28 of the Mineral
(mass) transit projects; and the fol- Leasing Act, as amended (30 U.S.C.
lowing provisions as amended by 185).
SAFETEA–LU and as related to public (3) Exercise the authority and carry
(mass) transportation projects: out the functions vested in the Sec-
(1) 23 U.S.C. 139, 326, and 502(h); and retary under section 21 of the Deep-
(2) 42 U.S.C. 7506(c). water Port Act of 1974, as amended (33
U.S.C. 1520) relating to the establish-
[Amdt. 1–157, 45 FR 83408, Dec. 18, 1980, as
amended by Amdt. 1–168, 47 FR 16632, Apr. 19,
ment, enforcement and review of regu-
1982; Amdt. 1–180, 48 FR 15476, Apr. 11, 1983; lations concerning the safe construc-
Amdt. 1–187, 48 FR 52678, Nov. 21, 1983; Amdt. tion, operation or maintenance of pipe-
1–191, 49 FR 6908, Feb. 24, 1984; Amdt. 1–203, 50 lines on Federal lands and the Outer
FR 30275, July 25, 1985; 68 FR 34550, June 10, Continental Shelf.
2003; 71 FR 30832, May 31, 2006] (4) Exercise the authority and carry
out the functions vested in the Sec-
§ 1.52 Delegations to Saint Lawrence retary under section 5 of the Inter-
Seaway Development Corporation national Bridge Act of 1972 (33 U.S.C.
Administrator.
535) as it relates to pipelines not over
The Administrator of the Saint Law- navigable waterways.
rence Seaway Development Corpora- (5) Exercise the authority and carry
tion is delegated authority to: out the functions vested in the Sec-
(a) Carry out the functions vested in retary under the Outer Continental
the Secretary by sections 4, 5, 6, 7, 8, 12 Shelf Lands Act, as amended (43 U.S.C.
and 13 of section 2 of the Port and 1331 et seq.) with respect to the estab-
Tanker Safety Act of 1978 (92 Stat. lishment, enforcement and review of
1471) as they relate to the operation of regulations concerning pipeline safety.
the St. Lawrence Seaway. (6) Exercise the authority and carry
(b) Carry out the functions vested in out the functions delegated to the Sec-
the Secretary by section 5 of the Inter- retary under sections 4(a) and 5(c) of
national Bridge Act of 1972 (Pub. L. 92– Executive Order 12316 (46 FR 42237, Aug.
434) as it relates to the St. Lawrence 20, 1981) (delegating sections 107(c)(1)(c)
River. and 108(b), respectively, of the Com-
(c) Carry out the functions vested in prehensive Environmental Response,
the Secretary by section 3(d) of the Act Compensation, and Liability Act of
to Prevent Pollution from Ships (33 1981, as amended (42 U.S.C. 9601 et seq.))
U.S.C. 1902(d)) as it relates to ships as they relate to pipelines.
owned or operated by the Corporation (7) Exercise the authority and carry
when engaged in noncommercial serv- out the functions vested in the Sec-
ice. retary by section 7005 of the Consoli-
(d)–(e) [Reserved] dated Omnibus Budget Reconciliation
Act of 1985 (recodified at 49 U.S.C. 60301
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
amended by 45 FR 48630, July 21, 1980; Amdt. by Pub. L. 103–272) as they relate to
1–167, 47 FR 11677, Mar. 18, 1982; 60 FR 38971, pipeline safety user fees.
July 31, 1995; Amdt. 1–272, 60 FR 63450, Dec. (8) Exercise the authority and carry
11, 1995; Amdt. 1–292, 63 FR 10782, Mar. 5, 1998] out the functions vested in the Sec-
retary by 49 U.S.C. 6101 et seq. as they
§ 1.53 Delegations to the Administrator relate to pipeline damage prevention
of the Pipeline and Hazardous Ma- One Call programs.
terials Safety Administration. (9) Exercise the authority and carry
The Administrator of the Pipeline out the functions vested in the Sec-
and Hazardous Materials Safety Ad- retary by the Pipeline Safety Improve-
ministration is delegated authority for ment Act of 2002 (Pub. L. 107–355, 116
the following: Stat. 2985).
(a) Pipelines. (1) Exercise the author- (b) Hazardous materials. Except as del-
ity and carry out the functions vested egated by § 1.74(a):
30
(1) Carry out the functions vested in § 1.54 Delegations to all Secretarial Of-
the Secretary by 49 U.S.C. 5121(a), (b), ficers.
(c), (d) and (e), 5122, 5123, and 5124, with (a) This section sets forth general
particular emphasis on the shipment of delegations to the Deputy Secretary,
hazardous materials and the manufac- the Deputy Under Secretary, the Gen-
ture, fabrication, marking, mainte- eral Counsel, the Inspector General and
nance, reconditioning, repair or test of the Assistant Secretaries.
multi-modal containers that are rep- (b) Each officer named in paragraph
resented, marked, certified, or sold for (a) of this section is delegated author-
use in the transportation of hazardous ity to:
materials; and (1) Redelegate and authorize succes-
(2) Carry out the functions vested in sive redelegations of authority granted
the Secretary by all other provisions of by the Secretary within their respec-
the Federal hazardous material trans- tive organizations, except as limited by
portation law (49 U.S.C. 5101 et seq.) ex- law or specific administrative reserva-
cept as delegated by §§ 1.47(j)(2) and tion, including authority to publish
1.73(d)(2) of this chapter and by para- those redelegations in appendix A of
graph 2(99) of Department of Homeland this part.
Security Delegation No. 0170. (2) Authorize and approve official
(c) Carry out the functions vested in travel (except foreign travel) and
the Secretary by section 4(e) of the transportation for themselves, their
subordinates, and others performing
International Safe Container Act (46
services for, or in cooperation with, the
U.S.C. 1503(e)).
Office of the Secretary. This authority
(d) Exercise the authority and carry may be redelegated in accordance with
out the functions delegated to the Sec- regulations issued by the Assistant
retary in the following sections of Ex- Secretary for Administration.
ecutive Order 12777 (56 FR 54757, Oct. 22, (3) Communicate directly with chair-
1991): men of Field Coordination Groups pro-
(1) Section 2(b)(2) relating to the es- vided such communications are largely
tablishment of procedures, methods, informational in character and do not
equipment and other requirements to conflict with program responsibilities
prevent discharges from, and to con- of the operating administrations.
tain oil and hazardous substances in, (4) Establish ad hoc committees for
pipelines, motor carriers, and rail- specific tasks within their assigned
roads; and staff area.
(2) Section 2(d)(2) relating to the (5) Establish, modify, extend, or ter-
issuance of regulations requiring the minate standing committees within
owners or operators of pipelines, motor their specific areas of responsibility
carriers, and railroads, subject to the when directed or authorized to do so by
Federal Water Pollution Control Act the Secretary.
(33 U.S.C. 1321 et seq.), to prepare and (6) Designate members of interagency
submit response plans. For pipelines committees when such committees are
subject to the Federal Water Pollution specifically concerned with responsibil-
Control Act, this authority includes ities of direct interest to their office.
the approval of means to ensure the (7) Exercise the following authorities
availability of private personnel and with respect to executive level posi-
equipment to remove, to the maximum tions (GS–16, 17, or 18 or equivalent)
within their respective areas of respon-
extent practicable, a worst case dis-
sibility:
charge, the review and approval of re-
(i) Determine how executive level po-
sponse plans, and the authorization of
sitions will be filled; i.e., by reassign-
pipelines to operate without approved ment, promotion, appointment.
response plans.
(ii) Establish selection criteria to be
[70 FR 8301, Feb. 18, 2005, as amended at 71 used in identifying eligible candidates.
FR 30833, May 31, 2006; 71 FR 52753, Sept. 7, (iii) Confer with the Administrators
2006] on selection criteria and candidates for
an executive level position that is a
31
counterpart of an activity or position order, regulations, or instructions of

in the Office of the Secretary. the Secretary. In addition, the Deputy
(iv) Recommend final selection for Secretary is delegated authority to:
executive level positions, subject to re- (a) Exercise executive control over
view by the Executive Committee of the Departmental Planning-Program-
the Departmental Executive Personnel ming-Budgeting System.
Board and approval by the Secretary (b) Serve as Chairman of the Depart-
and the Civil Service Commission. mental Executive Personnel Board and
(v) Serve as ad hoc member of the De- its Executive Committee.
partmental Executive Personnel Board (c) Originate direct correspondence
at the call of the Chairman and serve to chairmen of Field Coordination
on the Board’s Executive Committee Groups on overall Departmental mat-
whenever matters involving their re- ters.
spective offices or a functional coun-
(d) Approve the establishment, modi-
terpart thereof in an operating admin-
fication, extension, or termination of:
istration are presented to the Execu-
tive Committee for its consideration. (1) Department-wide (intra-depart-
(8) Enter into inter- and intra-department) committees affecting more than
mental reimbursable agreements other one program.
than with the head of another depart- (2) OST-sponsored interagency com-
ment or agency (31 U.S.C. 686). This au- mittees.
thority may be redelegated only to of- (3) All advisory committees (includ-
fice directors or other comparable lev- ing industry advisory committees) ex-
els and to contracting officers. cept those sponsored by field activities
(9) Administer and perform the func- of the operating administrations.
tions described in their respective (e) Approve the designation of:
functional statements. (1) Departmental representatives and
(10) Exercise the authority of the the chairman for interagency commit-
Secretary to make certifications, find- tees sponsored by the Office of the Sec-
ings and determinations under the Reg- retary.
ulatory Flexibility Act (Pub. L. 96–354) (2) Departmental representatives on
with regard to any rulemaking docu- all advisory committees except those
ment for which issuance authority is sponsored by a field component of one
delegated by other sections in this of the operating administrations or the
part. This authority may be redele- Materials Transportation Bureau.
gated to those officials to whom docu- (3) Departmental members for inter-
ment issuance authority has been dele- national committees.
gated. (f) Authorize and approve official
(11) Exercise the authority of the travel and transportation for self, sub-
Secretary to resolve informal allega- ordinates, and others performing serv-
tions of discrimination arising in or re- ices for or in cooperation with the Of-
lating to their respective organizations fice of the Secretary; and authorize and
through Equal Employment Oppor- approve official foreign travel of all
tunity counseling or the Alternative Departmental personnel and others
Dispute Resolution process and to de- performing travel for the Department.
velop and implement affirmative ac- (g) Serve as the representative of the
tion and diversity plans within their Secretary on the board of directors of
respective organizations. the National Railroad Passenger Cor-
(49 U.S.C. 1657(e)(1)) poration and carry out the functions
vested in the Secretary as a member of
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
amended by Amdt. 1–114, 41 FR 1288, Jan. 7, the board by section 303 of the Rail
1976; Amdt. 1–157, 45 FR 83408, Dec. 18, 1980; Passenger Service Act of 1970 (84 Stat.
Amdt. 1–159, 46 FR 22593, Apr. 20, 1981; Amdt. 1330).
265, 60 FR 2891, Jan. 12, 1995] (h) Serve as the representative of the
Secretary as incorporator, member of
§ 1.55 Delegations to Deputy Secretary. the acting board of directors, member
The Deputy Secretary may exercise of the board of directors, and member
the authority of the Secretary except of the executive committee of the
where specifically limited by law, board of directors, of the United States
32
Office of the Secretary of Transportation § 1.56a
Railway Association and when so serv- ning and implementing energy con-
ing carry out the functions vested in servation matters with the Department
the Secretary in each capacity by title of Energy. Serves as the Department’s
II of the Regional Rail Reorganization principal conservation officer.
Act of 1973 (Pub. L. 93–236), as amended.
[Amdt. 1–261, 59 FR 10063, Mar. 3, 1994]
(i) Serve as the representative of the
Secretary as incorporator, member of § 1.56a Delegations to the Assistant
the interim board of directors estab- Secretary for Aviation and Inter-
lished by section 301(c) of the Regional national Affairs.
Rail Reorganization Act of 1973 (Pub.
L. 93–236), and member of the board of The Assistant Secretary for Aviation
directors, of the Consolidated Rail Cor- and International Affairs is delegated
poration and when so serving carry out authority to:
the functions vested in the Secretary (a) Represent the Secretary of Trans-
in each capacity by title III of the Re- portation on various interagency
gional Rail Reorganization Act of 1973 boards, committees, and commissions
(Pub. L. 93–236). to include the Trade Policy Review
Group and the Trade Policy Staff Com-
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
amended by Amdt. 1–114, 41 FR 1288, Jan. 7,
mittee.
1976; Amdt. 1–116, 41 FR 20680, May 20, 1976; (b) Except with respect to pro-
Amdt. 1–126, 41 FR 56327, Dec. 28, 1976; Amdt. ceedings under section 4(e) of the De-
1–157, 45 FR 83408, Dec. 18, 1980; Amdt. 1–165, partment of Transportation Act (49
46 FR 55266, Nov. 9, 1981] U.S.C. 307) relating to safety fitness of
an applicant, decide on requests to in-
§ 1.56 Delegations to the Assistant Sec-
retary for Transportation Policy. tervene or appear before administra-
tive agencies to present the views of
The Assistant Secretary for Trans- the Department subject to concurrence
portation Policy is delegated authority by the General Counsel.
to: (c) Carry out the functions of the
(a) Establish policy and maintain Secretary pertaining to aircraft with
oversight of implementation of the Na- respect to Transportation Orders T–1
tional Environmental Policy Act of and T–2 (44 CFR chapter IV) under the
1969, as amended (42 U.S.C. 4321–4347)
Act of September 8, 1950, as amended
within the Department of Transpor-
(50 U.S.C. app. 2061 et seq.) and Execu-
tation.
tive Order No. 10480 (3 CFR, 1949–1953
(b) Oversee the implementation of
comp., p. 962), as amended.
section 4(f) of the Department of
Transportation Act of 1969 (49 U.S.C. (d) Serve as Department of Transpor-
303). tation member of the Interagency
(c) Represent the Secretary of Trans- Group on International Aviation, and
portation on various interagency pursuant to Executive Order No. 11382
boards, committees, and commissions (3 CFR, 1966–1970 comp., p. 691), as
to include the Architectural and Trans- amended, serve as Chair of the Group.
portation Barriers Compliance Board (e) Serve as second alternate rep-
and the Advisory Council on Historic resenting the Secretary of Transpor-
Preservation. tation to the Trade Policy Committee
(d) Except with respect to pro- as mandated by Reorganization Plan
ceedings under section 4(e) of the De- No. 3 of 1979 (5 U.S.C. app. at 1381 (1988))
partment of Transportation Act (49 and Executive Order No. 12188 (3 CFR,
U.S.C. 307) relating to safety fitness of 1980 comp., p. 131), as amended.
an applicant, decide on requests to in- (f)(1) As supplemented by 14 CFR part
tervene or appear before administra- 385, as limited by paragraph (f)(2) of
tive agencies to present the views of this section, and except as provided in
the Department subject to concurrence §§ 1.53(g), 1.57(a), and 1.57(s) of this title,
by the General Counsel. carry out the functions transferred to
(e) Carry out the functions vested in the Department from the Civil Aero-
the Secretary by section 656 of the De- nautics Board under the following stat-
partment of Energy Organization Act utes:
(42 U.S.C. 7266) which pertains to plan- (i) 49 U.S.C. app. 1551(b); and
33
§ 1.56b 49 CFR Subtitle A (10–1–07 Edition)
(ii) Section 4(a)(1) through (4), (6), Federal Aviation Act of 1958, as amend-
and (8) through (10) of the Civil Aero- ed, (49 U.S.C. 1301(3), 1324, 1374, 1377 (a)
nautics Board Sunset Act of 1984 (49 and (e), 1381, and 1386) as appropriate to
U.S.C. app. 1553(a)(1) through (4), (6), the consumer protection functions in
and (8) through (10)). this paragraph.
(2) Insofar as the delegation in this (i) Carry out the functions of the Sec-
paragraph (f) authorizes review of deci- retary pertaining to a determination of
sions of the Designated Senior Career whether a fee imposed upon one or
Official in the Office of the Assistant more air carriers by the owner or oper-
Secretary for Aviation and Inter- ator of an airport is reasonable under
national Affairs under § 1.56b of this section 113 of the Federal Aviation Ad-
title, the authority is limited to ap- ministration Authorization Act of 1994
proving any such decision or remand- (August 23, 1994; Pub. L. 103–305; 108
ing it for reconsideration by the Des- Stat. 1577–1579).
ignated Senior Career Official, with a (j) Carry out section 101(a)(2) of the
full written explanation of the basis for Air Transportation Safety and System
the remand. Stabilization Act (Public Law 107–42,
(g) Carry out the functions vested in 115 Stat. 230), as delegated to the Sec-
the Secretary by the following sub- retary of Transportation by the Presi-
sections of section 1115 of the Federal dent pursuant to a Presidential Memo-
Aviation Act of 1958, as amended, randum dated September 25, 2001.
which relates to the security of foreign [Amdt. 1–261, 59 FR 10063, Mar. 3, 1994, as
airports: amended by Amdt. 1–266, 60 FR 11046, Mar. 1,
(1) Subsection 1115(e)(1), in coordina- 1995; Amdt. 1–269, 60 FR 15877, Mar. 28, 1995; 66
tion with the General Counsel, and the FR 55599, Nov. 2, 2001]
Federal Aviation Administrator; and
(2) Subsection 1115(e)(3), in coordina- § 1.56b Delegations to the Designated
tion with the General Counsel, the Fed- Senior Career Official, Office of the
eral Aviation Administrator, the As- Assistant Secretary for Aviation
and International Affairs.
sistant Secretary for Governmental Af-
fairs, and the Assistant Secretary for The Designated Senior Career Offi-
Administration. cial in the Office of the Assistant Sec-
(h) Carry out the following statutory retary for Aviation and International
provisions relating to consumer protec- Affairs is delegated exclusive authority
tion: to make decisions in all hearing cases
(1) Section 4(a)(5) of the Civil Aero- to select a carrier for limited-designa-
nautics Board Sunset Act of 1984 (49 tion international route authority, and
U.S.C. app. 1553(a)(5)) relating to en- in any other case that the Secretary
forcement of the Consumer Credit Pro- designates, under the authority trans-
tection Act; ferred to the Department from the
(2) Sections 101(3) (relating to reliev- Civil Aeronautics Board described in
ing certain carriers from provisions of §§ 1.56a(f) and 1.57(s) of this title; this
the Federal Aviation Act), 204 (relating includes the authority to adopt, reject
to taking such actions and issuing such or modify recommended decisions of
regulations as may be necessary to administrative law judges.
carry out responsibilities under the [Amdt. 1–261, 59 FR 10064, Mar. 3, 1994, as
Act), 404 (relating to enforcing the amended by Amdt. 1–269, 60 FR 15877, Mar. 28,
duty of carriers to provide safe and 1995]
adequate service), 407(a) (relating to re-
quiring the production of information), § 1.57 Delegations to General Counsel.
407(e) (relating to entering carrier The General Counsel is delegated au-
property, and inspecting records), 411 thority to:
(relating to determining whether any (a) Conduct all rule-making pro-
carrier or ticket agent is engaged in ceedings, except the issuance of final
unfair or deceptive practices or unfair rules, under specific laws relating gen-
methods of competition), and 416 (re- erally to standard time zones and day-
lating to establishing just and reason- light saving (advanced standard) time.
able classifications of carriers and (b) Determine the practicability of
rules to be followed by each) of the applying the standard time of any
34
standard time zone to the movements tervene or appear before courts or

of any common carrier engaged in agencies to present the views of the De-
interstate or foreign commerce and partment, subject to the concurrence
issue operating exceptions in any case of other interested staff elements in
in which the General Counsel deter- the Office of the Secretary.
mines that it is impractical to apply (i) Exercise the authority delegated
the standard time. to the Department by the Assistant At-
(c) Provide and coordinate the De- torney General, Land and Natural Re-
partment’s counseling service to em- sources Division, in his order of Octo-
ployees on questions of conflict of in- ber 2, 1970, to approve the sufficiency of
terest and other matters of legal im- the title to land being acquired by pur-
port covered by Departmental regula- chase or condemnation by the United
tions on employee responsibility and States for the use of the Department.
conduct. Assure that counseling and Redelegation and successive redelega-
interpretations on these matters are tions of this authority may only be
available to designated Deputy Coun- made to attorneys within the Depart-
selors of the Department. Serve as the ment.
Department’s designee to the Civil (j) Issue regulations making editorial
Service Commission on these matters. changes or corrections in the Regula-
(d) Serve as the alternate representations of the Office of the Secretary.
tive of the Secretary on the Board of (k) Review and take final action on
Directors of the National Railroad Pas- applications for reconsideration of ini-
senger Corporation when so designated tial decisions not to disclose unclassi-
by the Secretary or Deputy Secretary fied records of the Office of the Sec-
and carry out the functions vested in retary requested under 5 U.S.C.
the Secretary as a member of the board 552(a)(3).
by section 303 of the Rail Passenger (l) Consider, ascertain, adjust, deter-
Service Act of 1970 (84 Stat. 1330). mine, compromise, and settle for an
(e) Grant permission, under specific amount not exceeding $25,000, any tort
circumstances, to deviate from a policy claim arising from the activities of any
or procedure prescribed by part 9 of the employee of the Office of the Sec-
regulations of the Office of the Sec- retary. Request the approval of the At-
retary (part 9 of this subtitle) with re- torney General for any such award,
spect to testimony of OST employees compromise, or settlement in excess of
as witnesses in legal proceedings, the $25,000 (28 U.S.C. 2672).
serving of legal process and pleadings (m) Conduct coordination with for-
in legal proceedings involving the Sec- eign governments under section 118 of
retary or his Office, and the production the Deep Seabed Hard Mineral Re-
of records of that Office pursuant to sources Act (June 21, 1980).
subpoena. (n) Grant or deny petitions for exten-
(f) Prepare proposed Executive orders sion of time to file a document under
and proclamations (including trans- part 202 of title 46.
mittal documents), effect appropriate (o) Deny petitions for rulemaking or
Departmental coordination, and deter- petitions for exemptions in accordance
mine whether the transmittal to the with § 5.13(c) of this title, and notify pe-
Office of Management and Budget titioners of denials in accordance with
should be submitted over the Sec- § 5.13(d) of this title.
retary’s signature or the General Coun- (p) Exercise the review authority del-
sel’s. egated to the Secretary by the Presi-
(g) Emboss and affix the official De- dent in Executive Order 12597 of May
partmental seal to appropriate docu- 13, 1987.
ments and other materials, for all pur- (q) Assist and protect consumers in
poses for which authentication by seal their dealings with the air transpor-
is required. tation industry and assist state and
(h) Except with respect to pro- local organizations in handling airline
ceedings under section 4(e) of the De- consumer complaints. Carry out 49
partment of Transportation Act (80 U.S.C. 40113 and 41771 as appropriate to
Stat. 934) relating to safety fitness of those functions.
an applicant, decide on requests to in- (r)–(s) [Reserved]
35
§ 1.57a 49 CFR Subtitle A (10–1–07 Edition)
(t) Carry out the functions vested in the Office of the Secretary (including
the Secretary by 49 U.S.C. 40119(b), as the Office of the Inspector General) and
implemented by 49 CFR part 15, relat- issue procedures to ensure uniform De-
ing to the determination that informa- partmental implementation of statutes
tion is Sensitive Security Information. and regulations regarding public access
to records.
(10 U.S.C. 1552; 49 U.S.C. 1655(b); 49 U.S.C. 322;
49 CFR 1.57(l)) [Amdt. 1–228, 54 FR 10010, Mar. 9, 1989, as
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975] amended by Amdt. 1–261, 59 FR 10064, Mar. 3,
1994]
EDITORIAL NOTE: For FEDERAL REGISTER ci-
tations affecting § 1.57, see the List of CFR § 1.58 Delegations to Assistant Sec-
Sections Affected which appears in the Find- retary for Budget and Programs.
ing Aids section of the printed volume and
on GPO Access.
The Assistant Secretary for Budget
and Programs is delegated authority
§ 1.57a Delegations to Deputy General to:
Counsel. (a) Exercise day-to-day operating
management responsibility over the
The Deputy General Counsel is dele-
Office of Programs and Evaluation and
gated authority to:
the Office of Budget.
(a) Appear on behalf of the Depart-
(b) Direct and manage the Depart-
ment on the record in hearing cases,
mental planning, evaluation, and budg-
and to initiate and carry out enforce-
et activities.
ment actions on behalf of the Depart-
(c) Request apportionment or re-
ment, under the authority transferred
apportionment of funds by the Office of
to the Department from the Civil Aero-
Management and Budget, provided that
nautics Board as described in §§ 1.56a(f)
no request for apportionment or re-
and 1.57(s). This includes the authority
apportionment which anticipates the
to compromise penalties under 49
need for a supplemental appropriation
U.S.C. 46301; to issue appropriate or-
shall be submitted to the Office of
ders, including cease and desist orders,
Management and Budget without ap-
under 49 U.S.C. 46101; and to require the
propriate certification by the Sec-
production of information, enter car-
retary.
rier property and inspect records and
(d) Issue allotments or allocations of
inquire into the management of the
funds to components of the Depart-
business of a carrier under 49 U.S.C.
ment.
41711, as appropriate to the enforce- (e) Authorize and approve official
ment responsibilities. In carrying out travel and transportation for staff
these functions, the Deputy General members of the Immediate Office of
Counsel is not subject to the super- the Secretary including authority to
vision of the General Counsel. sign and approve related travel orders
(b) Initiate and carry out enforce- and travel vouchers, but not including
ment actions relating to: requests for overseas travel.
(1) Foreign airport security on behalf (f) Issue monetary authorizations for
of the Department under 49 U.S.C. use of reception and representation
44907; and funds.
(2) The Consumer Credit Protection (g) Act for the Secretary and Deputy
Act under section 4(a)(5) of the Civil Secretary with respect to certain budg-
Aeronautics Board Sunset Act of 1984 etary and administrative matters re-
(October 4, 1984; Pub. L. 98–443). In car- lating to the Immediate Office of the
rying out these functions, the Deputy Secretary.
General Counsel is not subject to the (h) Provide Congressional Notifica-
supervision of the General Counsel. tion for Energy Savings Performance
[Amdt. 1–269, 60 FR 15877, Mar. 28, 1995] Contracts (ESPCs) with cancellation
ceilings in excess of $750,000, pursuant
§ 1.57b Delegations to the Assistant to the National Energy Conservation
General Counsel for Environmental, Policy Act, as amended, 42 U.S.C. 8287
Civil Rights, and General Law. et seq.
Administer 5 U.S.C. 552 and 49 CFR (i) In accordance with the Federal
part 7 in connection with the records of Civil Penalties Inflation Adjustment
36
Act of 1990 (Pub. L. 101–410, 104 Stat. and its Executive Resources Review
890), as amended by the Debt Collection Committee.
Improvement Act of 1996 (Pub. L. 104– (3) Exercise emergency authority to
134, 110 Stat. 1321), review, on an an- hire without the prior approval of the
nual basis, each of the Department’s Deputy Secretary normally required by
civil penalty provisions, determine Departmental procedures imple-
whether adjustment is required, cal- menting general employment limita-
culate the necessary adjustment, and tions when in the judgment of the As-
coordinate with the relevant Operating sistant Secretary immediate action is
Administration to ensure that the req- necessary to effect the hire and avoid
uisite regulation making the adjust- the loss of a well-qualified job appli-
ment is issued. cant, and for similar reasons.
[Amdt. 1–130, 42 FR 58754, Nov. 11, 1977. Re- (4) Review proposals of the Office of
designated by Amdt. 1–157, 45 FR 83409, Dec. the Secretary for each new appoint-
18, 1980, as amended by Amdt. 1–293, 63 FR ment or transfer to:
33589, June 19, 1998; 68 FR 12834, Mar. 18, 2003] (i) Verify the essentiality of the posi-
tion, and
§ 1.59 Delegations to the Assistant Sec- (ii) [Reserved]
retary for Administration.
(5) Approve employment of experts
The Assistant Secretary for Adminis- and consultants in accordance with 5
tration is delegated authority for the U.S.C. 3109.
following: (6) Serve as Vice Chairman of the De-
(a) Acquisition. (1) Exercise procure- partmental Executive Personnel Board
ment authority with respect to re- and its Executive Committee.
quirements of the Office of the Sec- (7) Issue final interpretations for the
retary. Department and its administrations on
(2) Make the required determinations matters arising under section 7117 of
with respect to mistakes in bids rel- title VII of the Civil Service Reform
ative to sales of personal property con- Act of 1978.
ducted by the Office of the Secretary (8) Develop, coordinate, and issue
without power of redelegation. wage schedules for Department em-
(3) Carry out the functions vested in ployees under the Federal Wage Sys-
the Secretary by sections 3 and 4(b) (as tem, except as delegated to the Com-
appropriate) of Executive Order 11912. mandant of the Coast Guard at § 1.46.
(4) Carry out the functions delegated (c) Finance. (1) Administer the finan-
to the Secretary from time to time by cial and fiscal affairs of the Office of
the Administrator of General Services the Secretary (other than those for
to lease real property for Department which the Assistant Secretary for
use. Budget and Programs is responsible),
(5) Carry out the duties and respon- in accordance with 31 U.S.C. 3512.
sibilities of agency head for depart- (2) Designate to the Treasury Depart-
mental procurement within the mean- ment certifying officers and designated
ing of the Federal Acquisition Regula- agents for the Office of the Secretary
tion. This authority as agency head for and imprest fund cashiers for the De-
departmental procurement excludes partmental headquarters. (Redelega-
duties, responsibilities, and powers ex- tion to the Director of Financial Man-
pressly reserved for the Secretary of agement is contained in subpart C,
Transportation. § 1.59a.)
(6) Serve as Deputy Chief Acquisition (3) In accordance with 31 U.S.C. 3527,
Officer. grant or recommend relief from ac-
(b) Personnel. (1) Conduct a personnel countability for losses or deficiencies
management program for the Office of of disbursing officers, cashiers, or other
the Secretary with authority to take, accountable officers as follows:
direct others to take, recommend or (i) Grant relief for losses or defi-
approve any personnel action with re- ciencies of less than $500 for which
spect to such authority. charges or exceptions have not been
(2) Serve as Vice Chairman of the De- raised by the General Accounting Of-
partmental Executive Resources Board fice.
37
(ii) Recommend relief by the Comp- (13) Carry out the functions and du-
troller General for all other losses or ties assigned to the Secretary with re-
deficiencies. spect to the Debt Collection Act of
(4) Settle and pay claims by employ- 1982, Public Law 97–365.
ees of the Office of the Secretary, ex- (d) Special funds. Except as otherwise
cept at the Transportation System delegated, establish or operate, or
Center, for personal property losses, as both, such special funds as may be re-
provided by 31 U.S.C. 241(b). quired by statute or by administrative
(5) Waive claims and make refunds in determination. This excludes the
connection with claims of the United Working Capital Fund (49 U.S.C. 327).
States for erroneous payment of pay
(e) Security. (1) Represent the Sec-
and allowances or of travel, transpor-
tation, and relocation expenses and al- retary on the National Communica-
lowances to an employee of the Office tions Security Committee and Inter-
of the Secretary in amounts aggre- departmental Committee on Internal
gating not more than $1,500 without re- Security.
gard to any repayments, and deny re- (2) Issue identification media ‘‘by di-
quests for waiver of such claims re- rection of the Secretary’’.
gardless of the aggregate amount of (3) Classify information in the inter-
the claim, as provided by 4 CFR parts ests of national defense.
91, 92, and 93. This authority may be (4) Take certain classified actions on
redelgated only to the Director of Fi- behalf of the Department in connection
nancial Management. with counter-audio programs.
(6) Compromise, suspend collection (5) Authorize exceptions to investiga-
action on, or terminate claims of the tive standards for National Defense Ex-
United States not exceeding $100,000 ecutive Reservists.
(excluding interest) which are referred (6) Determine when emergencies,
to, or arise out of the activities of, the
other than attack on the United
Office of the Secretary.
States, justify activation of Personnel
(7) Determine the existence and
amount of indebtedness and the meth- Security Regulations issued by the
od of collecting repayments from em- Secretary.
ployees of the Office of the Secretary (7) Approve exceptions to the Per-
and collect repayments accordingly, as sonnel Security regulations issued by
provided by 5 U.S.C. 5514. This author- the Secretary.
ity may be redelegated only to the Di- (8) Request the Office of Personnel
rector of Financial Management. Management to modify investigative
(8) Develop, coordinate, and issue requirements in other areas.
wage schedules for Department em- (9) Ensure Department-wide compli-
ployees under the Federal Wage Sys- ance with Executive Orders 10450, 12829,
tem. 12958, 12968, and related regulations and
(9) Review and approve for payment issuances.
any voucher for $25 or less the author- (f) Printing. (1) Request approval of
ity for payment of which is questioned the Joint Committee on Printing, Con-
by a certifying or disbursing officer. gress of the United States, for any pro-
(Redelegation to the Director of Finan- curement or other action requiring
cial Management is contained in sub- Committee approval.
part C, § 1.59a.)
(2) Certify the necessity for Depart-
(10) Approve cash purchases of emer-
gency passenger transportation serv- mental periodicals and request ap-
ices costing over $100 under FPMR G– proval of the Director of the Office of
72, as amended. Management and Budget (OMB Cir-
(11) Perform accounting and related cular No. A–3 Revised as of Sept. 8,
functions in support of the essential air 1960).
service program. (g) Document authentication. Emboss
(12) Carry out the functions and obli- and affix the official Departmental seal
gations assigned to the Secretary with to appropriate documents and other
respect to the Prompt Payment Act, materials, for all purposes for which
Public Law 97–177. authentication by seal is required.
38
Office of the Secretary of Transportation § 1.59a
(h) Foreign travel. Review written re- pose of any additional implementing or
quests for modification to the Depart- supplementing policy guidances which
ment’s foreign travel plan approved by they propose to issue at the adminis-
the Office of Management and Budget. tration level.
(i) Gifts and bequests. Carry out the (2) [Reserved]
functions vested in the Secretary by
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975]
section 9(m) of the Department of
Transportation Act (Pub. L. 89–670). EDITORIAL NOTE: For FEDERAL REGISTER ci-
(j) Building management. Carry out tations affecting § 1.59, see the List of CFR
the functions vested in the Secretary Sections Affected which appears in the Find-
by sections 1(b) and 4(b) (as appro- ing Aids section of the printed volume and
on GPO Access.
priate) of Executive Order 11912.
(k) Privacy. Issue notices of Depart- § 1.59a Redelegations by the Assistant
ment of Transportation systems of Secretary for Administration.
records as required by the Privacy Act
of 1974 (5 U.S.C. 552a(e)(4), (11)). (a) The Assistant Secretary for Ad-
(l) Hearings. Provide logistical and ministration has re-delegated to the
administrative support to the Depart- Director, Office of the Senior Procure-
ment’s Office of Hearings. ment Executive the authority to:
(m) Paperwork reduction. Carry out (1) carry out the duties and respon-
the functions and responsibilities as- sibilities of agency head for depart-
signed to the Secretary with respect to mental procurement within the mean-
the Paperwork Reduction Act of 1980, ing of the Federal Acquisition Regula-
Public Law 96–511. tion except for those duties expressly
(n) Federal real property management. reserved for the Secretary of Transpor-
Carry out the functions assigned to the tation.
Secretary with respect to Executive (2) carry out the functions of the
Order 12512 of April 28, 1985. Chief Acquisition Officer except for
(o) The Uniform Relocation Assistance those functions specifically reserved
and Real Property Acquisition Policies for the Deputy Secretary.
Act of 1970, Public Law 91–646, 84 Stat. (3) procure and authorize payment
1894. Except as provided in §§ 1.45, 1.48 for property and services for the Office
and 49 CFR 25.302, the functions, pow- of the Secretary, with power to re-dele-
ers, and duties of the Secretary of gate and authorize successive re-dele-
Transportation, with respect to the gations.
Uniform Relocation Assistance and (b) The Assistant Secretary for Ad-
Real Property Acquisition Policies Act ministration has redelegated to the Di-
of 1970, are delegated to the Assistant rector of Personnel authority to:
Secretary for Administration with re- (1) Conduct a personnel management
spect to programs administered by the program for the Office of the Secretary
Office of the Secretary. This authority with authority to take, direct others to
is subject to the requirements listed in take, recommend or approve any per-
§ 1.45 that govern all Operating Admin- sonnel action with respect to such au-
istrations’ authority with respect to thority.
the Uniform Relocation Assistance and (2) Develop, coordinate, and issue
Real Property Acquisition Policies Act wage schedules for Department em-
of 1970. ployees under the Federal Wage Sys-
(p) Regulations. Issue Department of tem, except as delegated to the Com-
Transportation procurement regula- mandant of the Coast Guard at § 1.46 of
tions, subject to the following limita- this part.
tion: (c) The Assistant Secretary for Ad-
(1) Coordination. The views of the ministration has redelegated to the Di-
General Counsel, the interested admin- rector of Financial Management au-
istrations and other offices will be so- thority to:
licited in the development of the pro- (1) Designate to the Treasury Depart-
curement regulations. In commenting ment certifying officers and designated
upon proposed provisions for the pro- agents for the Office of the Secretary
curement regulations, the administra- and imprest fund cashiers for the De-
tions will indicate the nature and pur- partmental Headquarters.
39
(2) Certify to the validity of obliga- cution of functions and duties under
tions as required by 31 U.S.C. 200 and to sections 8 and 15 of the Small Business
the adequacy of bond coverage for the Investment Act, as amended (15 U.S.C.
designations under section 160(c)(2). 637 and 644).
(3) Sign reports on Budget Execution (b) Carry out the functions vested in
as required by OMB Circular A–34 (Re- the Secretary by section 906 of the
vised). Railroad Revitalization and Regu-
(4) Review and approve for payment latory Reform Act of 1976 (Pub. L. 94–
any voucher for $25 or less the author- 210), as amended.
ity for payment of which is questioned
[Amdt. 1–157, 45 FR 83409, Dec. 18, 1980]
by a certifying or disbursing officer.
(5) Process essential air service pay- § 1.63 Delegations to Assistant to the
ments. Secretary and Director of Public Af-
(6) Approve claims of OST employees fairs.
allowable under 31 U.S.C. 3721 for The Assistant to the Secretary and
amounts of $500 or less. Director of Public Affairs is delegated
[Amdt. 1–209, 51 FR 29233, Aug. 15, 1986, as authority to:
amended by Amdt. 1–232, 54 FR 46616, Nov. 6, (a) [Reserved]
1989; 69 FR 60563, Oct. 12, 2004] (b) Monitor the overall public infor-
mation program and review and ap-
§ 1.60 Delegations to the Inspector prove Departmental informational ma-
General. terials having policy-making ramifica-
The Inspector General is delegated, tions before they are printed and dis-
and has agreed to carry out, the fol- seminated.
lowing: (c) Carry out the functions vested in
(a) Aviation economics. The conduct of the Secretary by section 4(b) (as appro-
audits under 49 U.S.C. 1389; and 49 priate) of Executive Order 11912.
U.S.C. 1377(e). (d) Carry out the functions to pro-
(b) [Reserved] mote carpooling and vanpooling which
[Amdt. 1–199, 49 FR 50997, Dec. 31, 1984, as were vested in the Federal Energy Ad-
amended at 69 FR 60563, Oct. 12, 2004] ministration by section 381(b)(1)(B) of
the Energy Policy and Conservation
§ 1.61 Delegations to Assistant Sec- Act and transferred to the Department
retary for Governmental Affairs. of Transportation by section 310 of the
The Assistant Secretary for Govern- Department of Energy Organization
mental Affairs is delegated authority Act of 1977.
to: [Amdt. 1–113, 40 FR 43901, Sept. 24, 1975, as
(a) Establish procedures for respond- amended by Amdt. 1–118, 41 FR 35849, Aug. 25,
ing to Congressional correspondence. 1976; Amdt. 1–157, 45 FR 83409, Dec. 18, 1980;
(b) Serve as the Department’s point Amdt. 1–184, 48 FR 44079, Sept. 27, 1983; Amdt.
of contact in relationships with public 1–228, 54 FR 10010, Mar. 9, 1989; Amdt. 1–261, 59
and private organizations and groups FR 10064, Mar. 3, 1994]
devoted to consumer and community § 1.64 Delegations to the Director,
services or affairs. Transportation Administrative
(c) Serve as coordinator for intra-De- Service Center.
partmental consumer affairs programs.
The Director, Transportation Admin-
[Amdt. 1–157, 45 FR 83409, Dec. 18, 1980, as istrative Service Center (TASC), is del-
amended by Amdt. 1–199, 49 FR 50997, Dec. 31, egated authority to operate the Work-
1984; Amdt. 1–205, 50 FR 52468, Dec. 24, 1985; ing Capital Fund (49 U.S.C. 327).
Amdt. 1–269, 60 FR 15877, Mar. 28, 1995]
[Amdt. 1–285, 62 FR 16499, Apr. 7, 1997]
§ 1.62 Delegations to the Director of
Small and Disadvantaged Business § 1.65 Authority to classify informa-
Utilization. tion.
The Director of Small and Disadvan- (a) E.O. 12356 confers upon the Sec-
taged Business Utilization is delegated retary of Transportation authority to
authority to: originally classify information as Se-
(a) Exercise Departmental responsi- cret and Confidential with further au-
bility for the implementation and exe- thorization to delegate this authority.
40
(No official of the Department of (e) Previous delegations of authority

Transportation has authority to origi- to Department of Transportation offi-
nally classify information as Top Se- cials to originally classify information
cret.) as Secret and Confidential are hereby
(b) The following delegations of this rescinded.
authority, which may not be redele- [Amdt. 1–195, 49 FR 26594, June 28, 1984, as
gated, are hereby made: amended by Amdt. 1–261, 59 FR 10061, 10064,
(1) Office of the Secretary (OST). Chief, Mar. 3, 1994; 68 FR 34550, June 10, 2003]
Security Staff.
(2) Federal Aviation Administration § 1.66 Delegations to Maritime Admin-
istrator.
(FAA). The Administrator; Director of
Civil Aviation Security. With the exception of those authori-
(3) Maritime Administration (MARAD). ties delegated to the Maritime Subsidy
The Administrator; Associate Adminis- Board in § 1.67 of this title, the Mari-
trator for Policy and Administration time Administrator is delegated au-
(Confidential only); Director, Office of thority to:
International Activities (Confidential (a) Carry out sections 9, 12, 14a, 21a,
only); Chief, Division of National Secu- 37, 38, 40, 41, and 42 of the Shipping Act,
rity Plans (Confidential only). 1916, as amended (46 App. U.S.C. 801 et
seq.);
(c) Authority to originally classify
(b) Carry out the Merchant Marine
information as Secret or Confidential
Act, 1920, as amended (46 App. U.S.C.
is delegated to the following officials
861 et seq.), including the Ship Mort-
to become effective automatically
gage Act, 1920, as amended (46 App.
upon declaration of civil readiness
U.S.C. 921 et seq.);
level Initial Alert or the comparable
(c) Carry out the Merchant Marine
military readiness level. If invoked,
Act, 1928, as amended (46 App. U.S.C.
this authority is automatically termi-
891 et seq.);
nated when both civil and military lev- (d) Carry out section 7 of the Inter-
els return to the level of Communica- coastal Shipping Act, 1933, as amended
tions Watch or comparable readiness (46 App. U.S.C. 843 et seq.);
state. (e) Carry out the Merchant Marine
(1) OST. Deputy Secretary; Assistant Act, 1936, as amended (46 App. U.S.C.
Secretary for Transportation Policy; 1101 et seq.); except the authority dele-
Assistant Secretary for Aviation and gated to the Administrator of the Na-
International Affairs; Assistant Sec- tional Oceanic and Atmospheric Ad-
retary for Administration. ministration relating to the establish-
(2) FAA. Deputy Administrator; Di- ment of capital construction fund
rectors, FAA Regions and Centers. agreements under section 607 thereof
(3) MARAD. Deputy Administrator; and the granting of financing guaran-
Region Directors; Heads of ALFA, tees under title XI thereof, with re-
BRAVO, and CHARLIE Emergency spect to vessels in the fishing trade or
Teams when activated. industry;
(d) Although the delegations of au- (f) Carry out the Merchant Ship Sales
thority are expressed above in terms of Act of 1946, as amended (50 U.S.C. App.
positions, the authority is personal and 1735 et seq.);
is vested only in the individual occu- (g) Carry out the Suits in Admiralty
pying the position. The authority may Act (1920), as amended (46 App. U.S.C.
not be exercised ‘‘by direction of’’ a 741 et seq.);
designated official. The formal ap- (h) Carry out the Civilian Nautical
pointment or assignment of an indi- School Act, 1940 (46 App. U.S.C. 1331 et
vidual to one of the identified posi- seq.);
tions, a designation in writing of an in- (i) Carry out the Act of June 2, 1951
dividual to act in the absence of one of (46 App. U.S.C. 1241a) regarding the
these officials, or the exercise by an in- ‘‘Vessel Operations Revolving Fund’’;
dividual of the powers of one of these (j) Carry out the Act of August 9, 1954
officials by operation of law, however, (50 U.S.C. 196 et seq.) commonly called
conveys the authority to originally the Emergency Foreign Vessels Acqui-
classify information. sition Act;
41
(k) Carry out the Merchant Marine (t) Carry out all other activities pre-
Decorations and Medals Act of 1988 (46 viously vested in the Secretary of Com-
App. U.S.C. 2001 et seq.); merce and transferred pursuant to Pub-
(l) Carry out the Maritime Academy lic Law 97–31;
Act of 1958, as amended (46 App. U.S.C. (u) Carry out the functions vested in
1381 et seq.); the Secretary by section 3(d) of the Act
(m) Carry out the Act of May 16, 1972, to Prevent Pollution from Ships (33
as amended (86 Stat. 140) authorizing U.S.C. 1902(d)) as it relates to ships
sale or purchase of certain passenger owned or operated by the Maritime Ad-
vessels; ministration when engaged in non-
(n) Carry out the Act of August 22, commercial service;
1972 (86 Stat. 618) authorizing sale of (v) Carry out the responsibilities and
Liberty ships for use as artificial reefs; exercise the authorities of the Sec-
(o) Carry out section 717 of the Act of retary of Transportation under the
October 26, 1972 (86 Stat. 1184) com- Maritime Security Act of 1996, Public
monly known as the Department of De- Law 104–239;
fense Appropriations Act, 1973, and (w) Carry out the provisions of sub-
similar subsequent enactments, with title B of Public Law 101–624;
respect to transferring or otherwise (x) Carry out the responsibilities and
making available vessels under the ju- exercise the authorities of the Sec-
risdiction of the Maritime Administra- retary of Transportation under sec-
tion to another Federal agency or, tions 1008, 1009, and 1013 of Public Law
similarly, accepting vessels from an- 104–324;
other Federal agency; (y) Carry out the functions vested in
(p) Carry out the provisions of sec- the Secretary by the Oil Pollution Act
tions 10 through 13 of Public Law 103– of 1990 (August 18, 1990; Pub. L. 101–380;
451, the National Maritime Heritage 104 Stat. 484) in sections 4115(f) relating
Act of 1994, 108 Stat. 4769, 4778–4782; to vessel financing and 4117 relating to
(q) Exercise the authority vested in a feasibility study of an oil pollution
the Administrator of General Services prevention program. (See 49 CFR 1.46
by the Act of June 1, 1948, Public Law and 1.53).
80–566, 62 Stat. 281, 40 U.S.C. 318–318c (z) Carry out the functions vested in
and the Federal Property and Adminis- the Secretary by Section 2927, Title
trative Services Act of 1949, as amend- XXIX of the National Defense Author-
ed, 63 Stat. 377, and delegated to the ization Act of 1994 (Public Law 103–160;
Secretary of Transportation by the Ad- November 30, 1993) relating to author-
ministrator of General Services on ity to convey surplus real property to
March 23, 2000, relating to the enforce- public entities for use in the develop-
ment of laws for the protection of prop- ment or operation of port facilities.
erty and persons at the United States (aa) Carry out the following powers
Merchant Marine Academy, located in and duties vested in the Secretary by
Kings Point, New York. This may be the Deepwater Port Act of 1974, as
accomplished through appointment of amended (33 U.S.C. 1501–1524):
uniformed personnel as special police, (1) The authority to issue, transfer,
establishment of rules and regulations amend, or reinstate a license for the
governing conduct on the affected construction and operation of a deep-
property, and execution of agreements water port (33 U.S.C. 1503(b)).
with other Federal, State, or local au- (2) The authority to process applica-
thorities. tions for the issuance, transfer, amend-
(r) Carry out the responsibilities of ment, or reinstatement of a license for
the National Shipping Authority (ini- the construction and operation of a
tially established by the Secretary of deepwater port (33 U.S.C. 1503(b)), as
Commerce effective March 13, 1951) in amended, in coordination with the
the capacity of Director, National Commandant of the Coast Guard.
Shipping Authority; (3) Approval of fees charged by adja-
(s) Carry out the Maritime Education cent coastal States for use of a deep-
and Training Act of 1980 (46 App. U.S.C. water port and directly related land-
1295), as amended; based facilities (33 U.S.C. 1504(h)(2)).
42
(4) In collaboration with the Assist- Public Law 107–295, 116 Stat. 2064, pro-
ant Secretary for Aviation and Inter- vide training for maritime security
national Affairs and the Assistant Sec- professionals. This authority may be
retary for Transportation Policy, con- redelegated.
sultation with the Secretary of State (ee) Carry out the functions and exer-
relating to international actions and cise the authorities vested in the Sec-
cooperation in the economic, trade and retary by section 3517 of Title XXXV of
general transportation policy aspects Public Law 108–136 which relates to the
of the ownership and operation of deep- Maintenance and Repair Reimburse-
water ports (33 U.S.C. 1510). ment Pilot Program.
(5) Submission of notice of the com- (ff) Carry out the functions and exer-
mencement of a civil suit (33 U.S.C. cise the authorities vested in the Sec-
1515(b)(2)). retary by Subtitle V of title 46 United
(6) Intervention in any civil action to States Code, which establishes the
which the Secretary is not a party (33 Maritime Security Fleet.
U.S.C. 15150). (gg) Carry out the functions and ex-
(7) Authority to request the Attorney ercise the authorities vested in the
General to seek the suspension or ter- Secretary by Subtitle D of Title XXXV
mination of a deepwater port license of Public Law 108–136, which relates to
and to initiate a proceeding before the the National Defense Tank Vessel Con-
Surface Transportation Board (33 struction Assistance Program.
U.S.C. 1507, 1511(a)). (hh) Carry out the functions and ex-
(bb) Carry out the functions and exercise the authorities vested in the
ercise the authorities vested in the President by section 1019 of Pub. L. 109–
Secretary by sections 202(b), 203(b), 364 and delegated to the Secretary by
203(g), and 213(g) of division c, title II, the President.
Public Law 105–277, which relate to
ownership and control requirements for [Amdt. 1–164, 46 FR 47459, Sept. 28, 1981]
vessel fishery endorsements for vessels EDITORIAL NOTE: For FEDERAL REGISTER ci-
measuring 100 feet and greater. tations affecting § 1.66, see the List of CFR
(cc) Exercise the authority vested in Sections Affected which appears in the Find-
the Secretary of Transportation by sec- ing Aids section of the printed volume and
tion 408(a) of Public Law 105–383 ap- on GPO Access.
proved November 13, 1998, (112 Stat.
3411 and 3430), 46 U.S.C. 2302(e), relating § 1.67 Delegations to Maritime Subsidy
Board.
to the enforcement of the prohibition
of shipment of Government-impelled (a) The Maritime Subsidy Board is
cargoes on vessels if (1) the vessel has delegated authority to:
been detained and determined to be (1) Carry out all functions previously
substandard by the Secretary of Trans- vested in the Secretary of Commerce
portation for violation of an inter- pursuant to section 105(1) (except the
national safety convention to which last proviso thereto and readjustments
the United States is a party; or (2) the in determinations of operating cost dif-
operator of the vessel has on more than ferentials not requiring a hearing and
one occasion had a violation of an contractual changes reducing or re-
international safety convention to aligning service requirements not in-
which the United States is a party. The volving additional subsidy or requiring
term ‘‘Government-impelled cargo’’ a section 605(c) hearing under the Act
means cargo for which a Federal agen- (46 App. U.S.C. 1175(c)), section 105(2),
cy contracts directly for shipping by and, insofar as applicable to these func-
water or for which (or the freight of tions, section 105(3) of Reorganization
which) a Federal agency provides fi- Plan No. 21 of 1950, and section 202(b)(1)
nancing, including financing by grant, of Reorganization Plan No. 7 of 1961,
loan, or loan guarantee, resulting in except investigations, hearings and de-
shipment of the cargo by water. terminations, including changes in de-
(dd) Carry out the functions and ex- terminations, with respect to min-
ercise the authority vested in the Sec- imum manning scales, minimum wage
retary by section 109 of the Maritime scales, and minimum working condi-
Transportation Security Act of 2002, tions referred to in section 301(a) of the
43
Merchant Marine Act, 1936, as amended curring votes of two members shall be
(46 App. U.S.C. 1101 et seq.). sufficient for the disposition of any
(2) Carry out all functions previously matter which may come before the
vested in the Secretary of Commerce Board.
pursuant to section 103(e) of Reorga- (d) The Chairperson of the Maritime
nization Plan No. 7 of 1961 and section Subsidy Board may make use of offi-
202(b)(2) (except requiring the filing of cers and employees of the Maritime
reports, accounts, records, rates, Administration to perform activities
charges, and memoranda under section for the Board. Employees of the Mari-
21 of the Shipping Act, 1916, as amend- time Administration may be des-
ed, and making reports and rec- ignated as the Secretary or Assistant
ommendations to Congress) and section Secretaries of the Board.
202(b)(3) of Reorganization Plan No. 7
[Amdt. 1–164, 46 FR 47460, Sept. 28, 1981, as
of 1961, insofar as said functions relate amended by Amdt. 1–211, 51 FR 29471, Aug. 18,
to the functions described in paragraph 1986; Amdt. 1–247, 56 FR 59893, Nov. 26, 1991]
(a)(1) of this section.
(3) Execute and sign, by and through § 1.68 Delegations to the Under Sec-
any member of the Board or the Sec- retary of Transportation for Secu-
retary or an Assistant Secretary of the rity for the Transportation Security
Board, contracts and other documents Administration.
authorized or approved by the Board (a) Carry out the functions vested in
pursuant to paragraphs (a)(1) and (a)(2) the Secretary by 49 U.S.C. 5103a relat-
of this section. The execution of such ing to security risk determinations for
contracts or documents may be at- the issuance of licenses to operate
tested, under the seal of the Depart- motor vehicles transporting hazardous
ment of Transportation, by the Sec- materials in commerce.
retary or an Assistant Secretary of the (b) [Reserved]
Maritime Subsidy Board.
[68 FR 10989, Mar. 7, 2003]
(b) The Maritime Subsidy Board may
exercise other authorities of the Sec- § 1.69 Delegations to the Director of
retary of Transportation as applicable Intelligence, Security, and Emer-
to performing the functions assigned to gency Response.
the Board in this part.
The Director of Intelligence, Secu-
(c) The Board is composed of the
rity, and Emergency Response is dele-
Maritime Administrator, the Deputy
gated authority for the following:
Maritime Administrator, and the Chief
(a) Intelligence and Security. Carry out
Counsel of the Administration, and
the functions assigned to the Secretary
during a vacancy in any one of those
by the Aviation Security Improvement
offices, the person acting in such ca-
Act of 1990, section 101 (Pub. L. 101–508;
pacity shall be a member of the Board,
November 16, 1990) relating to intel-
unless the Secretary of Transportation
ligence and security matters in all
designates another person. In case
modes of transportation.
there still is a vacancy in the Board or
(b) Emergency preparedness and re-
in the absence or disability of one of its
sponse. Carry out the functions related
members, the Secretary of the Mari-
to emergency preparedness vested in
time Administration and Maritime
the Secretary by 49 U.S.C. 101 and 301
Subsidy Board, or any other persons
or delegated to the Secretary by or
designated by the Secretary of Trans-
through the Defense Production Act of
portation, shall act as a member or
1950, 50 U.S.C. App. 2061 et seq.; Execu-
members of the Board. Each member of
tive Order 10480, as amended; Executive
the Board, while serving in that capac-
Order 12148; Executive Order 12656; Ex-
ity, shall act pursuant to direct au-
ecutive Order 12742; Executive Order
thority from the Secretary of Trans-
12919, as amended; Reorganization Plan
portation and exercise judgment inde-
No. 3 or 1978; and such other statutes,
pendent of authority otherwise dele-
executive orders, and other directives
gated to the Maritime Administrator.
as may pertain to emergency prepared-
The Maritime Administrator or the
ness.
Acting Maritime Administrator serves
as Chairperson of the Board. The con- [70 FR 7670, Feb. 15, 2005]
44
§ 1.70 Delegations to the Director of Justice in Minority Populations and

the Departmental Office of Civil Low-Income Populations. (In coordina-
Rights. tion with the Assistant Secretary for
The Director of the Departmental Of- Transportation Policy.)
fice of Civil Rights is delegated author- (o) 49 U.S.C. 47113, 47107, and 47123
ity to conduct all stages of the formal (formerly sections 505(f), 511(a)(17), and
internal discrimination complaint 520 of the Airport and Airway Improve-
process (including the acceptance or ment Act of 1982, as amended).
rejection of complaints); to provide (p) 49 U.S.C. 41705 (formerly the Air
policy guidance to the operating ad- Carrier Access Act of 1986, as amended).
ministrations and Secretarial officers (q) The Federal-Aid Highway Act, as
concerning the implementation and en- amended, 23 U.S.C. 140 and 324.
forcement of all civil rights laws, regu- (r) 49 U.S.C. 306.
lations and executive orders for which (s) 49 U.S.C. 5310, 5332 (formerly sec-
the Department is responsible; to oth- tions 16 and 19 of the Federal Transit
erwise perform activities to ensure Act, as amended).
compliance with external civil rights (t) The Intermodal Surface Transpor-
programs; and to review and evaluate tation Efficiency Act of 1991, Pub. L.
the operating administrations’ enforce- 102–240, 105 Stat. 1919, section 1003.
ment of these authorities. (u) The Highway Safety Act of 1966,
These authorities include: as amended, 23 U.S.C. 402(b)(1)(D).
(a) Title VII of the Civil Rights Act
[Amdt. 265, 60 FR 2891, Jan. 12, 1995, as
of 1964, as amended, 42 U.S.C. 2000e et
amended at 68 FR 34550, June 10, 2003]
seq.
(b) Title VI of the Civil Rights Act of § 1.71 [Reserved]
1964, as amended, 42 U.S.C. 2000d et seq.
(c) Section 504 of the Rehabilitation § 1.72 Delegations to the Office of the
Act of 1973, as amended, 29 U.S.C. 794 Chief Information Officer.
and 794a. (a) Carry out all functions and re-
(d) Section 501 of the Rehabilitation sponsibilities assigned to the Secretary
Act of 1973, as amended, 29 U.S.C. 791. with respect to the Paperwork Reduc-
(e) Age Discrimination in Employ- tion Act of 1995 (44 U.S.C. 3506);
ment Act of 1967, as amended, 29 U.S.C. (b) Carry out all functions and re-
621 et seq. sponsibilities assigned to the Secretary
(f) Age Discrimination Act of 1975, as with respect to the Clinger-Cohen Act
amended, 42 U.S.C. 6101. of 1996 (40 U.S.C. 1422 to 1424, 1427);
(g) Americans with Disabilities Act
(c) Carry out all functions and re-
of 1990, Pub. L. No. 101–336, 104 Stat. 327
sponsibilities assigned to the Secretary
(1990) (codified at 42 U.S.C. 12101–
with respect to the Computer Security
121213).
Act of 1987 (40 U.S.C. 759, 759 notes);
(h) Equal Pay Act of 1963 (enacted as
(d) Approve waivers to Federal Infor-
section 6(d) of the Fair Labor Stand-
mation Processing Standards (FIPS)
ards Act of 1938, 29 U.S.C. 206(d)).
under Section 5131 of the Clinger-Cohen
(i) Alcohol, Drug Abuse, and Mental
Act of 1996 (40 U.S.C. 1441); and
Health Administration Reorganization
(e) Carry out all the functions and re-
Act, 42 U.S.C. 290dd(b).
(j) 29 CFR Parts 1600 through 1691 sponsibilities assigned to the Secretary
(Equal Employment Opportunity Com- with respect to Executive Order 13011,
mission Regulations). Federal Information Technology, Sec-
(k) Title VIII of the Civil Rights Act tion 2, paragraphs (a), (b), (d), (e), and
of 1968, as amended, 42 U.S.C. 3601 et seq. (f).
(fair housing provisions). [Amdt. 1–290, 62 FR 51804, Oct. 3, 1997]
(l) The Federal Property and Admin-
istrative Services Act of 1949, 40 U.S.C. § 1.73 Delegation to the Administrator
476. of the Federal Motor Carrier Safety
(m) Title IX of the Education Amend- Administration.
ments Act of 1972, 20 U.S.C. 1681. The Administrator of the Federal
(n) Executive Order No. 12898, Federal Motor Carrier Safety Admnistration is
Actions To Address Environmental delegated authority to:
45
(a) Carry out the functions and exer- (2) Carry out the functions vested in
cise the authority vested in the Sec- the Secretary by 49 U.S.C. 5112 relating
retary by 49 U.S.C., Subtitle IV, part B: to highway routing of hazardous mate-
(1) Chapter 131, relating to general rials; 49 U.S.C. 5109 relating to motor
provisions on transportation policy; carrier safety permits, except sub-
(2) Chapter 133, relating to adminis- section (f); 49 U.S.C. 5113 relating to
trative provisions; unsatisfactory safety ratings of motor
(3) Chapter 135, relating to jurisdic- carriers; 49 U.S.C. 5125(a) and (c)–(f), re-
tion; lating to preemption determinations or
(4) Chapter 137, sections 13702(a), waivers of preemption of hazardous
13702(c)(1), 13702(c)(2), 13702(c)(3), 13704, materials highway routing require-
13707, and 13708, relating to rates, ments; 49 U.S.C. 5105(e) relating to in-
routes, and services; spections of motor vehicles carrying
(5) Chapter 139, relating to registra- hazardous material; and 49 U.S.C. 5119
tion and financial responsibility re- relating to uniform forms and proce-
quirements; dures.
(6) Chapter 141, subchapter I and sec- (e) Carry out the functions vested in
tions 14121 and 14122 of subchapter II, the Secretary by:
relating to operations of motor car- (1) 49 U.S.C. chapter 313 relating to
riers; commercial motor vehicle operators,
(7) Chapter 145, sections 14501, 14502, including the requirement of section
14504, and 14504a relating to Federal- 31305(a)(5)(C) that States issue a haz-
State relations, and section 14506 relat- ardous materials endorsement to a
ing to identification of vehicles; commercial driver’s license only after
(8) Chapter 147, sections 14701 through being informed pursuant to 49 U.S.C.
14708, 14710, and 14711, relating to en- 5103a that the applicant does not pose a
forcement remedies, investigations and security risk warranting denial of the
motor carrier liability; and license; and
(9) Chapter 149, sections 14901 through (2) Section 4123(c), (d) and (e) of Pub-
14912 and 14915 relating to civil and lic Law 109–59, 119 Stat. 1735 (Aug. 10,
criminal penalties for violations of 49 2005) relating to grants, funding, and
U.S.C. subtitle IV, part B. contract authority and availability, re-
(b) Carry out the functions and exer- spectively, for commercial driver’s li-
cise the authority vested in the Sec- cense information system moderniza-
retary by sections 104, 403(a), and 408 of tion.
the ICC Termination Act of 1995, Public (f) Carry out the functions vested in
Law 104–88, 109 Stat. 803, relating to the Secretary by 49 U.S.C. 13906, 31138
miscellaneous motor carrier provi- and 31139 relating to financial responsi-
sions, railroad-highway grade crossing bility requirements for motor carriers,
regulation and fatigue-related issues brokers, and freight forwarders.
pertaining to commercial motor vehi- (g) Carry out the functions vested in
cle safety. the Secretary by subchapters I, III, and
(c) Carry out the functions vested in IV of chapter 311, title 49, U.S.C., relat-
the Secretary by 42 U.S.C. 4917 relating ing to commercial motor vehicle pro-
to procedures for the inspection, sur- grams, safety regulation, and inter-
veillance and measurement of commer- national activities, except that the au-
cial motor vehicles for compliance thority to promulgate safety standards
with interstate motor carrier noise for commercial motor vehicles and
emission standards and related enforce- equipment subsequent to initial manu-
ment activities including the promul- facture is limited to standards that are
gation of necessary regulations. not based upon and similar to a Fed-
(d)(1) Except as delegated by § 1.74(a), eral Motor Vehicle Safety Standard
carry out the functions vested in the promulgated under chapter 301 of title
Secretary by 49 U.S.C. 5121(a), (b), (c), 49, U.S.C.
and (d), 5122, 5123, and 5124, with par- (h) Carry out the functions vested in
ticular emphasis on the transportation the Secretary by 49 U.S.C. 5701 relating
or shipment of hazardous materials by to food transportation inspections of
highway. commercial motor vehicles; and 5113
46
and 31144 relating to safety fitness of grant workers, and motor private car-
owners and operators. riers; 49 U.S.C. 507 to the extent it re-
(i) Carry out the functions vested in lates to motor carriers, motor carries
the Secretary by 49 U.S.C. 5118 relating of migrant workers, motor private car-
to the use of inspectors to promote riers, or freight forwarders; and 49
safety in the highway transportation of U.S.C. 505, 508, and 521(b)(1), (2), (3), (4),
radioactive material; and 49 U.S.C. (5), and (7).
31142(f) relating to application of State (o) Carry out the functions and exer-
regulations to government-leased vehi- cise the authority vested in the Sec-
cles and operators. retary by 23 U.S.C. 502(a)(1)(A).
(j) Carry out the functions and exer- (p) Carry out the functions vested in
cise the authority delegated to the Sec- the Secretary by 49 U.S.C. 14123, relat-
retary in section 2(d)(2) of Executive ing to the collection and dissemination
Order 12777 (3 CFR, 1992 Comp., p. 351), of information on motor carriers.
with respect to highway transpor-
(q) Carry out the functions vested in
tation, relating to the approval of
the Secretary by the following sections
means to ensure the availability of pri-
of Public Law 109–59, 119 Stat. 1144
vate personnel and equipment to re-
move, to the maximum extent prac- (Aug. 10, 2005):
ticable, a worst case discharge, the re- (1) Section 4105(b)(1) relating to the
view and approval of response plans, study concerning predatory tow truck
and the authorization of motor car- operations;
riers, subject to the Federal Water Pol- (2) Section 4126 relating to the com-
lution Control Act (33 U.S.C. 1321), to mercial vehicle information systems
operate without approved response and networks program;
plans, except as delegated in 49 CFR (3) Section 4128 relating to grants
1.46(m). under the safety data improvement
(k) Carry out 49 U.S.C. 31503 as it re- program;
lates to investigation of the need for (4) Section 4129 relating to the oper-
regulation of qualifications and max- ation of commercial motor vehicles by
imum hours of service of employees of individuals who use insulin to treat di-
motor carriers and motor private car- abetes mellitus;
riers. (5) Section 4130 relating to the opera-
(l) Carry out 49 U.S.C. 31502 relating tors of vehicles transporting agricul-
generally to qualifications and max- tural commodities and farm supplies;
imum hours of service of employees (6) Section 4131 relating to the max-
and safety of operation and equipment imum hours of service for operators of
of motor carriers, motor private car- ground water well drilling rigs;
riers and motor carriers of migrant
(7) Section 4132 relating to hours of
workers, except that the authority to
service for operators of utility service
promulgate safety standards for com-
vehicles;
mercial motor vehicles and equipment
subsequent to initial manufacture is (8) Section 4133 relating to hours of
limited to standards that are not based service rules for operators providing
upon and similar to a Federal Motor transportation to movie production
Vehicle Safety Standard promulgated sites;
under chapter 301 of title 49, U.S.C. (9) Section 4134 relating to the grant
(m) Carry out 49 U.S.C. 503 and 31504 program for persons to train operators
relating generally to service of process, of commercial motor vehicles;
designation of agents to receive service (10) Section 4135 relating to the task
of process, and identification of inter- force concerning commercial driver’s
state motor vehicles so far as they per- license program;
tain to motor private carriers of prop- (11) Section 4139(a)(1) relating to the
erty and motor carriers of migrant training of and outreach to State per-
workers (except motor contract car- sonnel; section (b)(1) relating to a re-
riers). view of Canadian and Mexican compli-
(n) Carry out 49 U.S.C. 502, 504, 506, ance with Federal motor vehicles safe-
and 523 to the extent they relate to ty standards; and the first sentence of
motor carriers, motor carriers of mi- section (b)(2) relating to the report
47
concerning the findings and conclu- (a) Request apportionment and reappor-
sions of the review required by section tionment of funds by the Office of Manage-
(b)(1); ment and Budget, provided that no request
for apportionment or reapportionment which
(12) Section 4146 relating to an hours-
anticipates the need for a supplemental ap-
of-service exception during harvest pe- propriation shall be submitted to the Office
riods; of Management and Budget without appro-
(13) Section 4147 relating to emer- priate certification by the Secretary.
gency conditions requiring immediate (b) Issue allotments or allocations of funds
response; to components of the Department.
(14) Section 4213 relating to the es- 2. Chief Counsels. The General Counsel has
tablishment of a working group for the delegated to the Chief Counsels the author-
ity delegated to the General Counsel by
development of practices and proce- Amendment 1–41 to part 1 of title 49, Code of
dures to enhance Federal-State rela- Federal Regulations, 35 FR 17653, November
tions; 17, 1970, as follows:
(15) Section 4214 relating to consumer Section 855 of the Revised Statutes, as
complaint information; amended by Public Law 91–393, 84 Stat. 835
(16) Section 5503 relating to the (40 U.S.C. 255) authorizes the Attorney Gen-
motor carrier efficiency study; and eral to delegate to other departments and
agencies his authority to give written ap-
(17) Section 5513(a), under the condi-
proval of the sufficiency to the title to land
tion of section (m), relating to the re- being acquired by the United States. The At-
search grant for a thermal imaging in- torney General has delegated to the Assist-
spection system demonstration project. ant Attorney General in charge of the Land
and Natural Resources Division the author-
[64 FR 56270, Oct. 19, 1999, as amended at 64
ity to make delegations under that law to
FR 58357, Oct. 29, 1999; 65 FR 221, Jan. 4, 2000;
other Federal departments and agencies (35
65 FR 41015, July 3, 2000; 65 FR 49765, Aug. 15,
FR 16084; 28 CFR 0.66). The Assistant Attor-
2000; 67 FR 11582, Mar. 15, 2002; 68 FR 10989, ney General, Land and Natural Resources Di-
Mar. 7, 2003; 69 FR 51010, Aug. 17, 2004; 71 FR vision, has further delegated certain respon-
30833, May 31, 2006; 71 FR 52753, Sept. 7, 2006] sibilities in connection with the approval of
the sufficiency of the title to land to the De-
§ 1.74 Delegations to the Under Sec- partment of Transportation as follows:
retary for Transportation Policy.
The Under Secretary for Transpor- DELEGATION TO THE DEPARTMENT OF TRANS-
PORTATION FOR THE APPROVAL OF THE TITLE
tation Policy is delegated authority to: TO LANDS BEING ACQUIRED FOR FEDERAL PUB-
(a) Lead the development of transpor- LIC PURPOSES
tation policy and serve as the principal
adviser to the Secretary on all trans- Pursuant to the provision of Public Law
91–393, approved September 1, 1970, 84 Stat.
portation policy matters. 835, amending R.S. 355 (40 U.S.C. 255), and
(b) Carry out the functions and exer- acting under the provisions of Order No. 440–
cise the authority vested in the Sec- 70 of the Attorney General, dated October 2,
retary by section 11143 of Public Law 1970, the responsibility for the approval of
109–59, Stat. 1144, titled ‘‘Safe, Ac- the sufficiency of the title to land for the
countable, Flexible, Efficient Trans- purpose for which the property is being ac-
portation Equity Act: A Legacy for quired by purchase or condemnation by the
United States for the use of your Depart-
Users’’ to manage the day-to-day ac-
ment is, subject to the general supervision of
tivities associated with implementa- the Attorney General and to the following
tion of section 11143 regarding tax-ex- conditions, hereby delegated to your Depart-
empt financing of highway projects and ment.
rail-truck facilities. The Under Sec- This delegation of authority is further sub-
retary of Transportation for Policy ject to:
may further delegate this authority. 1. Compliance with the regulations issued
by the Assistant Attorney General on Octo-
[71 FR 30833, May 31, 2006, as amended at 71 ber 2, 1970, a copy of which is enclosed.
FR 52754, Sept. 7, 2006] 2. This delegation is limited to:
(a) The acquisition of land for which the
APPENDIX A TO PART 1—DELEGATIONS title evidence, prepared in compliance with
AND REDELEGATIONS BY SECRE- these regulations, consists of a certificate of
TARIAL OFFICERS title, title insurance policy, or an owner’s
duplicate Torrens certificate of title.
1. Director of Budget. The Assistant Sec- (b) The acquisition of lands valued at
retary for Budget and Programs has redele- $100,000 or less, for which the title evidence
gated to the Director of Budget authority to: consists of abstracts of title or other types of
48
Office of the Secretary of Transportation Pt. 5
title evidence prepared in compliance with curve outward in a counter-clockwise
said regulations. direction, each tapering almost to a
As stated in the above-mentioned Act, any point at the edge of the field. Sur-
Federal department or agency which has
rounding the blue circle is a circular
been delegated the responsibility to approve
land titles under the Act may request the ring of letters. The upper half of the
Attorney General to render his opinion as to ring shows the words ‘‘Department of
the validity of the title to any real property Transportation’’. The lower half of the
or interest therein, or may request the ad- ring shows the words ‘‘United States of
vice or assistance of the Attorney General in America’’. The letters may be shown in
connection with determinations as to the either black or medium gray. The offi-
sufficiency of titles. cial seal of the Department is modified
The Chief Counsels of the Federal Aviation
when embossed. It appears below in
Administration, Federal Highway Adminis-
tration, Federal Railroad Administration, black and white.
National Highway Traffic Safety Adminis-
tration, Federal Transit Administration, the
St. Lawrence Seaway Development Corpora-
tion, Maritime Administration, and Re-
search and Special Programs Administration
are hereby authorized to approve the suffi-
ciency of the title to land being acquired by
purchase of condemnation by the United
States for the use of their respective organi-
zations. This delegation is subject to the
limitations imposed by the Assistant Attor-
ney General, Land and Natural Resources Di-
vision, in his delegation to the Department
of Transportation. Redelegation of this au-
thority may only be made by the Chief Coun-
sels to attorneys within their respective or-
ganizations.
If his organization does not have an attor-
ney experienced and capable in the examina-
tion of title evidence, a Chief Counsel may,
with the concurrence of the General Counsel,
request the Attorney General to (1) furnish
an opinion as to the validity of a title to real
property or interest therein, or (2) provide
PART 5—RULEMAKING
advice or assistance in connection with de- PROCEDURES
termining the sufficiency of the title.
Subpart A—General
(49 CFR 1.45(a) and 1.53(a); 49 U.S.C. 322)
[Amdt. 1–113, 40 FR 43901, Sept. 24, 1975] Sec.
5.1 Applicability.
EDITORIAL NOTE: For FEDERAL REGISTER ci- 5.3 Initiation of rulemaking.
tations affecting appendix A to part 1, see 5.5 Participation by interested persons.
the List of CFR Sections Affected which ap- 5.7 Regulatory docket.
pears in the Finding Aids section of the
printed volume and on GPO Access. Subpart B—Petitions for Rulemaking or
Exemptions
PART 3—OFFICIAL SEAL 5.11 Filing of petitions.
5.13 Processing of petitions.
AUTHORITY: 49 U.S.C. 102(e).
Subpart C—Procedures
SOURCE: Amdt. 3–3, 45 FR 75666, Nov. 17,
1980, unless otherwise noted. 5.21 General.
5.23 Contents of notices.
§ 3.1 Description. 5.25 Petitions for extension of time to com-
ment.
The official seal of the Department of 5.27 Consideration of comments received.
Transportation is described as follows: 5.29 Additional rulemaking proceedings.
A white abstract triskelion figure sig- 5.31 Hearings.
nifying motion appears within a cir- 5.33 Adoption of final rules.
cular blue field. The figure is symmet- 5.35 Procedures for direct final rulemaking.
rical. The three branches of the figure APPENDIX A TO PART 5
49
EC02FE91.096</GPH>
AUTHORITY: Sec. 9, 80 Stat. 944 (49 U.S.C. retary may also allow any person to
1657). participate in additional rulemaking
SOURCE: 32 FR 10363, July 14, 1967, unless proceedings, such as informal appear-
otherwise noted. ances or hearings, held with respect to
any rule.
Subpart A—General § 5.7 Regulatory docket.
§ 5.1 Applicability. (a) Records of the Office of the Sec-
(a) This part prescribes general rule- retary of Transportation concerning
making procedures that apply to the rulemaking actions, including notices
issuance, amendment, and repeal of of proposed rule making, comments re-
rules of the Office of the Secretary of ceived in response to those notices, pe-
Transportation. It does not apply to titions for rulemaking or exemption,
rules issued by the Federal Aviation petitions for rehearing or reconsider-
Administration, Federal Highway Ad- ation, grants and denials of exemp-
ministration, Federal Railroad Admin- tions, denials of petitions for rule mak-
istration, Federal Transit Administra- ing, and final rules are maintained in
tion, Maritime Administration, Na- current docket form in the Office of
tional Highway Traffic Safety Admin- the General Counsel.
istration, Research and Special Pro- (b) Any person may examine any
grams Administration, St. Lawrence docketed material at that office and
Seaway Development Corporation, or may obtain a copy of any docketed ma-
Federal Motor Carrier Safety Adminis- terial upon payment of the prescribed
tration. fee.
(b) For the purposes of this part, Sec-
retary means the Secretary of Trans- Subpart B—Petitions for
portation or the Under Secretary of Rulemaking or Exemptions
Transportation, or any of the following
to whom the Secretary has delegated § 5.11 Filing of petitions.
authority to conduct rulemaking pro- (a) Any person may petition the Sec-
ceedings: retary to issue, amend, or repeal a rule,
(1) Any Assistant Secretary. or for a permanent or temporary ex-
(2) The General Counsel. emption from any rule.
Any of these officers may redelegate (b) Each petition filed under this sec-
that authority to the head of any office tion must:
who reports to him. (1) Be submitted in duplicate to the
(c) Records relating to rulemaking Docket Clerk, Office of the General
proceedings are available for inspec- Counsel, Department of Transpor-
tion as provided in part 7 of this sub- tation, Washington, DC 20590;
title. (2) Set forth the text or substance of
[32 FR 10363, July 14, 1967, as amended by the rule or amendment proposed, or of
Amdt. 5–2, 35 FR 5331, Mar. 31, 1970; Amdt. 5– the rule from which the exemption is
3, 36 FR 430, Jan. 13, 1971; 69 FR 4457, Jan. 30, sought, or specify the rule that the pe-
2004] titioner seeks to have repealed, as the
case may be;
§ 5.3 Initiation of rulemaking. (3) Explain the interest of the peti-
The Secretary initiates rulemaking tioner in the action requested includ-
on his own motion. However, in doing ing, in the case of a petition for an ex-
so, he may, in his discretion, consider emption, the nature and extent of the
the recommendations of other agencies relief sought and a description of the
of the United States and of other inter- persons to be covered by the exemp-
ested persons. tion;
(4) Contain any information and ar-
§ 5.5 Participation by interested per- guments available to the petitioner to
sons. support the action sought; and
Any person may participate in rule- (5) In the case of a petition for ex-
making proceedings by submitting emption, unless good cause is shown in
written information or views. The Sec- that petition, be submitted at least 60
50
days before the proposed effective date making procedure described in § 5.35 of
of the exemption. this subpart may be followed.
§ 5.13 Processing of petitions. [32 FR 10363, July 14, 1967, as amended at 69
FR 4458, Jan. 30, 2004]
(a) General. Each petition received
under § 5.11 of this part is referred to § 5.23 Contents of notices.
the head of the office responsible for (a) Each notice of proposed rule-
the subject matter of that petition. No making is published in the FEDERAL
public hearing, argument, or other pro- REGISTER, unless all persons subject to
ceeding is held directly on a petition it are named and are personally served
before its disposition under this sec- with a copy of it.
tion. (b) Each notice, whether published in
(b) Grants. If the Secretary deter- the FEDERAL REGISTER or personally
mines that the petition contains ade- served, includes:
quate justification, he initiates rule- (1) A statement of the time, place,
making action under subpart C of this and nature of the proposed rule-making
part or grants the exemption, as the proceeding;
case may be. (2) A reference to the authority under
(c) Denials. If the Secretary deter- which it is issued;
mines that the petition does not justify (3) A description of the subjects or
initiating rule-making action or grant- issues involved or the substance or
ing the exemption, he denies the peti- terms of the proposed rule;
tion. (4) A statement of the time within
(d) Notification. Whenever the Sec- which written comments must be sub-
retary determines that a petition mitted and the required number of cop-
should be granted or denied, the office ies; and
concerned and the Office of the General (5) A statement of how and to what
Counsel prepare a notice of that grant extent interested persons may partici-
or denial for issuance to the petitioner, pate in the proceeding.
and the Secretary issues it to the peti-
tioner. § 5.25 Petitions for extension of time to
comment.
Subpart C—Procedures (a) Any person may petition the Sec-
retary for an extension of time to sub-
§ 5.21 General. mit comments in response to a notice
(a) Unless the Secretary finds, for of proposed rulemaking. The petition
good cause, that notice is impractical, must be submitted in duplicate not
unnecessary, or contrary to the public later than 3 days before expiration of
interest, a notice of proposed rule mak- the time stated in the notice. The fil-
ing is issued and interested persons are ing of the petition does not automati-
invited to participate in the rule- cally extend the time for petitioner’s
making proceedings with respect to comments.
each substantive rule. (b) The Secretary grants the petition
(b) Unless the Secretary determines only if the petitioner shows a sub-
that notice and public rulemaking pro- stantive interest in the proposed rule
ceedings are necessary or desirable, in- and good cause for the extension, and if
terpretive rules, general statements of the extension is in the public interest.
policy, and rules relating to organiza- If an extension is granted, it is granted
tion, procedure, or practice are pre- as to all persons and is published in the
scribed as final without notice or other FEDERAL REGISTER.
public rulemaking proceedings.
(c) In his discretion, the Secretary § 5.27 Consideration of comments re-
may invite interested persons to par- ceived.
ticipate in the rulemaking proceedings All timely comments are considered
described in § 5.29 of this subpart. before final action is taken on a rule-
(d) For rules for which the Secretary making proposal. Late filed comments
determines that notice is unnecessary may be considered so far as possible
because no adverse public comment is without incurring additional expense
anticipated, the direct final rule- or delay.
51
§ 5.29 Additional rulemaking pro- (6) Adopt technical standards set by

ceedings. outside organizations.
The Secretary may initiate any fur- (b) The FEDERAL REGISTER document
ther rulemaking proceedings that he will state that any adverse comment or
finds necessary or desirable. For exam- notice of intent to submit adverse com-
ment must be received in writing by
ple, he may invite interested persons to
the Office of the Secretary within the
present oral arguments, participate in
specified time after the date of publica-
conferences, appear at informal hear-
tion and that, if no written adverse
ings, or participate in any other pro-
comment or written notice of intent to
ceeding.
submit adverse comment is received,
§ 5.31 Hearings. the rule will become effective a speci-
fied number of days after the date of
(a) Sections 556 and 557 of title 5, publication.
United States Code, do not apply to (c) If no written adverse comment or
hearings held under this part. As a written notice of intent to submit ad-
fact-finding proceeding, each hearing is verse comment is received by the Of-
nonadversary and there are no formal fice of the Secretary within the speci-
pleadings or adverse parties. Any rule fied time of publication in the FEDERAL
issued in a case in which a hearing is REGISTER, the Office of the Secretary
held is not necessarily based exclu- will publish a notice in the FEDERAL
sively on the record of the hearing. REGISTER indicating that no adverse
(b) The Secretary designates a rep- comment was received and confirming
resentative to conduct any hearing that the rule will become effective on
held under this part. The General the date that was indicated in the di-
Counsel designates a member of his rect final rule.
staff to serve as legal officer at the (d) If the Office of the Secretary re-
hearing. ceives any written adverse comment or
written notice of intent to submit ad-
§ 5.33 Adoption of final rules. verse comment within the specified
Final rules are prepared by rep- time of publication in the FEDERAL
resentatives of the office concerned REGISTER, a notice withdrawing the di-
and the Office of the General Counsel. rect final rule will be published in the
The rule is then submitted to the Sec- final rule section of the FEDERAL REG-
retary for his consideration. If the Sec- ISTER and, if the Office of the Secretary
retary adopts the rule, it is published decides a rulemaking is warranted, a
in the FEDERAL REGISTER, unless all notice of proposed rulemaking will be
persons subject to it are named and are published in the proposed rule section
personally served with a copy of it. of the FEDERAL REGISTER.
(e) An ‘‘adverse’’ comment for the
§ 5.35 Procedures for direct final rule- purpose of this subpart means any
making. comment that the Office of the Sec-
(a) Rules that the Secretary judges retary determines is critical of the
to be noncontroversial and unlikely to rule, suggests that the rule should not
result in adverse public comment may be adopted, or suggests a change that
be published as direct final rules. These should be made in the rule. A comment
include noncontroversial rules that: suggesting that the policy or require-
(1) Affect internal procedures of the ments of the rule should or should not
Office of the Secretary, such as filing also be extended to other Departmental
requirements and rules governing in- programs outside the scope of the rule
spection and copying of documents, is not adverse.
(2) Are nonsubstantive clarifications [69 FR 4458, Jan. 30, 2004]
or corrections to existing rules,
(3) Update existing forms, APPENDIX A TO PART 5
(4) Make minor changes in the sub-
Pursuant to § 5.1(b), the following officials
stantive rules regarding statistics and of the Office of the Secretary of Transpor-
reporting requirements, tation are authorized to conduct rulemaking
(5) Make changes to the rules imple- proceedings under this part, as specified in
menting the Privacy Act, and this appendix:
52
(1) The General Counsel is authorized to part), provides for the award of attor-
conduct all rule-making proceedings, except ney fees and other expenses to eligible
the issuance of final rules, under the Act of individuals and entities who are parties
March 19, 1918, ch. 24, as amended (15 U.S.C.
to certain administrative proceedings
261–264); the Uniform Time Act of 1966 (80
Stat. 107, 15 U.S.C. 260–267); and section (called ‘‘adversary adjudications’’) be-
6(e)(5) of the Department of Transportation fore government agencies, such as the
Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)). Department of Transportation or any
(2) The General Counsel is authorized to of its operating administrations. The
determine the practicability of applying the rules in this part describe the parties
standard time of any standard time zone to eligible for awards and the proceedings
the movements of any common carrier en- that are covered. They also explain
gaged in interstate or foreign commerce,
how to apply for awards, and the proce-
and, under section 2 of the Act of March 19,
1918, ch. 24, as amended (15 U.S.C. 262), to dures and standards that this agency
issue operating exceptions in any case in will use to make them. The use of the
which he determines that it is impractical to term ‘‘Department’’, in this rule, will
apply the standard time. be understood to mean the Department
[Amdt. 5–1, 32 FR 11473, Aug. 9, 1967] of Transportation or any of its oper-
ating administrations, unless other-
wise specified. The term ‘‘agency coun-
PART 6—IMPLEMENTATION OF sel’’ will be understood to mean coun-
EQUAL ACCESS TO JUSTICE ACT sel for the Department of Transpor-
IN AGENCY PROCEEDINGS tation or any of its operating adminis-
trations.
Subpart A—General Provisions
[48 FR 1070, Jan. 10, 1983, as amended at 62
Sec. FR 19233, Apr. 21, 1997]
6.1 Purpose of these rules.
6.3 Applicability. § 6.3 Applicability.
6.5 Proceedings covered.
Section 6.9(a) applies to any adver-
6.7 Eligibility of applications.
6.9 Standards for awards. sary adjudication pending before the
6.11 Allowable fees and expenses. Department on or after October 1, 1981.
6.13 Delegations of authority. In addition, applicants for awards must
also meet the standards of § 6.9(b) for
Subpart B—Information Required from any adversary adjudication commenced
Applicants on or after March 29, 1996.
6.17 Contents of application. [62 FR 19233, Apr. 21, 1997]
6.19 Net worth exhibit.
6.21 Documentation of fees and expenses. § 6.5 Proceedings covered.
Subpart C—Procedures for Considering (a) The Act applies to adversary adju-
Applications dications conducted by the Department
of Transportation. These are adjudica-
6.23 Filing and service of documents. tions under 5 U.S.C. 554 in which the
6.25 Answer to application. position of the Department is rep-
6.27 Comments by other parties. resented by an attorney or other rep-
6.29 Settlement. resentative who enters an appearance
6.31 Further proceedings.
and participates in the proceeding.
6.33 Decision.
6.35 Agency review. Coverage of the Act begins at designa-
6.37 Judicial review. tion of a proceeding or issuance of a
6.39 Payment of award. charge sheet. Any proceeding in which
the Department may prescribe or es-
AUTHORITY: 5 U.S.C. 504; 28 U.S.C. 2412.
tablish a lawful present or future rate
SOURCE: 48 FR 1070, Jan. 10, 1983, unless is not covered by the Act. Proceedings
otherwise noted. to grant or renew licenses are also ex-
cluded, but proceedings to modify, sus-
Subpart A—General Provisions pend, or revoke licenses are covered if
they are otherwise ‘‘adversary adju-
§ 6.1 Purpose of these rules. dications.’’ For the Department of
The Equal Access to Justice Act, 5 Transportation, the types of pro-
U.S.C. 504 (called ‘‘the Act’’ in this ceedings covered include, but may not
53
be limited to: Coast Guard suspension of not more than $7 million, including
or revocation of licenses, certificates both personal and business interests,
or documents under 46 U.S.C. 7701 et and not more than 500 employees.
seq.; Coast Guard class II civil penalty (3) A charitable or other tax-exempt
proceedings under the Clean Water Act, organization as described in section
33 U.S.C. 1321(b)(6)(B)(ii); Coast Guard 501(c)(3) of the Internal Revenue Code
class II penalty proceedings under the (26 U.S.C. 501(c)(3)) with not more than
Comprehensive Environmental Re- 500 employees;
sponse, Compensation and Liability (4) A cooperative association as de-
Act, 42 U.S.C. 9609(b); suspension and fined in section 15(a) of the Agricul-
revocation of Certificates of Registry tural Marketing Act (12 U.S.C. 1141j(a))
proceedings for Great Lakes Pilots pur- with a net worth of not more than $5
suant to 46 CFR Part 401; National million and not more than 500 employ-
Highway Traffic Safety Administration
ees.
(NHTSA) automotive fuel economy en-
forcement under 49 U.S.C. Chapter 329 (5) Any other partnership, corpora-
(49 CFR Part 511); Federal Highway Ad- tion, association, or public or private
ministration (FHWA) enforcement of organization with a net worth of not
motor carrier safety regulations under more than $7 million and not more
49 U.S.C. 521 and 5123 (49 CFR 386); the than 500 employees.
Department’s aviation economic en- (6) For the purposes of § 6.9(b), eligi-
forcement proceedings conducted by its ble applicants include small entities as
Office of Aviation Enforcement and defined in 5 U.S.C. 601.
Proceedings pursuant to 49 U.S.C. Sub- (c) For the purpose of eligibility, the
title VII, 14 CFR Chapter II. Also cov- net worth and number of employees of
ered are any appeal of a decision made an applicant shall be determined as of
pursuant to section 6 of the Contract the date the proceeding was des-
Disputes Act of 1978 (41 U.S.C. 605) be- ignated.
fore an agency board of contract ap- (d) An applicant who owns an unin-
peals as provided in section 8 of that corporated business will be considered
Act (41 U.S.C. 607), any hearing con- an ‘‘individual’’ rather than a ‘‘sole
ducted under Chapter 38 of title 31, and owner of an unincorporated business’’
the Religious Freedom Restoration Act if the issues on which the applicant
of 1993, 42 U.S.C. 2000bb et seq. prevails are related primarily to per-
(b) If a proceeding includes both mat- sonal interests rather than to business
ters covered by the Act and matters interests.
specifically excluded from coverage, (e) The number of employees of an
any award made will include only fees applicant includes all persons who reg-
and expenses related to covered issues. ularly perform services for remunera-
[48 FR 1070, Jan. 10, 1983, as amended at 62 tion for the applicant, under the appli-
FR 19233, Apr. 21, 1997] cant’s direction and control. Part-time
employees shall be included on a pro-
§ 6.7 Eligibility of applications. portional basis.
(a) To be eligible for an award of at- (f) The net worth and number of em-
torney fees and other expenses under ployees of the applicant and all of its
the Act, the applicant must be a party affiliates shall be aggregated to deter-
to an adversary adjudication for which mine eligibility. Any individual, cor-
it seeks an award. The term ‘‘party’’ is poration or other entity that directly
defined in 5 U.S.C. 504(b)(1)(B). The ap- or indirectly controls or owns a major-
plicant must show that it meets all ity of the voting shares or other inter-
conditions of eligibility set out in this est of the applicant, or any corporation
subpart and in paragraph (b) of this or other entity of which the applicant
section. directly or indirectly owns or controls
(b) The types of eligible applicants a majority of the voting shares or
are as follows: other interest, will be considered an af-
(1) An individual with a net worth of filiate for purposes of this part, unless
not more than $2 million; the administrative law judge deter-
(2) The sole owner of an unincor- mines that such treatment would be
porated business who has a net worth unjust and contrary to the purposes of
54
the Act in light of the actual relation- when compared with such decision,
ship between the affiliated entities. In under the facts and circumstances of
addition, the administrative law judge the case, the adjudicative officer shall
may determine that financial relation- award to an eligible applicant party
ships of the applicant other than those the fees and expenses related to defend-
described in this paragraph constitute ing against the excessive demand, un-
special circumstances that would make less the applicant party has committed
an award unjust. a willful violation of law or otherwise
(g) An applicant that participates in acted in bad faith, or special cir-
a proceeding primarily on behalf of one cumstances make an award unjust.
or more other persons or entities that Fees and expenses awarded under this
would be ineligible is not itself eligible paragraph shall be paid only as a con-
for an award. sequence of appropriations provided in
(h) An applicant who appears pro se advance. As used in this section, ‘‘de-
in a proceeding is ineligible for award mand’’ means the express demand of
of attorney fees. However, eligibility the Department which led to the adver-
for other expenses is not affected by sary adjudication, but does not include
pro se representation. a recitation by the Department of the
[48 FR 1070, Jan. 10, 1983, as amended at 62 maximum statutory penalty
FR 19234, Apr. 21, 1997] (i) In the administrative complaint,
or
§ 6.9 Standards for awards. (ii) Elsewhere when accompanied by
(a) An eligible applicant may receive an express demand for a lesser amount.
an award for fees and expenses incurred (c) The decision of the Department
by that party in connection with a de- on the application for fees and other
cision in favor of the applicant in a expenses shall be the final administra-
proceeding covered by this Part, unless tive decision under this section.
the position of the Department over (d) An award will be reduced or de-
which the applicant has prevailed was nied if the applicant has unduly or un-
substantially justified or special cir- reasonably protracted the proceeding.
cumstances make the award sought un-
just. The burden of proof that an award [62 FR 19234, Apr. 21, 1997]
should not be made to an eligible appli-
§ 6.11 Allowable fees and expenses.
cant is on the Department where it has
initiated the proceeding. No presump- (a) Awards will be based on rates cus-
tion arises that the Department’s posi- tomarily charged by persons engaged
tion was not substantially justified in the business of acting as attorneys,
simply because the Department did not agents or expert witnesses.
prevail. Whether or not the position of (b) No award for the fee of an attor-
the Department was substantially jus- ney or agent under these rules may ex-
tified shall be determined on the basis ceed $125.00 per hour. This amount
of the administrative record, as a shall include all other expenses in-
whole, in the adversary adjudication curred by the attorney or agent in con-
for which fees and other expenses are nection with the case. No award to
sought. The ‘‘position of the Depart- compensate an expert witness may ex-
ment’’ means, in addition to the posi- ceed the highest market rate at which
tion taken by the agency in the adver- the Department pays expert witnesses,
sary adjudication, the action or failure or $24.09 per hour, whichever is less.
to act by the Department upon which (c) In determining the reasonableness
the adversary adjudication may be of the fee sought for an attorney, agent
based. or expert witness, the administrative
(b) In the context of a Departmental law judge shall consider the following:
proceeding to enforce a party’s compli- (1) If the attorney, agent or witness
ance with a statutory or regulatory re- is in private practice, his or her cus-
quirement, if the demand by the De- tomary fee for similar services, or, if
partment is substantially in excess of an employee of the applicant, the fully
the amount awarded to the government allocated cost of the services;
pursuant to the decision of the adju- (2) The prevailing rate for similar
dicative officer and is unreasonable services in the community in which the
55
attorney, agent or witness ordinarily worth does not exceed $1 million (if an
performs services; individual) or $5 million (for all other
(3) The time actually spent in the applicants, including their affiliates).
representation of the applicant; However, an applicant may omit this
(4) The time reasonably spent in light statement if:
of the difficulty or complexity of the (1) It attaches a copy of a ruling by
issues in the proceeding; and the Internal Revenue Service that it
(5) Such other factors as may bear on qualifies as an organization described
the value of the services provided. in section 501(c)(3) of the Internal Rev-
(d) The reasonable cost of any study, enue Code (26 U.S.C. 501(c)(3)) or, in the
analysis, engineering report, test, case of a tax-exempt organization not
project or similar matter prepared on required to obtain a ruling from the In-
behalf of a party may be awarded, to ternal Revenue Service on its exempt
the extent that the charge for the serv- status, a statement that describes the
ice does not exceed the prevailing rate basis for the applicant’s belief that it
for similar services, and the study or qualifies under such section; or
other matter was necessary for prepa- (2) It states that it is a cooperative
ration of the applicant’s case. association as defined in section 15(a)
(e) Fees may be awarded only for of the Agricultural Marketing Act (12
work performed after designation of a U.S.C. 114j(a)).
proceeding. (c) The application shall state the
amount of fees and expenses for which
[48 FR 1070, Jan. 10, 1983, as amended at 62
an award is sought.
FR 19234, Apr. 21, 1997]
(d) The application may also include
§ 6.13 Delegations of authority. any other matters that the applicant
wishes this agency to consider in deter-
The Secretary of Transportation del- mining whether and in what amount an
egates to the head of each operating award should be made.
administration of this Department the (e) The application shall be signed by
authority to take final action, other the applicant or an authorized officer
than rulemaking, on matters per- or attorney of the applicant. It shall
taining to the Act in actions that re- also contain or be accompanied by a
quire section 554 proceedings. The head written verification under oath or
of each operating administration may under penalty of perjury that the infor-
redelegate this authority. mation provided in the application is
true and correct.
Subpart B—Information Required (f) If the applicant is a partnership,
from Applicants corporation, association, or organiza-
tion, or a sole owner of an unincor-
§ 6.17 Contents of application. porated business, the application shall
(a) An application for an award of state that it did not have more than 500
fees and expenses under the Act shall employees at the time the proceeding
identify the applicant and the pro- was initiated, giving the number of its
ceeding for which an award is sought. employees and describing briefly the
The application shall show that the ap- type and purpose of its organization or
plicant has prevailed and identify the business.
position of an agency or agencies in the
proceeding that the applicant alleges § 6.19 Net worth exhibit.
was not substantially justified. Unless (a) Each applicant except a qualified
the applicant is an individual, the ap- tax-exempt organization or cooperative
plication shall also state that it did association must provide with its ap-
not have more than 500 employees at plication a detailed exhibit showing
the time the proceeding was initiated, the net worth of the applicant and any
giving the number of employees of the affiliates (as defined in this part) when
applicant and describing briefly the the proceeding was designated. If any
type and purpose of its organization or individual, corporation, or other entity
business. directly or indirectly controls or owns
(b) The application shall also include a majority of the voting shares or
a statement that the applicant’s net other interest of the applicant, or if
56
the applicant directly or indirectly vide information about two attorneys

owns or controls a majority of the vot- or agents with similar experience, who
ing shares or other interest of any cor- perform similar work, stating their
poration or other entity, the exhibit hourly rate.
must include a showing of the net (c) The documentation shall also in-
worth of all such affiliates or of the ap- clude a description of any expenses for
plicant including the affiliates. The ex- which reimbursement is sought and a
hibit may be in any form convenient to statement of the amounts paid and
the applicant that provides full disclo- payable by the applicant or by any
sure of the applicant’s and its affili- other person or entity for the services
ates’ assets and liabilities and is suffi- provided.
cient to determine whether the appli- (d) The administrative law judge may
cant qualifies under the standards in require the applicant to provide vouch-
this subpart. The administrative law ers, receipts, or other substantiation
judge may require an applicant to file for any expenses claimed.
additional information to determine
(e) The administrative law judge
its eligibility for an award.
may, within his or her discretion,
(b) The net worth exhibit shall de-
make a determination as to whether a
scribe any transfers of assets from, or
study, conducted by the applicant, was
obligations incurred by, the applicant
necessary to the preparation of the ap-
or any affiliate, occurring in the one-
plicant’s case.
year period prior to the date on which
the proceeding was initiated, that re-
duced the net worth of the applicant Subpart C—Procedures for
and its affiliates below the applicable Considering Applications
net worth ceiling. If there were no such
transactions, the applicant shall so § 6.23 Filing and service of documents.
state. Any application for an award or
(c) The net worth exhibit shall be in- other pleading or document related to
cluded in the public record of the pro- an application shall be filed and served
ceeding. on all parties to the proceeding in the
same manner as other pleadings in the
§ 6.21 Documentation of fees and ex-
penses. proceeding.
(a) The application shall be accom- § 6.25 Answer to application.
panied by full documentation of the
fees and expenses, including the cost of (a) Within 30 calendar days after
any study, analysis, engineering re- service of an application, the agency
port, test, project or similar matter, counsel may file an answer to the ap-
for which an award is sought. plication. Unless the agency counsel
(b) The documentation shall include requests an extension of time for filing
an affidavit from any attorney, agent, or files a statement of intent to nego-
or expert witness representing or ap- tiate under paragraph (b) of this sec-
pearing in behalf of the party, stating tion, failure to file an answer within
the actual time expended and the rate the 30-day period may be treated as a
at which fees and other expenses were consent to the award request.
computed and describing the specific (b) If agency counsel and applicant
services performed. believe that they can reach a settle-
(1) The affidavit shall state the serv- ment concerning the award, the agency
ices performed. In order to establish counsel may file a statement of intent
the hourly rate, the affidavit shall to negotiate. The filing of such a state-
state the hourly rate which is billed ment shall extend the time for filing an
and paid by the majority of clients dur- answer an additional 30 days.
ing the relevant time periods. (c) The answer shall explain in detail
(2) If no hourly rate is paid by the any objections to the award requested
majority of clients because, for in- and identify the facts relied on in sup-
stance, the attorney or agent rep- port of the Department’s position. If
resents most clients on a contingency the answer is based on any alleged
basis, the attorney or agent shall pro- facts not already in the record of the
57
proceeding, the Department shall in- § 6.33 Decision.

clude with the answer either sup-
The administrative law judge shall
porting affidavits or a request for fur-
issue an initial decision on the applica-
ther proceedings under § 6.3.
tion as soon as possible after comple-
[48 FR 1070, Jan. 10, 1983, as amended at 62 tion of proceedings on the application.
FR 19234, Apr. 21, 1997] The decision shall also include, if at
issue, findings on whether the Depart-
§ 6.27 Comments by other parties. ment’s position was substantially jus-
Any party to a proceeding, other tified, whether the applicant unduly
than the applicant and the Department protracted the proceedings, or whether
may file comments on an application special circumstances make an award
within 30 days after it is served or on unjust. If the applicant has sought an
an answer within 15 days after it is award against more than one agency,
served. A commenting party may not the decision shall allocate responsi-
participate further in proceedings on bility for payment or any award made
the application. among the agencies, and shall explain
the reasons for the allocation made.
§ 6.29 Settlement.
The applicant and agency counsel § 6.35 Agency review.
may agree on a proposed settlement of Where Department review of the un-
the award before final action on the ap- derlying decision is permitted, either
plication, either in connection with a the applicant or agency counsel, may
settlement of the underlying pro- seek review of the initial decision on
ceeding, or after the underlying pro- the fee application, or the Department
ceeding has been concluded, in accord- may decide to review the decision on
ance with the agency’s standard settle- its own initiative. If neither the appli-
ment procedure. If a prevailing party cant nor the agency counsel seeks re-
and the agency counsel agree on a pro- view within 30 days after the decision
posed settlement of an award before an is issued, it shall become final.
application has been filed the applica-
tion shall be filed with the proposed § 6.37 Judicial review.
settlement. Judicial review of final agency deci-
§ 6.31 Further proceedings. sions on awards may be sought as pro-
vided in 5 U.S.C. 504(c)(2).
(a) Ordinarily, the determination of
an award will be made on the basis of § 6.39 Payment of award.
the written record. However, on re- An applicant seeking payment of an
quest of either the applicant or agency award from the Department of Trans-
counsel, or on his or her own initiative, portation or any of its operating ad-
the administrative law judge may ministrations under this part shall sub-
order further proceedings, such as an
mit a copy of the Department of Trans-
informal conference, oral argument,
portation’s or any of its operating ad-
additional written submissions or an
ministration’s final decisions granting
evidentiary hearing.
the award, accompanied by a state-
Such further proceedings shall be held ment that the applicant will not seek
only when necessary for full and fair review of the decision in the United
resolution of the issues arising from States courts. The copy of the decision
the application, and shall be conducted and the statement should be submitted
as promptly as possible. to the head of the affected operating
(b) A request that the administrative administration or the Secretary of
law judge order further proceedings Transportation, where the Department
under this section shall specifically of Transportation, Office of the Sec-
identify the information sought or the retary, has initiated the proceedings.
disputed issues and shall explain why
the additional proceedings are nec-
essary to resolve the issues.
58
PART 7—PUBLIC AVAILABILITY OF Subpart A—General Provisions

INFORMATION
§ 7.1 General.
Subpart A—General Provisions (a) This part implements 5 U.S.C. 552,
and prescribes rules governing the
Sec. availability to the public of DOT
7.1 General. records. Many documents are made
7.2 Definitions.
available to the public for inspection
Subpart B—Information Required To Be and copying through DOT’s Primary
Made Public by DOT Electronic Access Facility and public
record unit locations that are discussed
7.3 Publication in the FEDERAL REGISTER. in subpart B of this part, which con-
7.4 Publication required. tains the DOT regulations concerning
7.5 Availability of opinions, orders, staff the availability to the public of opin-
manuals, statements of policy, and inter- ions issued in the adjudication of cases,
pretations and indices. policy issuances, administrative manu-
7.6 Deletion of identifying detail. als, and other information made avail-
7.7 Access to materials and indices.
able to the public, without need for a
7.8 Copies.
7.9 Protection of records.
specific request.
7.10 Public records. (b) Subpart C of this part describes
the records that are not required to be
Subpart C—Availability of Reasonably De- disclosed on DOT’s own action under
scribed Records Under the Freedom of this part, but that may be available
Information Act upon request under FOIA.
(c) Indices are maintained to reflect
7.11 Applicability. all records subject to subpart B of this
7.12 Administration of subpart. part, and are available for public in-
7.13 Records available. spection and copying as provided in
7.14 Requests for records.
subpart B.
7.15 Contacts for records requested under
the FOIA. § 7.2 Definitions.
7.16 Requests for records of concern to more
than one government organization. Unless the context requires other-
7.17 Consultation with submitters of com- wise, the following definitions apply in
mercial and financial information. this part:
Act and FOIA mean the Freedom of
Subpart D—Procedures for Appealing De- Information Act, 5 U.S.C. 552, as
cisions Not To Disclose Records and/or amended.
Waive Fees Administrator means the head of each
7.21 General.
component of DOT and includes the
Under Secretary for Security, the Com-
Subpart E—Time Limits mandant of the Coast Guard, the In-
spector General, and the Director of
7.31 Initial determinations. the Bureau of Transportation Statis-
7.32 Final determinations. tics.
7.33 Extension. Concurrence means that the approval
of the person being consulted is re-
Subpart F—Fees
quired in order for the subject action
7.41 General. to be taken.
7.42 Payment of fees. Consultation means that the approval
7.43 Fee schedule. of the person being consulted is not re-
7.44 Services performed without charge or quired in order for the subject action
at a reduced charge. to be taken.
7.45 Transcripts. Department means the Department of
7.46 Alternative sources of information.
Transportation, including the Office of
AUTHORITY: 5 U.S.C. 552; 31 U.S.C. 9701; 49 the Secretary, the Office of Inspector
U.S.C. 322; E.O. 12600, 3 CFR, 1987 Comp., p. General, and the following DOT compo-
235. nents, all of which may be referred to
SOURCE: Amdt. 1, 63 FR 38331, July 16, 1998, as DOT components. Means of con-
unless otherwise noted. tacting each of these DOT components
59
appear in § 7.15. This definition specifi- Subpart B—Information Required

cally excludes the Surface Transpor- To Be Made Public by DOT
tation Board, which has its own FOIA
regulations (49 CFR Part 1001): § 7.3 Publication in the Federal Reg-
(1) United States Coast Guard, ister.
(2) Federal Aviation Administration, This section implements 5 U.S.C.
(3) Federal Highway Administration, 552(a)(1), and prescribes rules governing
(4) Federal Railroad Administration, publication in the FEDERAL REGISTER
(5) National Highway Traffic Safety of the following:
Administration, (a) Descriptions of DOT’s organiza-
(6) Federal Transit Administration, tion, including its DOT components
(7) Saint Lawrence Seaway Develop- and the established places at which,
ment Corporation, the officers from whom, and the meth-
(8) Maritime Administration, ods by which, the public may secure in-
(9) Research and Special Programs formation and make submittals or ob-
Administration, and tain decisions;
(10) Bureau of Transportation Statis- (b) Statements of the general course
tics. and methods by which DOT’s functions
(11) Transportation Security Admin- are channeled and determined, includ-
istration. ing the nature and requirements of all
Primary Electronic Access Facility formal and informal procedures avail-
means the electronic docket facility in able;
the DOT Headquarters Building, 400 7th (c) Rules of procedure, descriptions of
Street, S.W., Washington, D.C. 20590. forms available or the places at which
Reading room records are those forms may be obtained, and instruc-
records required to be made available tions as to the scope and contents of
to the public under 5 U.S.C. 552(a)(2) as all papers, reports, or examinations;
described in § 7.5 of Subpart B of this (d) Substantive rules of general ap-
part. These records are made available plicability adopted as authorized by
through DOT’s Primary Electronic Ac- law and statements of general policy or
cess Facility. Other records may also interpretations of general applicability
be made available at DOT’s discretion formulated and adopted by DOT; and
at DOT inspection facilities, including (e) Each amendment, revision, or re-
DOT’s Primary Electronic Access Fa- peal of any material listed in para-
cility. graphs (a) through (d) of this section.
Record includes any writing, drawing,
map, recording, tape, film, photograph, § 7.4 Publication required.
or other documentary material by (a) General. The material described in
which information is preserved. The § 7.3 will be published in the FEDERAL
term also includes any such documen- REGISTER. For the purposes of this
tary material stored by computer. paragraph, material that will reason-
Responsible DOT official means the ably be available to the class of persons
head of the DOT component concerned, affected by it will be considered to be
or the General Counsel or the Inspector published in the FEDERAL REGISTER if
General, as the case may be, or the des- it has been incorporated by reference
ignee of any of them, authorized to with the approval of the Director of the
take an action under this part. Federal Register.
Secretary means the Secretary of (b) Effect of nonpublication. Except to
Transportation or any person to whom the extent that he/she has actual and
the Secretary has delegated authority timely notice of the terms thereof, a
in the matter concerned. person may not in any manner be re-
[Amdt. 1, 63 FR 38331, July 16, 1998, as amend-
quired to resort to, or be adversely af-
ed at 67 FR 54746, Aug. 26, 2002] fected by, any procedure or matter re-
quired to be published in the FEDERAL
REGISTER, but not so published.
60
§ 7.5 Availability of opinions, orders, versely unless the person to whose det-
staff manuals, statements of policy, riment it is relied on, used, or cited has
and interpretations and indices. had actual timely notice of the mate-
(a) This section implements 5 U.S.C. rial.
552(a)(2). It prescribes the rules gov- (c) This section does not apply to ma-
erning the availability for public in- terial that is published in the FEDERAL
spection and copying of the following REGISTER or covered by subpart C of
reading room materials: this part.
(1) Any final opinion (including a
concurring or dissenting opinion) or § 7.6 Deletion of identifying detail.
order made in the adjudication of a
Whenever it is determined to be nec-
case.
(2) Any policy or interpretation that essary to prevent a clearly unwar-
has been adopted under DOT authority, ranted invasion of personal privacy,
including any policy or interpretation identifying details will be deleted from
concerning a particular factual situa- any record covered by this subpart that
tion, if that policy or interpretation is published or made available for in-
can reasonably be expected to have spection. Whenever it is determined to
precedential value in any case involv- be necessary to prevent the disclosure
ing a member of the public in a similar of information required or authorized
situation. to be withheld by another Federal stat-
(3) Any administrative staff manual ute, such information shall be deleted
or instruction to staff that affects any from any record covered by this sub-
member of the public, including the part that is published or made avail-
prescribing of any standard, procedure, able for inspection. A full explanation
or policy that, when implemented, re- of the justification for the deletion will
quires or limits any action of any accompany the record published or
member of the public or prescribes the made available for inspection.
manner of performance of any activity
by any member of the public. However, § 7.7 Access to materials and indices.
this does not include staff manuals or
instructions to staff concerning inter- (a) Except as provided in paragraph
nal operating rules, practices, guide- (b) of this section, material listed in
lines, and procedures for DOT inspec- § 7.5 will be made available for inspec-
tors, investigators, law enforcement of- tion and copying to any member of the
ficers, examiners, auditors, and nego- public at DOT document inspection fa-
tiators and other information devel- cilities. It has been determined that it
oped predominantly for internal use, is unnecessary and impracticable to
the release of which could significantly publish the index of materials in the
risk circumvention of agency regula- FEDERAL REGISTER. Information as to
tions or statutes. the kinds of materials available at
(4) Copies of all records, regardless of each facility may be obtained from the
form or format, that have been re- facility or the headquarters of the DOT
leased to any person under subpart C of component of which it is a part.
this part and which, because of the na- (b) The material listed in § 7.5 that is
ture of their subject matter, a DOT published and offered for sale will be
component determines have become or indexed, but is not required to be kept
are likely to become the subject of sub- available for public inspection. When-
sequent requests for substantially the ever practicable, however, it will be
same records.
made available for public inspection at
(5) A general index of the records list-
the appropriate DOT reading room.
ed in this paragraph.
(b) Any material listed in paragraph (c) Each DOT component will also
(a) of this section that is not made make the reading room records identi-
available for public inspection and fied in section 7.5(a) that are created
copying, or that is not indexed as re- by DOT on or after November 1, 1996,
quired by § 7.7, may not be cited, relied available electronically. This includes
on, or used as precedent by DOT to af- indices of its reading room records as
fect any member of the public ad- required by law after December 1, 1999.
61
§ 7.8 Copies Subpart C—Availability of Reason-

Copies of any material covered by ably Described Records
this subpart that is not published and Under the Freedom of Infor-
offered for sale may be ordered, upon mation Act
payment of the appropriate fee, from
the Docket Offices listed in § 7.10. Cop- § 7.11 Applicability.
ies will be certified upon request and
(a) This subpart implements 5 U.S.C
payment of the fee prescribed in
552(a)(3), and prescribes the regulations
§ 7.43(f).
governing public inspection and copy-
§ 7.9 Protection of records. ing of reasonably described records
under FOIA.
(a) Records made available for in-
spection and copying may not be re- (b) This subpart does not apply to:
moved, altered, destroyed, or muti- (1) Records published in the FEDERAL
lated. REGISTER, opinions in the adjudication
(b) 18 U.S.C. 641 provides for criminal of cases, statements of policy and in-
penalties for embezzlement or theft of terpretations, and administrative staff
government records. manuals that have been published or
(c) 18 U.S.C. 2071 provides for crimi- made available under subpart B of this
nal penalties for the willful and unlaw- part.
ful concealment, mutilation or de- (2) Records or information compiled
struction of, or the attempt to conceal, for law enforcement purposes and cov-
mutilate, or destroy, government ered by the disclosure exemption de-
records. scribed in § 7.13(c)(7) if—
(i) The investigation or proceeding
§ 7.10 Public records. involves a possible violation of crimi-
Publicly available records are lo- nal law; and
cated in DOT’s Primary Electronic Ac- (ii) There is reason to believe that—
cess Facility at 400 7th Street, S.W., (A) The subject of the investigation
Washington, D.C. 20590. or proceeding is not aware of its pend-
(a) The Primary Electronic Access ency, and
Facility maintains materials for the (B) Disclosure of the existence of the
Office of the Secretary, including
records could reasonably be expected to
former Civil Aeronautics Board mate-
interfere with enforcement pro-
rial, and materials for the DOT compo-
ceedings.
nents. This facility is located at Plaza
Level 401, and the hours of operation (3) Informant records maintained by
are 10:00–17:00. a criminal law enforcement component
(b) Certain DOT components also of DOT under an informant’s name or
maintain public record units at re- personal identifier, if requested by a
gional offices and at the offices of the third party according to the inform-
Commandant and District Commanders ant’s name or personal identifier, un-
of the United States Coast Guard. less the informant’s status as an in-
These facilities are open to the public formant has been officially confirmed.
Monday through Friday except Federal
holidays, during regular working § 7.12 Administration of subpart.
hours. The Saint Lawrence Seaway De- Authority to administer this subpart
velopment Corporation has facilities at and to issue determinations with re-
180 Andrews Street, Massena, New spect to initial requests is delegated as
York 13662–0520. follows:
(c) Operating Administrations may (a) To the General Counsel for the
have separate facilities for manual records of the Office of the Secretary
records. Additional information on the
other than the Office of Inspector Gen-
location and hours of operations for
eral.
Docket Offices and inspection facilities
can be obtained through DOT’s Pri- (b) To the Inspector General for
mary Electronic Access Facility, at records of the Office of Inspector Gen-
(202) 366–9322. eral.
62
(c) To the Administrator of each DOT not be available by law to a party

component, who may redelegate to of- other than an agency in litigation with
ficers of that administration the au- the agency;
thority to administer this part in con- (6) Personnel and medical files and
nection with defined groups of records. similar files the disclosure of which
However, each Administrator may re- would constitute a clearly unwarranted
delegate the duties under subpart D of invasion of personal privacy;
this part to consider appeals of initial (7) Records or information compiled
denials of requests for records only to for law enforcement purposes, but only
his or her deputy or to not more than to the extent that the production of
one other officer who reports directly such law enforcement records or infor-
to the Administrator and who is lo- mation—
cated at the headquarters of that DOT (i) Could reasonably be expected to
component. interfere with enforcement pro-
ceedings,
§ 7.13 Records available. (ii) Would deprive a person of a right
(a) Policy. It is DOT policy to make to a fair or an impartial adjudication,
its records available to the public to (iii) Could reasonably be expected to
the greatest extent possible, in keeping constitute an unwarranted invasion of
with the spirit of FOIA. This includes personal privacy,
providing reasonably segregable infor- (iv) Could reasonably be expected to
mation from documents that contain disclose the identity of a confidential
information that may be withheld. source, including a State, local, Tribal,
(b) Statutory disclosure requirement. or foreign agency or authority or any
FOIA requires that DOT, on a request private institution that furnished in-
from a member of the public submitted formation on a confidential basis, and,
in accordance with this subpart, make in the case of a record or information
requested records available for inspec- compiled by a criminal law enforce-
tion and copying. ment authority in the course of a
(c) Statutory exemptions. Exempted criminal investigation, or by an agency
from FOIA’s statutory disclosure re- conducting a lawful national security
quirement are matters that are: intelligence investigation, information
(1)(i) Specifically authorized under furnished by a confidential source,
criteria established by Executive Order (v) Would disclose techniques and
to be kept secret in the interest of na- procedures for law enforcement inves-
tional defense or foreign policy, and tigations or prosecutions or would dis-
(ii) In fact properly classified pursu- close guidelines for law enforcement
ant to such Executive order; investigations or prosecutions if such
(2) Related solely to the internal per- disclosure could reasonably be ex-
sonnel rules and practices of an agen- pected to risk circumvention of the
cy; law, or
(3) Specifically exempted from man- (vi) Could reasonably be expected to
datory disclosure by statute (other endanger the life or physical safety of
than the Privacy Act or the Govern- any individual;
ment in the Sunshine Act), provided (8) Contained in or related to exam-
that such statute— ination, operating, or condition reports
(i) Requires that the matters be with- prepared by, on behalf of, or for the use
held from the public in such a manner of an agency responsible for the regula-
as to leave not any discretion on the tion or supervision of financial institu-
issue, or tions; or
(ii) Establishes particular criteria for (9) Geological and geophysical infor-
withholding or refers to particular cri- mation and data, including maps, con-
teria for withholding or refers to par- cerning wells.
ticular types of matters to be withheld; (d) Deleted information. The amount of
(4) Trade secrets and commercial or information deleted from frequently-
financial information obtained from a requested electronic records that are
person and privileged or confidential; available in a public reading room will
(5) Inter-agency or intra-agency be indicated on the released portion of
memorandums or letters that would the record, unless doing so would harm
63
an interest protected by the exemption of this claim (see subpart F of this part
concerned. If technically feasible, the for fees and fee waiver requirements),
amount of information deleted will be (ii) State the maximum amount of
indicated at the place in the record fees that the requestor is willing to pay
where the deletion is made. or include a request for a fee waiver,
and
§ 7.14 Requests for records. (iii) A request seeking a fee waiver
(a) Each person desiring access to or shall, to the extent possible, address
a copy of a record covered by this sub- why the requestor believes that the cri-
part shall comply with the following teria for fee waivers set out in § 7.44(f)
provisions: are met.
(1) A written request must be made (3) Requesters are advised that the
for the record. time for responding to requests set
forth in subpart E will not begin to
(2) Such request should indicate that
run—
it is being made under FOIA.
(i) If a requestor has not sufficiently
(3) The envelope in which a mailed
identified the fee category applicable
request is sent should be prominently
to the request,
marked: ‘‘FOIA.’’
(ii) If a requestor has not stated a
(4) The request should be addressed willingness to pay fees as high as an-
to the appropriate office as set forth in ticipated by DOT,
§ 7.15. (iii) If a fee waiver request is denied
(5) The request should state the for- and the requestor has not included an
mat (e.g., paper, microfiche, computer alternative statement of willingness to
diskette, etc.) in which the information pay fees as high as anticipated by DOT,
is sought, if the requestor has a pref- or
erence. (iv) If a fee waiver request does not
(b) If the requirements of paragraph address fee waiver criteria.
(a) of this section are not met, treat- (d) Creation of records. A request may
ment of the request will be at the dis- seek only records that are in existence
cretion of the agency. The twenty-day at the time the request is received. A
limit for responding to requests, de- request may not seek records that
scribed in § 7.31, will not start to run come into existence after the date on
until the request has been identified, or which it is received and may not re-
would have been identified with the ex- quire that new records be created in re-
ercise of due diligence, by an employee sponse to the request by, for example,
of DOT as a request pursuant to FOIA combining or compiling selected items
and has been received by the office to from manual files, preparing a new
which it should have been originally computer program, or calculating pro-
sent. portions, percentages, frequency dis-
(c) Form of requests. (1) Each request tributions, trends, or comparisons. In
should describe the particular record to those instances where DOT determines
the fullest extent possible. The request that creating a new record will be less
should describe the subject matter of burdensome than disclosing large vol-
the record, and, if known, indicate the umes of unassembled material, DOT
date when it was made, the place where may, in its discretion, agree to cre-
it was made, and the person or office ation of a new record as an alternative
that made it. If the description does to disclosing existing records. Records
not enable the office handling the re- will be provided in the form or format
quest to identify or locate the record sought by the requestor if the record is
sought, that office will notify the re- readily reproducible in the requested
questor and, to the extent possible, in- format.
dicate the additional data required. (e) Search for records. (1) Each record
(2) Each request shall— made available under this subpart will
(i) Specify the fee category (commer- be made available for inspection and
cial use, news media, educational insti- copying during regular business hours
tution, noncommercial scientific insti- at the place where it is located, or
tution, or other) in which the requestor photocopying may be arranged with
claims the request to fall and the basis the copied materials being mailed to
64
the requestor upon payment of the ap- (2) Federal Highway Administration,
propriate fee. Original records ordi- Room 4428.
narily will be copied except in this in- (3) National Highway Traffic Safety
stance where, in DOT’s judgment, Administration, Room 5221.
copying would endanger the quality of (4) Federal Transit Administration,
the original or raise the reasonable Room 9400.
possibility of irreparable harm to the (5) Maritime Administration, Room
record. In these instances, copying of 7221.
the original would not be in the public (6) Research and Special Programs
interest. In any event, original records
Administration, Room 8419.
will not be released from DOT custody.
(7) Bureau of Transportation Statis-
Original records, regardless of format,
may be returned to agency service tics, Room 3430.
upon provision of a copy of the record (8) Office of Inspector General, Room
to the requestor, or, in the case of a de- 9210.
nial, upon creation and retention of a (b) Federal Aviation Administration,
copy of the original for purposes of 800 Independence Avenue, S.W., Room
FOIA processing. 906A, Washington, DC 20591.
(2) DOT will make a reasonable effort (c) United States Coast Guard, 2100
to search for requested records in elec- 2nd Street, S.W., Room 6106, Wash-
tronic form or format, unless doing so ington, DC 20593–0001.
would significantly interfere with oper- (d) Director, Office of Finance, Saint
ation of the affected automated infor- Lawrence Seaway Development Cor-
mation system. poration, 180 Andrews Street, P.O. Box
(f) If a requested record is known not 520, Massena, New York 13662–0520.
to exist in the files of the agency, or to (e) Federal Railroad Administration,
have been destroyed or otherwise dis- 1120 Vermont Avenue NW, 7th Floor,
posed of, the requestor will be so noti- Washington, DC. (Mailing address: 400
fied. Seventh St., SW, Washington, DC
(g) Fees will be determined in accord- 20590.)
ance with subpart F of this part. (f) Transportation Security Adminis-
(h) Notwithstanding paragraphs (a) tration, 301 Seventh Street, SW. (Gen-
through (g) of this section, informa- eral Services Administration Regional
tional material, such as news releases, Office Building), Room 3624, Wash-
pamphlets, and other materials of that ington, DC (Mailing address: 400 Sev-
nature that are ordinarily made avail- enth Street, SW., Washington, DC
able to the public as a part of any in- 20590).
formation program of the Government
(g) Certain DOT components also
will be available upon oral or written
maintain FOIA contacts at regional of-
request. A fee will be not be charged
for individual copies of that material fices and at the offices of the Com-
so long as the material is in supply. In mandant and District Commanders of
addition DOT will continue to respond, the United States Coast Guard. Addi-
without charge, to routine oral or writ- tional information on the location of
ten inquiries that do not involve the these offices can be obtained through
furnishing of records. the FOIA contact offices listed in this
section.
§ 7.15 Contacts for records requested (h) If the person making the request
under the FOIA. does not know where in DOT the record
Each person desiring a record under is located, he or she may make an in-
this subpart should submit a request in quiry to the Chief, FOIA Division, Of-
writing (via paper, facsimile, or elec- fice of the General Counsel (voice:
tronic mail) to the DOT component 202.366.4542; facsimile: 202.366.8536).
where the records are located: (i) Requests for records under this
(a) FOIA Offices at 400 7th Street, part, and Freedom of Information Act
S.W., Washington, DC 20590: inquiries generally, may be made by
(1) Office of the Secretary of Trans- accessing the DOT Home Page on the
portation, Room 5432. Internet (www.dot.gov) and clicking on
65
the Freedom of Information Act link for which exempt treatment is sought
(www.dot.gov/foia). and to persuade the agency that the in-
[Amdt. 1, 63 FR 38331, July 16, 1998, 67 FR formation should not be disclosed.
54746, Aug. 26, 2002] (b) The responsible DOT component
will, to the extent permitted by law,
§ 7.16 Requests for records of concern consider carefully a submitter’s objec-
to more than one government orga- tions and specific grounds for non-
nization. disclosure prior to determining wheth-
(a) If the release of a record covered er to disclose business information.
by this subpart would be of concern to Whenever a decision is made to dis-
both DOT and another Federal agency, close such information over the objec-
the determination as to release will be tion of a submitter, the office respon-
made by DOT only after consultation sible for the decision will forward to
with the other interested agency. the submitter a written notice of in-
(b) If the release of the record cov- tent to disclose that will, to the extent
ered by this subpart would be of con- permitted by law, be forwarded to the
cern to both DOT and a State, local, or submitter a reasonable number of days
Tribal government, a territory or pos- prior to the specified date upon which
session of the United States, or a for- disclosure is intended. At the same
eign government, the determination as time the submitter is notified, the re-
to release will be made by DOT only questor will be notified of the decision
after consultation with the interested to disclose information. The written
government. notice will include:
(c) Alternatively, DOT may refer the
(1) A statement of the reasons for
request (or relevant portion thereof)
which the submitter’s disclosure objec-
for decision by a Federal agency that
tions were not accepted;
originated or is substantially con-
cerned with the records, but only if (2) A description of the business in-
that agency is subject to FOIA. Such formation to be disclosed; and
referrals will be made expeditiously (3) A specific disclosure date.
and the requestor notified in writing (c) The notice requirements of this
that a referral has been made. section will not apply if:
(1) The office responsible for the deci-
§ 7.17 Consultation with submitters of sion determines that the information
commercial and financial informa- should not be disclosed;
tion.
(2) The information lawfully has been
(a) If a request is received for infor- published or otherwise made available
mation that has been designated by the to the public; or
submitter as confidential commercial (3) Disclosure of the information is
information, or which DOT has some required by law (other than 5 U.S.C.
other reason to believe may contain in- 552).
formation of the type described in
(d) The procedures established in this
§ 7.13(c)(4), the submitter of such infor-
section will not apply in the case of:
mation will, except as is provided in
paragraphs (c) and (d) of this section, (1) Business information submitted
be notified expeditiously and asked to to the National Highway Traffic Safety
submit any written objections to re- Administration and addressed in 49
lease. At the same time, the requestor CFR Part 512.
will be notified that notice and an op- (2) Information contained in a docu-
portunity to comment are being pro- ment to be filed or in oral testimony
vided to the submitter. The submitter that is sought to be withheld pursuant
will, to the extent permitted by law, be to Rule 39 of the Rules of Practice in
afforded a reasonable period of time Aviation Economic Proceedings (14
within which to provide a detailed CFR 302.39).
statement of any such objections. The (e) Whenever a requestor brings suit
submitter’s statement shall specify all seeking to compel disclosure of con-
grounds for withholding any of the in- fidential commercial information, the
formation. The burden shall be on the responsible DOT component will
submitter to identify all information promptly notify the submitter.
66
Subpart D—Procedures for Ap- trict of Columbia. A determination

pealing Decisions Not To Dis- that a record will not be disclosed and/
close Records and/or Waive or that a request for a fee waiver or re-
duction will not be granted does not
Fees constitute final agency action for the
§ 7.21 General. purposes of judicial review unless:
(1) It was made by the responsible
(a) Each officer or employee of DOT
DOT official; or
who, upon a request by a member of
the public for a record under this part, (2) The applicable time limit has
makes a determination that the record passed without a determination on the
is not to be disclosed, either because it initial request or the appeal, as the
is subject to an exemption or not in case may be, having been made.
DOT’s custody and control, will give a (d) Each appeal must be made in
written statement of the reasons for writing within thirty days from the
that determination to the person mak- date of receipt of the original denial
ing the request; and indicate the names and should include the DOT file or ref-
and titles or positions of each person erence number assigned to the request
responsible for the initial determina- and all information and arguments re-
tion not to comply with such request, lied upon by the person making the re-
and the availability of an appeal within quest. (Appeals may be submitted via
DOT. The denial letter will include an facsimile and conventional mail, but
estimate of the volume of records or in- not via electronic mail.) Such letter
formation withheld, in number of pages should indicate that it is an appeal
or in some other reasonable form of es- from a denial of a request made under
timation. This estimate does not need FOIA. The envelope in which a mailed
to be provided if the volume is other- appeal is sent should be prominently
wise indicated through deletions on marked: ‘‘FOIA Appeal.’’ If these re-
records disclosed in part, or if pro- quirements are not met, the twenty-
viding an estimate would harm an in- day limit described in § 7.32 will not
terest protected by an applicable ex- begin to run until the appeal has been
emption. Records disclosed in part will identified, or would have been identi-
be marked or annotated to show both fied with the exercise of due diligence,
the amount and the location of the in- by a DOT employee as an appeal under
formation deleted whenever prac- FOIA, and has been received by the ap-
ticable. propriate office.
(b) When a request for a waiver of (e) Whenever the responsible DOT of-
fees pursuant to § 7.44 has been denied ficial determines it necessary, he/she
in whole or in part, the requestor may
may require the requestor to furnish
appeal the denial.
additional information, or proof of fac-
(c) Any person to whom a record has
tual allegations, and may order other
not been made available within the
proceedings appropriate in the cir-
time limits established by § 7.31 and
any person who has been given a deter- cumstances; in any case in which a re-
mination pursuant to paragraph (a) of quest or order is made, DOT’s time for
this section that a record will not be responding ceases to count while the
disclosed may appeal to the responsible requestor responds to the request or
DOT official. Any person who has not order. The decision of the responsible
received an initial determination on DOT official as to the availability of
his or her request within the time lim- the record or the appropriateness of a
its established by § 7.31 can seek imme- fee waiver or reduction constitutes
diate judicial review, which may be final agency action for the purpose of
sought without the need first to submit judicial review.
an administrative appeal. Judicial re- (f) The decision of the responsible
view may be sought in the United DOT official not to disclose a record
States District Court for the judicial under this part or not to grant a re-
district in which the requestor resides quest for a fee waiver or reduction is
or has his or her principal place of considered to be a denial by the Sec-
business, the judicial district in which retary for the purpose of 5 U.S.C.
the records are located, or in the Dis- 552(a)(4)(B).
67
(g) Any final determination by the (2) A component using multitrack

head of an DOT component not to dis- processing may provide requesters in
close a record under this part, or not to its slower track(s) with an opportunity
grant a request for a fee waiver or re- to limit the scope of their requests in
duction, is subject to concurrence by a order to qualify for faster processing
representative of the General Counsel. within the specified limits of the com-
(h) Upon a determination that an ap- ponent’s faster track(s). A component
peal will be denied, the requestor will doing so will contact the requestor ei-
be informed in writing of the reasons ther by telephone, letter, facsimile, or
for the denial of the request and the electronic mail, whichever is most effi-
names and titles or positions of each cient in each case.
person responsible for the determina- (c) Expedited processing. (1) Requests
tion, and that judicial review of the de- and appeals will be taken out of order
termination is available in the United and given expedited treatment when-
States District Court for the judicial ever a compelling need is demonstrated
district in which the requestor resides and it is determined that the compel-
or has his or her principal place of ling need involves:
business, the judicial district in which (i) Circumstances in which the lack
the requested records are located, or of expedited treatment could reason-
the District of Columbia. ably be expected to pose an imminent
threat to the life or physical safety of
an individual;
Subpart E—Time Limits (ii) Requests made by a person pri-
§ 7.31 Initial determinations. marily engaged in disseminating infor-
mation, with an urgency to inform the
An initial determination whether to public of actual or alleged Federal Gov-
release a record requested pursuant to ernment activity.
subpart C of this part will be made (2) A request for expedited processing
within twenty Federal working days may be made at the time of the initial
after the request is received by the ap- request for records or at any later
propriate office in accordance with time. For a prompt determination, a
§ 7.14, except that this time limit may request for expedited processing must
be extended by up to ten Federal work- be received by the proper component.
ing days in accordance with § 7.33. The Requests must be submitted to the
person making the request will be noti- component that maintains the records
fied immediately of such determina- requested.
tion. If the determination is to grant (3) A requestor who seeks expedited
the request, the desired record will be processing must submit a statement,
made available as promptly as possible. certified to be true and correct to the
If the determination is to deny the re- best of that person’s knowledge and be-
quest, the person making the request lief, explaining in detail the basis for
will be notified in writing, at the same requesting expedited processing. For
time he or she is notified of such deter- example, a requestor within the cat-
mination, of the reason for the deter- egory in paragraph (c)(1)(ii) of this sec-
mination, the right of such person to tion, if not a full-time member of the
appeal the determination, and the news media, must establish that he or
name and title of each person respon- she is a person whose main professional
sible for the initial determination to activity or occupation is information
deny the request. dissemination, though it need not be
(a) In general. Components ordinarily his or her sole occupation. A requestor
will respond to requests according to within the category in paragraph
their order of receipt. (c)(1)(ii) of this section also must es-
(b) Multitrack processing. (1) A compo- tablish a particular urgency to inform
nent may use two or more processing the public about the government activ-
tracks by distinguishing between sim- ity involved in the request, beyond the
ple and more complex requests based public’s right to know about govern-
on the amount of work and/or time ment activity generally. The formality
needed to process the request, or on the of certification may be waived as a
number of pages involved. matter of discretion.
68
(4) Within ten calendar days of re- public of actual or alleged Federal Gov-
ceipt of a request for expedited proc- ernment activity.
essing, the proper component will de- (2) A request for expedited processing
cide whether to grant it and will notify may be made at the time of the appeal
the requestor of the decision. If a re- or at any later time. For a prompt de-
quest for expedited treatment is grant- termination, a request for expedited
ed, the request will be given priority processing must be received by the
and will be processed as soon as prac- proper component, which is the compo-
ticable. If a request for expedited proc- nent that is processing the appeal for
essing is denied, any appeal of that de- the records requested.
cision will be acted on expeditiously. (3) A requestor who seeks expedited
processing must submit a statement,
§ 7.32 Final determinations.
certified to be true and correct to the
(a) A determination with respect to best of that person’s knowledge and be-
any appeal made pursuant to § 7.21 will lief, explaining in detail the basis for
be made within twenty Federal work- requesting expedited processing. For
ing days after receipt of such appeal example, a requestor within the cat-
except that this time limit may be ex- egory in § 7.31(c)(1)(ii), if not a full-time
tended by up to ten Federal working member of the news media, must estab-
days in accordance with § 7.33. The per- lish that he or she is a person whose
son making the request will be notified main professional activity or occupa-
immediately of such determination tion is information dissemination,
pursuant to § 7.21. though it need not be his or her sole
(b) In general. Components ordinarily occupation. A requestor within the cat-
will respond to appeals according to egory in § 7.31(c)(1)(ii) also must estab-
their order of receipt. lish a particular urgency to inform the
(c) Multitrack processing. (1) A compo- public about the government activity
nent may use two or more processing involved in the request, beyond the
tracks by distinguishing between sim- public’s right to know about govern-
ple and more complex appeals based on ment activity generally. The formality
the amount of work and/or time needed of certification may be waived as a
to process the appeal, or on the number matter of discretion. A person who was
of pages involved.
granted expedited processing under
(2) A component using multitrack
§ 7.31 need merely certify that the same
processing may provide persons mak-
circumstances apply.
ing appeals in its slower track(s) with
an opportunity to limit the scope of (4) Within ten calendar days of re-
their appeals in order to qualify for ceipt of a request for expedited proc-
faster processing within the specified essing, the proper component will de-
limits of the component’s faster cide whether to grant it and will notify
track(s). A component doing so will the requestor of the decision. If a re-
contact the person making the appeal quest for expedited treatment is grant-
either by telephone, letter, facsimile, ed, the appeal will be given priority
or electronic mail, whichever is most and will be processed as soon as prac-
efficient in each case. ticable. If a request for expedited proc-
(d) Expedited processing. (1) An appeal essing of an appeal is denied, no further
will be taken out of order and given ex- administrative recourse is available.
pedited treatment whenever a compel-
§ 7.33 Extension.
ling need is demonstrated and it is de-
termined that the compelling need in- (a) In unusual circumstances as spec-
volves: ified in this section, the time limits
(i) Circumstances in which the lack prescribed in § 7.31 and § 7.32 may be ex-
of expedited treatment could reason- tended by written notice to the person
ably be expected to pose an imminent making the request setting forth the
threat to the life or physical safety of reasons for such extension and the date
an individual; on which a determination is expected
(ii) A request made by a person pri- to be dispatched. Such notice may not
marily engaged in disseminating infor- specify a date that would result in a
mation, with an urgency to inform the cumulative extension of more than 10
69
Federal working days without pro- hour week and the member’s normal
viding the requestor an opportunity to basic pay and allowances.
modify the request as noted in this sec- (c) This subpart applies to all em-
tion. As used in this paragraph, ‘‘un- ployees of DOT, including those of non-
usual circumstances’’ means, but only appropriated fund activities of the
to the extent reasonably necessary to Coast Guard and the Maritime Admin-
the proper processing of the particular istration.
request: (d) This subpart does not apply to
(1) The need to search for and collect any special study, special statistical
the requested records from field facili- compilation, table, or other record re-
ties or other establishments that are quested under 49 U.S.C. 329(c). The fee
separate from the office processing the for the performance of such a service is
request. the actual cost of the work involved in
(2) The need to search for, collect, compiling the record. All such fees re-
and appropriately examine a volumi- ceived by DOT in payment of the cost
nous amount of separate and distinct of such work are deposited in a sepa-
records that are demanded in a single rate account administered under the
request; or direction of the Secretary, and may be
(3) The need for consultation, which used for the ordinary expenses inci-
will be conducted with all practicable dental to providing the information.
speed, with any other agency or DOT (e) This subpart does not apply to re-
component having a substantial inter- quests from record subjects for records
est in the determination of the request about themselves in DOT systems of
or among two or more components of records, which are determined in ac-
the agency having substantial subject- cordance with the Privacy Act, as im-
matter interest therein. plemented by DOT regulations (49 CFR
(b) Where the extension is for more part 10).
than 10 working days, the DOT compo-
nent will provide the requestor with an § 7.42 Payment of fees.
opportunity either to modify the re- (a) The fees prescribed in this subpart
quest so that it may be processed with- may be paid by check, draft, or money
in the time limits or to arrange an al- order, payable to the DOT component
ternative time period with the compo- where fees were incurred, for deposit in
nent for processing the request or a the General Fund of the Treasury of
modified request. the United States, e.g. DOT/FAA.
(c) Where a component reasonably (b) Charges may be assessed by DOT
believes that multiple requests sub- for time spent searching for requested
mitted by a requestor, or by a group of records even if the search fails to lo-
requesters acting in concert, constitute cate records or the records located are
a single request that would otherwise determined to be exempt from disclo-
involve unusual circumstances, and the sure. In addition, if records are re-
requests involve clearly related mat- quested for commercial use, DOT may
ters, they may be aggregated for the assess a fee for time spent reviewing
purposes of fees and processing activi- any responsive records located to de-
ties. Multiple requests involving unre- termine whether they are exempt from
lated matters will not be aggregated. disclosure.
(c) When it is estimated that the
Subpart F—Fees search charges, review charges, dupli-
cation fees, or any combination of fees
§ 7.41 General. that could be charged to the requestor
(a) This subpart prescribes fees for will likely exceed US $25, the requestor
services performed for the public under will be notified of the estimated
subparts B and C of this part by DOT. amount of the fees, unless the re-
(b) All terms defined by FOIA apply questor has indicated in advance his or
to this subpart, and the term ‘‘hourly her willingness to pay fees as high as
rate’’ means the actual hourly base pay those anticipated. In cases where a re-
for a civilian employee or, for members questor has been notified that actual
of the Coast Guard, the equivalent or estimated fees may amount to more
hourly pay rate computed using a 40- than US $25, the request will be deemed
70
not to have been received until the re- (h) If payment of fees charged is not
questor has agreed to pay the antici- received within 30 calendar days after
pated total fee. The notice will also in- the date the initial notice of the
form the requestor how to consult with amount due is first mailed to the re-
the appropriate DOT officials with the questor, an administrative charge will
object of reformulating the request to be assessed by DOT to cover the cost of
meet his or her needs at a lower cost. processing and handling the delinquent
(d) Payment of fees may be required claim. In addition, a penalty charge
prior to actual duplication or delivery will be applied with respect to any
of any releasable records to a re- principal amount of a debt that is more
questor. However, advance payment, than 90 days past due. Where appro-
i.e., before work is commenced or con- priate, other steps permitted by Fed-
tinued on a request, may not be re- eral debt collection statutes, including
quired unless: disclosure to consumer reporting agen-
(1) Allowable charges that a re- cies and use of collection agencies, will
questor may be required to pay are be used by DOT to encourage payment
likely to exceed US $250; or of amounts overdue.
(2) The requestor has failed to pay (i) Notwithstanding any other provi-
within 30 days of the billing date fees sion of this subpart, when the total
charged for a previous request to any amount of fees that could be charged
part of DOT. for a particular request (or aggregation
of requests) under subpart C of this
(e) When paragraph (d)(1) of this sec-
part, after taking into account all serv-
tion applies, the requestor will be noti-
ices that must be provided free of, or at
fied of the likely cost and, where he/she
a reduced, charge, is less than US $10.00
has a history of prompt payment of
DOT will not make any charge for fees.
FOIA fees, requested to furnish satis-
factory assurance of full payment of § 7.43 Fee schedule.
FOIA fees. Where the requestor does
not have any history of payment, he or The rates for manual searching, com-
she may be required to make advance puter operator/programmer time and
payment of any amount up to the full time spent reviewing records will be
estimated charges. calculated based on the grades and
(f) When paragraph (d)(2) of this sec- rates established by the Washington-
Baltimore Federal White-Collar Pay
tion applies, the requestor will be re-
Schedule or equivalent grades, as fol-
quired to demonstrate that the fee has,
lows:
in fact, been paid or to pay the full
amount owed, including any applicable When performed by employees:
interest, late handling charges, and GS–1 through GS–8—Hourly rate of GS–5 step
penalty charges as discussed in para- 7 plus 16%
graphs (g) and (h) of this section. The GS–9 through GS–14—Hourly rate of GS–12
requestor will also be required to make step 7 plus 16%
an advance payment of the full amount GS–15 and above—Hourly rate of GS–15 step
7 plus 16%
of the estimated fee before processing
of a new request or continuation of a (a) The standard fee for a manual
pending request is begun. search to locate a record requested
(g) DOT will assess interest on an un- under subpart C of this part, including
paid bill starting on the 31st day fol- making it available for inspection, will
lowing the day on which the notice of be determined by multiplying the
the amount due is first mailed to the searcher’s rate as calculated from the
requestor. Interest will accrue from the chart in this section and the time
date of the notice of amount due and spent conducting the search.
will be at the rate prescribed in 31 (b) The standard fee for a computer
U.S.C. 3717. Receipt by DOT of a pay- search for a record requested under
ment for the full amount of the fees subpart C of this part is the actual
owed within 30 calendar days after the cost. This includes the cost of oper-
date of the initial billing will stay the ating the central processing unit for
accrual of interest, even if the payment the time directly attributable to
has not been processed. searching for records responsive to a
71
FOIA request and the operator/pro- quested under subpart C if the records
grammer’s rate as calculated from the are not for commercial use and the re-
chart for costs apportionable to the questor is a representative of the news
search. media, an educational institution
(c) The standard fee for review of whose purpose is scholarly research, or
records requested under subpart C of a non-commercial scientific institution
this part is the reviewer’s rate as cal- whose purpose is scientific research.
culated from the chart multiplied by (c) A fee is not to be charged for du-
the time he/she spent determining plication of the first 100 pages (stand-
whether the requested records are ex- ard paper, not larger than 8.5×14 inches)
empt from mandatory disclosure. of records provided to any requestor in
(d) The standard fee for duplication response to a request under Subpart C
of a record requested under subpart C unless the records are requested for
of this part is determined as follows: commercial use.
(1) Per copy of each page (not larger (d) A fee is not to be charged to any
than 8.5×14 inches) reproduced by pho- requestor under subpart C to determine
tocopy or similar means (includes costs whether a record is exempt from man-
of personnel and equipment)—US $0.10. datory disclosure unless the record is
(2) Per copy prepared by computer requested for commercial use. A review
such as tapes or printout—actual costs, charge may not be charged except with
including operator time. respect to an initial review to deter-
(3) Per copy prepared by any other mine the applicability of a particular
method of duplication—actual direct exemption to a particular record or
cost of production. portion of a record. A review charge
(e) Depending upon the category of may not be assessed for review at the
requestor, and the use for which the administrative appeal level. When
records are requested, in some cases records or portions of records withheld
the fees computed in accordance with in full under an exemption that is sub-
the standard fee schedule in paragraph sequently determined not to apply are
(d) of this section will either be re- reviewed again to determine the appli-
duced or not charged, as prescribed by cability of other exemptions not pre-
other provisions of this subpart. viously considered, this is considered
(f) The following special services not an initial review for purposes of assess-
required by FOIA may be made avail- ing a review charge.
able upon request, at the stated fees: (e) Documents will be furnished with-
Certified copies of documents, with out charge or at a reduced charge if the
DOT or DOT component seal (where au- official having initial denial authority
thorized)—US $4.00; or true copy, with- determines that disclosure of the infor-
out seal—US $2.00. mation is in the public interest because
it is likely to contribute significantly
§ 7.44 Services performed without to public understanding of the oper-
charge or at a reduced charge. ations or activities of the government
(a) A fee is not to be charged to any and is not primarily in the commercial
requestor making a request under sub- interest of the requestor.
part C of this part for the first two (f) Factors to be considered by DOT
hours of search time unless the records officials authorized to determine
are requested for commercial use. For whether a waiver or reduction of fees
purposes of this subpart, when a com- will be granted include:
puter search is required two hours of (1) Whether the subject matter of the
search time will be considered spent requested records concerns the oper-
when the hourly costs of operating the ations or activities of the Federal gov-
central processing unit used to perform ernment;
the search added to the computer oper- (2) Whether the disclosure is likely to
ator’s salary cost (hourly rate plus 16 contribute to an understanding of Fed-
percent) equals two hours of the com- eral government operations or activi-
puter operator’s salary costs (hourly ties;
rate plus 16 percent). (3) Whether disclosure of the re-
(b) A fee is not to be charged for any quested information will contribute to
time spent searching for a record re- the understanding of the public at
72
large, as opposed to the individual un- National Technical Information Serv-

derstanding of the requestor or a nar- ice (NTIS), Springfield, Virginia 22151;
row segment of interested persons; or National Audio-Visual Center, Na-
(4) Whether the contribution to pub- tional Archives and Records Adminis-
lic understanding of Federal govern- tration, Capital Heights, MD 20743–3701.
ment operations or activities will be
significant; PART 8—CLASSIFIED INFORMA-
(5) Whether the requestor has a com- TION: CLASSIFICATION/DECLAS-
mercial interest that would be
furthered by the requested disclosure;
SIFICATION/ACCESS
and
Subpart A—General
(6) Whether the magnitude of any
identified commercial interest to the Sec.
requestor is sufficiently large in com- 8.1 Scope.
parison with the public interest in dis- 8.3 Applicability.
closure that disclosure is primarily in 8.5 Definitions.
8.7 Spheres of responsibility.
the commercial interest of the re-
questor. Subpart B—Classification/Declassification
(g) Documents will be furnished with- of Information
out charge or at a reduced charge if the
official having initial denial authority 8.9 Information Security Review Com-
determines that the request concerns mittee.
records related to the death of an im- 8.11 Authority to classify information.
8.13 Authority to downgrade or declassify.
mediate family member who was, at 8.15 Mandatory review for classification.
the time of death, a DOT employee or 8.17 Classification challenges.
a member of the Coast Guard. 8.19 Procedures for submitting and proc-
(h) Documents will be furnished with- essing requests for classification reviews.
out charge or at a reduced charge if the 8.21 Burden of proof.
official having initial denial authority 8.23 Classified information transferred to
determines that the request is by the the Department of Transportation.
victim of a crime who seeks the record
Subpart C—Access to Information
of the trial or court-martial at which
the requestor testified. 8.25 Personnel Security Review Board.
8.27 Public availability of declassified infor-
§ 7.45 Transcripts. mation.
Transcripts of hearings or oral argu- 8.29 Access by historical researchers and
former Presidential appointees.
ments are available for inspection. 8.31 Industrial security.
Where transcripts are prepared by a
nongovernmental contractor, and the AUTHORITY: E. O. 10450, 3 CFR, 1949–1953
contract permits DOT to handle the re- Comp., p. 936; E. O. 12829, 3 CFR, 1993 Comp.,
p. 570; E. O. 12958, 3 CFR, 1995 Comp., p. 333;
production of further copies, § 7.43 ap- E. O. 12968, 3 CFR, 1995 Comp., p. 391.
plies. Where the contract for tran-
scription services reserves the sales SOURCE: 62 FR 23661, May 1, 1997, unless
privilege to the reporting service, any otherwise noted.
duplicate copies must be purchased di-
rectly from the reporting service. Subpart A—General
§ 7.46 Alternative sources of informa- § 8.1 Scope.
tion. This part sets forth procedures for
In the interest of making documents the classification, declassification, and
of general interest publicly available availability of information that must
at as low a cost as possible, alternative be protected in the interest of national
sources will be arranged whenever pos- security, in implementation of Execu-
sible. In appropriate instances, mate- tive Order 12958 of April 17, 1995, ‘‘Clas-
rial that is published and offered for sified National Security Information;’’
sale may be obtained from the Super- and for the review of decisions to re-
intendent of Documents, U.S. Govern- voke, or not to issue, national security
ment Printing Office, Washington, DC information clearances, or to deny ac-
20402; U.S. Department of Commerce’s cess to classified information, under
73
Executive Order 12968 of August 2, 1995, Declassification means the authorized

‘‘Access to National Security Informa- change in the status of information
tion’’. from classified information to unclassi-
fied information.
§ 8.3 Applicability. Downgrading means a determination
This part applies to all elements of by a declassification authority that in-
the Department of Transportation. formation classified and safeguarded at
a specific level shall be classified and
§ 8.5 Definitions. safeguarded at a lower level.
Information means any knowledge
As used in this part:
that can be communicated, or docu-
Classification means the act or proc- mentary material, regardless of its
ess by which information is determined physical form or characteristics, that
to be classified information. is owned by, produced by or for, or is
Classification levels means the fol- under the control of the United States
lowing three levels at which informa- Government. ‘‘Control’’ means the au-
tion may be classified: thority of the agency that originates
(a) Top secret. Information that re- information, or its successor in func-
quires the highest degree of protection, tion, to regulate access to the informa-
and the unauthorized disclosure of tion.
which could reasonably be expected to Mandatory declassification review
cause exceptionally grave damage to means the review for declassification
the national security that the original of classified information in response to
classification authority is able to iden- a request for declassification that
tify or describe. qualifies under Section 3.6 of Executive
(b) Secret. Information that requires Order 12958.
a substantial degree of protection, and Original classification means an initial
the unauthorized disclosure of which determination that information re-
could reasonably be expected to cause quires, in the interest of national secu-
serious damage to the national security, protection against unauthorized
rity that the original classification au- disclosure.
thority is able to identify or describe. Original classification authority means
(c) Confidential. Information that re- an individual authorized in writing, ei-
quires protection and the unauthorized ther by the President or by agency
disclosure of which could reasonably be heads or other officials designated by
expected to cause damage to the na- the President, to classify information
tional security that the original classi- in the first instance.
fication authority is able to identify or
describe. § 8.7 Spheres of responsibility.
Classified information or ‘‘classified (a) Pursuant to Section 5.6(c) of Ex-
national security information’’ means ecutive Order 12958, and to section 6.1
information that has been determined of Executive Order 12968, the Assistant
under Executive Order 12958, or any Secretary for Administration is hereby
predecessor or successor order, to redesignated as the senior agency official
quire protection against unauthorized of the Department of Transportation
disclosure, and is marked to indicate with assigned responsibilities to assure
its classified status when in documen- effective compliance with and imple-
tary form. mentation of Executive Order 12958,
Clearance means that an individual is Executive Order 12968, Office of Man-
eligible, under the standards of Execu- agement and Budget Directives, the
tive Orders 10450 and 12968 and appro- regulations in this part, and related
priate DOT regulations, for access to issuances.
classified information. (b) In the discharge of these respon-
Damage to the national security means sibilities, the Assistant Secretary for
harm to the national defense or foreign Administration will be assisted by the
relations of the United States from the Director of Security and Administra-
unauthorized disclosure of information, tive Management, who, in addition to
to include the sensitivity, value, and other actions directed by this part, will
utility of that information. evaluate the overall application of and
74
adherence to the security policies and member may designate a representa-

requirements prescribed in this part tive with full power to serve in his/her
and who will report his/her findings place.
and recommendations to the Assistant (c) In carrying out its responsibilities
Secretary for Administration, heads of to review decisions to revoke or not to
Departmental elements, and, as appro- issue clearances, or to deny access to
priate, to the Secretary. classified information, the Committee
(c) Secretarial Officers and heads of will establish whatever procedures it
Departmental elements will assure deems fit.
that the provisions in this part are ef-
fectively administered, that adequate § 8.11 Authority to classify informa-
personnel and funding are provided for tion.
this purpose, and that corrective ac-
tions that may be warranted are taken (a) Executive Order 12958 confers
promptly. upon the Secretary of Transportation
the authority to originally classify in-
Subpart B—Classification/ formation as SECRET or CONFIDEN-
TIAL with further authorization to
Declassification of Information delegate this authority.
§ 8.9 Information Security Review (b) The following delegations of au-
Committee. thority originally to classify informa-
(a) There is hereby established a De- tion as ‘‘Secret’’ or ‘‘Confidential’’,
partment of Transportation Informa- which may not be redelegated, are
tion Security Review Committee, hereby made:
which will have authority to: (1) Office of the Secretary of Transpor-
(1) Act on all suggestions and com- tation. The Deputy Secretary; Assist-
plaints not otherwise resolved with re- ant Secretary for Administration; Di-
spect to the Department’s administra- rector of Intelligence and Security; Di-
tion of Executive Order 12958 and im- rector of Security and Administrative
plementing directives, including those Management.
regarding overclassification, failure to (2) United States Coast Guard. Com-
declassify, or delay in declassifying; mandant; Chief, Office of Law Enforce-
(2) Act on appeals of requests for ment and Defense Operations.
classification reviews, and appeals of (3) Federal Aviation Administration.
requests for records under 5 U.S.C. 552 Administrator; Assistant Adminis-
(Freedom of Information Act) when the trator for Civil Aviation Security.
initial, and proposed final, denials are (4) Maritime Administration. Adminis-
based on continued classification of the trator.
record; and
(c) Although the delegations of au-
(3) Recommend to the Secretary,
thority set out in paragraph (b) of this
when necessary, appropriate adminis-
section are expressed in terms of posi-
trative action to correct abuse or vio-
lation of any provision of Executive tions, the authority is personal and is
Order 12598 and implementing direc- invested only in the individual occu-
tives. pying the position. The authority may
(b) The Information Security Review not be exercised ‘‘by direction of’’ a
Committee will be composed of the As- designated official. The formal ap-
sistant Secretary for Administration, pointment or assignment of an indi-
who will serve as Chair; the General vidual to one of the identified positions
Counsel; and the Director of Security or a designation in writing to act in
and Administrative Management. the absence of one of these officials,
When matters affecting a particular however, conveys the authority origi-
Departmental agency are at issue, the nally to classify information as ‘‘SE-
Associate Administrator for Adminis- CRET’’.
tration for that agency, or the Chief of (d) Previous delegations and redele-
Staff for the U.S. Coast Guard, as the gations of authority within the Depart-
case may be, will participate as an ad ment of Transportation originally to
hoc member, together with the Chief classify information are hereby re-
Counsel of that agency. Any regular scinded.
75
§ 8.13 Authority to downgrade or de- (1) No individual will be subject to

classify. retribution for bringing such a chal-
Information originally classified by lenge; and
the Department may be specifically (2) Each individual whose challenge
downgraded or declassified by either is denied will be advised that he/she
the official authorizing the original may appeal to the Interagency Secu-
classification, if that official is still rity Classification Appeals Panel es-
serving in the same position, the origi- tablished by section 5.4 of Executive
nator’s current successor in function, a Order 12958.
supervisory official of either, officials (b) This classification challenge pro-
delegated declassification authority in vision is not intended to prevent an au-
writing by the Secretary, or by the De- thorized holder of information classi-
partmental Information Security Re- fied by the Department of Transpor-
view Committee. tation from informally questioning the
classification status of particular in-
§ 8.15 Mandatory review for classifica- formation. Such information inquiries
tion. should be encouraged as means to re-
solve classification concerns and re-
(a) All information classified by the
duce the administrative burden of for-
Department of Transportation under
mal challenges.
Executive Order 12958 or predecessor
orders shall be subject to a review for § 8.19 Procedures for submitting and
declassification if: processing requests for classifica-
(1) The request for review describes tion reviews.
the information with sufficient speci- (a) The Director of Security and Ad-
ficity to enable its location with a rea- ministrative Management is hereby
sonable amount of effort; and designated as the official to whom a
(2) The information has not been remember of the public or another de-
viewed for declassification within the partment or agency should submit a re-
prior two years. If the information has quest for a classification review of
been reviewed within the prior two classified information produced by or
years, or the information is the subject under the primary cognizance of the
of pending litigation, the requestor will Department. Elements of the Depart-
be informed of this fact, and of the De- ment that receive a request directly
partment’s decision not to declassify will immediately notify the Director.
the information and of his/her right to (b) If the request for classification re-
appeal the Department’s decision not view involves material produced by or
to declassify the information to the under the cognizance of the U.S. Coast
Interagency Security Classification Guard or the Federal Aviation Admin-
Appeals Panel. istration, the Director will forward the
(b) All information reviewed for de- request to the headquarters security
classification because of a mandatory staff of the element concerned for ac-
review will be declassified if it does not tion. If the request involves material
meet the standards for classification in produced by other Departmental ele-
Executive Order 12958. The information ments, the Director will serve as the
will then be released unless with- office acting on the request.
holding is otherwise authorized and (c) The office acting on the request
warranted under applicable law. will:
(1) Immediately acknowledge receipt
§ 8.17 Classification challenges. of the request and provide a copy of the
(a) Authorized holders of information correspondence to the Director. If a fee
classified by the Department of Trans- for search of records is involved pursu-
portation who, in good faith, believe ant to 49 CFR Part 7, the requester will
that its classification status is im- be so notified;
proper are encouraged and expected to (2) Conduct a security review, which
challenge the classification status of will include consultation with the of-
the information before the Depart- fice that produced the material and
mental Information Security Review with source authorities when the clas-
Committee. sification, or exemption of material
76
from automatic declassification, was (f) Upon receipt of an appeal from a

based upon determinations by an origi- classification review determination
nal classifying authority; and based upon continued classification,
(3) Assure that the requester is noti- the Departmental Information Secu-
fied of the determination within 30 cal- rity Review Committee will acknowl-
endar days or given an explanation as edge receipt immediately and act on
to why further time is necessary, and the matter within 30 calendar days.
provide a copy of the notification to With respect to information originally
the Director. classified by or under the primary cog-
(d) If the determination reached is nizance of the Department, the Com-
that continued classification is re- mittee, acting for the Secretary, has
quired, the notification to the re- authority to overrule previous deter-
quester will include, whenever possible, minations in whole or in part when, in
a brief statement as to why the re- its judgment, continued protection in
quested material cannot be declas- the interest of national security is no
sified. The notification will also advise longer required. When the classifica-
the requester of the right to appeal the tion of the material produced in the
determination to the Departmental In- Department is based upon a classifica-
formation Security Review Committee. tion determination made by another
A requester who wishes to appeal a department or agency, the Committee
classification review decision, or who will immediately consult with its
has not been notified of a decision after counterpart committee for that depart-
60 calendar days, may submit an appeal ment or agency.
to the Departmental Information Secu- (1) If it is determined that the mate-
rity Review Committee. rial produced in the Department re-
quires continued classification, the re-
(e) If the determination reached is
quester will be so notified and advised
that continued classification is not re-
of the right to appeal the decision to
quired, the information will be declas-
the Interagency Classification Review
sified and the material remarked ac-
Committee.
cordingly. The office acting on the re- (2) If it is determined that the mate-
quest will then refer the request to the rial no longer requires classification, it
office originating the material or high- will be declassified and remarked. The
er authority to determine if it is other- Committee will refer the request to the
wise withholdable from public release General Counsel, or to the head of the
under the Freedom of Information Act Departmental agency concerned, as the
(5 U.S.C. 552) and the Department’s im- case may be, to determine if the mate-
plementing regulations (49 CFR Part rial is otherwise withholdable from the
7). public under the Freedom of Informa-
(1) If the material is available under tion Act (5 U.S.C. 552) and Depart-
the Freedom of Information Act, the mental regulations, (49 CFR Part 7),
requester will be advised that the ma- and paragraphs (f)(1) and (2) of this sec-
terial has been declassified and is tion will be followed. A copy of the re-
available. If the request involves the sponse to the requester will be provided
furnishing of copies and a fee is to be to the Committee.
collected, the requester will be so ad- (g) Requests for a classification re-
vised pursuant to 49 CFR Part 7, De- view of material more than 25 years old
partmental regulations implementing will be referred directly to the Archi-
the Freedom of Information Act. vist of the United States and the re-
(2) If the material is not available quester will be notified of the referral.
under the Freedom of Information Act, In this event, the provisions of this sec-
the requester will be advised that the tion apply.
material has been declassified but that (h) Whenever a request is insufficient
the record is unavailable pursuant to in the description of the record sought,
the Freedom of Information Act, and the requester will be asked to limit his
that the provisions concerning proce- request to records that are reasonably
dures for reconsidering decisions not to obtainable. If, in spite of these steps,
disclose records, contained in 49 CFR the requester does not describe the
Part 7, apply. records with sufficient particularity, or
77
the record requested cannot be ob- (d) To the extent practicable, the De-
tained with a reasonable amount of ef- partment will adopt a system of
fort, the requester will be notified of records management that will facili-
the reasons why the request is denied tate the public release of documents at
and of his/her right to appeal the deter- the time such documents are declas-
mination to the Departmental Infor- sified under the provisions of this part
mation Security Review Committee. for automatic declassification. To the
maximum extent possible without de-
§ 8.21 Burden of proof. stroying the integrity of the Depart-
For the purpose of determinations to ment’s files, all such material will be
be made under §§ 8.13, 8.15, and 8.17, the segregated or set aside for public re-
burden of proof is on the originating lease upon request. The Department
Departmental agency to show that con- will cooperate with the Archivist in ef-
tinued classification is warranted. forts to establish a Government-wide
database of information that has been
§ 8.23 Classified information trans- declassified.
ferred to the Department of Trans-
portation. Subpart C—Access to Information
(a) Classified information officially
transferred to the Department in con- § 8.25 Personnel Security Review
Board.
junction with a transfer of function,
and not merely for storage purposes, (a) There is hereby established a De-
will be considered to have been origi- partment of Transportation Personnel
nated by the Department. Security Review Board, which will, on
(b) Classified information in the cus- behalf of the Secretary of Transpor-
tody of the Department originated by a tation (except in any case in which the
department or agency that has ceased Secretary personally makes the deci-
to exist and for whom there is no suc- sion), make the administratively final
cessor agency will be deemed to have decision on an appeal arising in any
been originated by the Department. part of the Department from:
This information may be declassified (1) A decision not to grant access to
or downgraded by the Department after classified information;
consultation with any other agency (2) A decision to revoke access to
that has an interest in the subject mat- classified information; or
ter of the information. Such agency (3) A decision under § 8.29 to deny ac-
will be allowed 30 calendar days in cess to classified information.
which to express an objection, if it so (b) The Personnel Security Review
desires, before action is taken. A dif- Board will be composed of:
ference of opinion that cannot be re- (1) Two persons appointed by the As-
solved will be referred to the Depart- sistant Secretary for Administration:
mental Information Security Review one from the Office of Personnel and
Committee, which will consult with its Training, and one, familiar with per-
counterpart committee for the other sonnel security adjudication, from the
agency. Office of Security and Administrative
(c) Classified information transferred Management, who will serve as Chair;
to the National Archives and Records (2) One person appointed by the Gen-
Administration (NARA) will be declas- eral Counsel, who, in addition to serv-
sified or downgraded by the Archivist ing as a member of the Board, will pro-
of the United States in accordance vide to the Board whatever legal serv-
with Executive Order 12958, Depart- ices it may require; and
mental classification guides, and any (3) One person appointed by each of
existing procedural agreement between the Commandant of the Coast Guard
NARA and the Department. The De- and the Federal Aviation Adminis-
partment will take all reasonable steps trator.
to declassify information contained in (4) Any member may designate a rep-
records determined to have permanent resentative, meeting the same criteria
historical value before they are as the member, with full power to serve
accessioned in NARA. in his/her place.
78
(c) In carrying out its responsibilities sponsorship. The provisions are appli-
to review final decisions to revoke or cable only to situations where the clas-
deny access to classified information, sified information concerned, or any
the Board will establish whatever pro- part of it, was originated by the De-
cedures it deems fit. partment or its contractors, or where
the information, if originated else-
§ 8.27 Public availability of declas- where, is in the sole custody of the De-
sified information. partment. Any person requesting ac-
(a) It is a fundamental policy of the cess to material originated in another
Department to make information agency or to information under the ex-
available to the public to the max- clusive jurisdiction of the National Ar-
imum extent permitted by law. Infor- chives and Records Administration
mation that is declassified for any rea- (NARA) will be referred to the other
son loses its status as material pro- agency or to NARA, as appropriate.
tected in the interest of national secu- (3) When a request for access to clas-
rity. Accordingly, declassified informa- sified information for historical re-
tion will be handled in every respect on search is received, it will be referred to
the same basis as all other unclassified the appropriate local security office.
information. Declassified information That office will obtain from the appli-
is subject to the Departmental public cant completed Standard Form 86,
information policies and procedures, Questionnaire for National Security
with particular reference to the Free- Positions, in triplicate, and Standard
dom of Information Act (5 U.S.C. 552) Form 87, Fingerprint Chart; a state-
and implementing Departmental regu- ment in detail to justify access, includ-
lations (49 CFR Part 7). ing identification of the kind of infor-
(b) In furtherance of this policy, all mation desired and the organization or
classified material produced after June organizations, if any, sponsoring the
1, 1972 that is of sufficient historical or research; and a written statement
other value to warrant preservation as (signed, dated, and witnessed) with re-
permanent records in accordance with spect to the following:
appropriate records administrative
(i) That the applicant will abide by
standards, and that becomes declas-
regulations of the Department:
sified, will be systematically reviewed
prior to the end of each calendar year (A) To safeguard classified informa-
for the purpose of making the material tion; and
publicly available. To the maximum (B) To protect information that has
extent possible without destroying the been determined to be proprietary or
integrity of the Department’s files, all privileged and is therefore not eligible
such material will be segregated or set for public dissemination.
aside for public release upon request. (ii) That the applicant understands
that any classified information that
§ 8.29 Access by historical researchers the applicant receives affects the secu-
and former Presidential appointees. rity of the United States.
(a) Historical researchers. (1) Persons (iii) That the applicant acknowledges
outside the executive branch who are an obligation to safeguard classified in-
engaged in historical research projects formation or privileged information of
may have access to classified informa- which the applicant gains possession or
tion provided that: knowledge as a result of the applicant’s
(i) Access to the information is clear- access to files of the Department.
ly consistent with the interests of na- (iv) That the applicant agrees not to
tional security; and reveal to any person or agency any
(ii) The person to be granted access is classified information or privileged in-
trustworthy. formation obtained as a result of the
(2) The provisions of this paragraph applicant’s access except as specifi-
apply only to persons who are con- cally authorized in writing by the De-
ducting historical research as private partment, and further agrees that the
individuals or under private sponsor- applicant shall not use the information
ship and do not apply to research con- for purposes other than those set forth
ducted under Government contract or in the applicant’s application.
79
(v) That the applicant agrees to au- formation is involved a special back-
thorize a review of the applicant’s ground investigation is required. How-
notes and manuscript for the sole pur- ever, this investigation will not be re-
pose of determining that no classified quested until the matter has been re-
information or material is contained ferred through channels to the Director
therein. of Security and Administrative Man-
(vi) That the applicant understands agement for determination as to ade-
that failure to abide by conditions of quacy of the justification and the con-
this statement will constitute suffi- sent of other agencies as required.
cient cause for canceling the appli- (6) When it is indicated that an appli-
cant’s access to classified information cant’s research may extend to material
and for denying the applicant any fu- originating in the records of another
ture access, and may subject the appli-
agency, approval must be obtained
cant to criminal provisions of Federal
from the other agency prior to the
law as referred to in this statement.
grant of access.
(vii) That the applicant is aware and
fully understands that title 18, United (7) Approvals for access will be valid
States Code, Crimes and Criminal Pro- for the duration of the current research
cedures, and the Internal Security Act project but no longer than 2 years from
of 1950, as amended, title 50, United the date of issuance, unless renewed. If
States Code, prescribe, under certain a subsequent request for similar access
circumstances, criminal penalties for is made by the individual within one
the unauthorized disclosure of informa- year from the date of completion of the
tion respecting the national security, current project, access may again be
and for loss, destruction, or com- granted without obtaining a new Na-
promise of such information. tional Agency Check. If more than one
(viii) That this statement is made to year has elapsed, a new National Agen-
the U.S. Government to enable it to ex- cy Check must be obtained. The local
ercise its responsibilities for the pro- security office will promptly advise its
tection of information affecting the na- headquarters security staff of all ap-
tional security. provals of access granted under the
(ix) That the applicant understands provisions of this section.
that any material false statement that (8) An applicant may be given access
the applicant makes knowingly and only to that classified information that
willfully will subject the applicant to is directly pertinent to the applicant’s
the penalties of 18 U.S.C. 1001. approved project. The applicant may
(4) The security office will process review files or records containing clas-
the forms in the same manner as speci- sified information only in offices under
fied for a preappointment national the control of the Department. Proce-
agency check for a critical-sensitive
dures must be established to identify
position. Upon receipt of the completed
classified material to which the appli-
national agency check, the security of-
cant is given access. The applicant
fice, if warranted, may determine that
must be briefed on local procedures es-
access by the applicant to the informa-
tion will be clearly consistent with the tablished to prevent unauthorized ac-
interests of national security and the cess to the classified material while in
person to be granted access is trust- the applicant’s custody, for the return
worthy. If deemed necessary, before of the material for secure storage at
making its determination, the office the end of the daily working period,
may conduct or request further inves- and for the control of the applicant’s
tigation. Before access is denied in any notes until they have been reviewed. In
case, the matter will be referred addition to the security review of the
through channels to the Director of Se- applicant’s manuscript, the manuscript
curity and Administrative Manage- must be reviewed by appropriate of-
ment for review and submission to the fices to assure that it is technically ac-
Personnel Security Review Board for curate insofar as material obtained
final review. from the Department is concerned, and
(5) If access to TOP SECRET or intel- is consistent with the Department’s
ligence or communications security in- public release policies.
80
(b) Former Presidential appointees. Per- contracting officers assure that actions
sons who previously occupied policy- required by the regulation are taken.
making positions to which they were
appointed by the President may be PART 9—TESTIMONY OF EMPLOY-
granted access to classified informa-
tion or material that they originated,
EES OF THE DEPARTMENT AND
reviewed, signed, or received, while in PRODUCTION OF RECORDS IN
public office, provided that: LEGAL PROCEEDINGS
(1) It is determined that such access
is clearly consistent with the interests Sec.
of national security; and 9.1 Purpose.
(2) The person agrees to safeguard 9.2 Applicability.
the information, to authorize a review 9.3 Definitions.
of the person’s notes to assure that 9.5 General prohibition of production or dis-
classified information is not contained closure in legal proceedings.
therein, and that the classified infor- 9.7 Testimony by employees before the De-
partment or in other legal proceedings in
mation will not be further dissemi- which the United States is a party.
nated or published. 9.9 Legal proceedings between private liti-
gants: General rules.
§ 8.31 Industrial security.
9.11 Legal proceedings between private liti-
(a) Background. The National Indus- gants: Demands.
trial Security Program was established 9.13 Legal proceedings between private liti-
by Executive Order 12829 of January 6, gants: Procedures to request records.
1993 for the protection of information 9.15 Legal proceedings between private liti-
classified pursuant to Executive Order gants: Procedures to request testimony.
12356 of April 2, 1982, National Security 9.17 Legal proceedings between private liti-
Information, or its predecessor or suc- gants: Procedures for taking testimony.
cessor orders, and the Atomic Energy 9.19 Acceptance of service on behalf of Sec-
Act of 1954, as amended. The Secretary retary.
of Defense serves as the Executive AUTHORITY: 5 U.S.C. 301; 45 U.S.C. 41–42; 49
Agent for inspecting and monitoring U.S.C. 322; 49 U.S.C. 504(f); 23 U.S.C. 409.
contractors, licensees, grantees, and SOURCE: 58 FR 6724, Feb. 2, 1993, unless oth-
certificate holders that require or will erwise noted.
require access to, or that store or will
store, classified information, and for § 9.1 Purpose.
determining the eligibility for access
to classified information of contrac- (a) This part sets forth procedures
tors, licensees, certificate holders, and governing the testimony of an em-
grantees, and their respective employ- ployee in legal proceedings in which
ees. the United States is a party. It also
(b) Implementing regulations. The Sec- sets forth procedures to be followed
retary of Transportation has entered when an employee is issued a subpoena,
into agreement for the Secretary of De- order or other demand (collectively re-
fense to render industrial security ferred to in this part as a ‘‘demand’’)
services for the Department of Trans- by a court or other competent author-
portation. Regulations prescribed by ity, or is requested by a private liti-
the Secretary of Defense to fulfill the gant, to provide testimony or produce
provisions of Executive Order 12829 records concerning information ac-
have been extended to protect release quired in the course of performing offi-
of classified information for which the cial duties or because of the employee’s
Secretary of Transportation is respon- official status. It also prescribes the
sible. Specifically, this regulation is policies and procedures of the Depart-
DOD 5220.22–M, National Industrial Se- ment with respect to the acceptance of
curity Program Operating Manual. service of legal process and pleadings
This regulation is effective within the in legal proceedings involving the De-
Department of Transportation, which partment.
functions as a User Agency as pre- (b) The purposes of this part are to:
scribed in the regulation. Appropriate (1) Conserve the time of employees
security staffs, project personnel, and for conducting official business;
81
(2) Minimize the possibility of involv- Department means the Department of

ing the Department in controversial Transportation (DOT), including the
issues not related to its mission; Office of the Secretary (which encom-
(3) Maintain the impartiality of the passes the Office of the Inspector Gen-
Department among private litigants; eral) and the following operating ad-
(4) Avoid spending the time and ministrations while they are part of
money of the United States for private DOT:
purposes; and (a) The U.S. Coast Guard.
(5) To protect confidential, sensitive (b) The Federal Aviation Administra-
information and the deliberative proc- tion.
esses of the Department. (c) The Federal Highway Administra-
(c) Agency counsel, in his or her dis- tion.
cretion, may permit an exception from (d) The Federal Railroad Administra-
any requirement in this part. The ex- tion.
ception may be granted only when the (e) The Federal Transit Administra-
deviation will not interfere with mat- tion.
ters of operational or military neces- (f) The St. Lawrence Seaway Devel-
sity, and when agency counsel deter- opment Corporation.
mines that: (g) The National Highway Traffic
(1) It is necessary to prevent a mis- Safety Administration.
carriage of justice; (h) The Maritime Administration.
(2) The Department has an interest in (i) The Research and Special Pro-
the decision that may be rendered in grams Administration.
the legal proceeding; or (j) Any DOT operating administra-
(3) The exception is in the best inter- tion established after the effective date
est of the Department or the United of this part.
States. Legal proceeding means any case or
For Office of Inspector General em- controversy pending before any federal,
ployees and documents, the Inspector state, or local court (including grand
General, in conjunction with the Gen- jury proceedings), any administrative
eral Counsel of the Department, may proceeding pending before any federal,
permit an exception from any require- state, or local agency, or any legisla-
ment of this part if the Inspector Gen- tive proceeding pending before any
eral determines, based on the Inspector state or local agency.
General Act of 1978, as amended, that Legal proceeding between private liti-
application of the requirement would gants means any legal proceeding in
be inappropriate. which neither the Department of
Transportation nor the United States
§ 9.2 Applicability. (including any federal agency or officer
This part applies to the testimony of of the United States in his or her offi-
an employee in legal proceedings in cial capacity) is a party.
which the United States is a party. It Employee of the Department or Em-
also applies in legal proceedings be- ployee means any current or former of-
tween private litigants to requests or ficer or employee of the Department;
demands for testimony or records con- any active duty, retired, or former offi-
cerning information acquired in the cer or enlisted member of the Coast
course of an employee performing offi- Guard; or any current or former con-
cial duties or because of the employee’s tractor (including any corporation or
official status. This part does not apply other entity and any employee or sub-
to any legal proceeding in which an contractor).
employee is to testify as to facts or Agency counsel means the General
events that are in no way related to Counsel of the Department or the Chief
the employee’s official duties or the Counsel of any operating administra-
functions of the Department. Nor does tion of the Department concerned, any
it apply to Congressional demands for person to whom the General Counsel or
testimony or documents. Chief Counsel has delegated authority,
or any person who is authorized to rep-
§ 9.3 Definitions. resent the Department in a specific
For purposes of this part: legal proceeding.
82
Testimony means any written or oral Guard in any legal proceeding con-
statement by a witness, including ducted by the Coast Guard.
depositions, answers to interrogatories,
affidavits, declarations, and state- § 9.9 Legal proceedings between pri-
ments at a hearing or trial. vate litigants: General rules.
In legal proceedings between private
§ 9.5 General prohibition of production litigants:
or disclosure in legal proceedings.
(a) The proper method for obtaining
No employee of the Department may testimony or records from an employee
provide testimony or produce any ma- is to submit a request to agency coun-
terial contained in the files of the De- sel as provided in §§ 9.13 and 9.15 of this
partment, or disclose any information part, not to serve a demand on the em-
relating to, or based upon, material ployee. Whenever, in a legal proceeding
contained in the files of the Depart- between private litigants, an employee
ment, or disclose any information or is served with a demand, or receives a
produce any material acquired as part request, to testify in that employee’s
of the performance of that employee’s official capacity or produce records,
official duties or because of that em- the employee shall immediately notify
ployee’s official status unless author- agency counsel.
ized in accordance with this part, or by (b) If authorized to testify pursuant
other applicable law.
to these rules, an employee may testify
§ 9.7 Testimony by employees before only as to facts within that employee’s
the Department or in other legal personal knowledge with regard to
proceedings in which the United matters arising out of his or her offi-
States is a party. cial duties.
In any legal proceeding before the (1) When the proceeding arises from
Department or in which the United an accident, an employee may testify
States (including any federal agency or only as to personally known facts, not
officer of the United States) is a party: reasonably available from other
(a) Agency counsel shall arrange for sources, observed by the employee or
an employee to testify as a witness for uncovered during the employee’s inves-
the United States whenever the attor- tigation of the accident or observed by
ney representing the United States re- the employee even if he or she did not
quests it. investigate the accident. The employee
(b) An employee may testify for the shall decline to testify regarding facts
United States both as to facts within beyond the scope of his or her official
the employee’s personal knowledge and duties.
as an expert or opinion witness. Except (2) The employee shall not testify to
as provided in paragraph (c) of this sec- facts that are contained in a report, or
tion, an employee may not testify as any part of a report, unless the em-
an expert or opinion witness, with re- ployee has obtained permission from
gard to any matter arising out of the agency counsel to disclose the informa-
employee’s official duties or the function.
tions of the Department, for any party (3) The employee shall not disclose
other than the United States in any confidential or privileged information
legal proceeding in which the United unless the employee has obtained per-
States is a party. An employee who re- mission from agency counsel to dis-
ceives a demand to testify on behalf of close the information.
a party other than the United States (4) The employee shall not testify as
may testify as to facts within the em- to facts when agency counsel deter-
ployee’s personal knowledge, provided mines that the testimony would not be
that the testimony be subject to the in the best interest of the Department
prior approval of agency counsel and to or the United States if disclosed.
the Federal Rules of Civil Procedure (c) An employee shall not testify as
and any applicable claims of privilege. an expert or opinion witness with re-
(c) An employee may testify as an ex- gard to any matter arising out of the
pert or opinion witness on behalf of an employee’s official duties or the func-
officer or enlisted member of the Coast tions of the Department. An employee
83
who is asked questions that call for ex- produce records, agency counsel, in his
pert or opinion testimony shall decline or her discretion, may grant the em-
to answer on the grounds that it is for- ployee permission to testify or produce
bidden by this part. Agency counsel records only if the purposes of this part
shall advise the employee on how to are met or agency counsel determines
proceed if the presiding officer directs that an exception is appropriate.
the employee to provide expert or opin- (c) If a demand is issued to an em-
ion testimony. ployee, agency counsel shall contact
(d) An employee shall not provide the requester of the demand, inform
testimony at a trial or hearing. An em- that person of the requirements of this
ployee’s testimony shall be limited to part, and may, in agency counsel’s dis-
a single deposition, affidavit, or set of cretion, ask that the demand be with-
interrogatories, concerning the cir- drawn.
cumstances (e.g. an accident) from (d) If the requester of the demand re-
which the proceeding arose. Where fuses to have it withdrawn or fails to
multiple legal proceedings concerning comply with this part, the Department
those circumstances are pending, or may seek to quash the demand.
can occur, it shall be the duty of the (e) If the court or other competent
private litigant seeking the testimony authority declines to grant the Depart-
to ascertain, to the extent feasible, the ment’s motion to quash, agency coun-
identities of all parties, or potential sel shall instruct the employee whether
parties, to those proceedings and notify to testify or produce documents pursu-
them that a deposition has been grant- ant to the demand. Agency counsel
ed and that they have the opportunity may permit the testimony under § 9.1(c)
to participate. The private litigant of this part. If response to a demand is
shall submit an affidavit or certifi- required before the court or other com-
cation describing the extent of the petent authority rules on the motion
search for parties and potential parties to quash and the court fails to stay the
and listing the names of the parties demand, the employee must appear at
and potential parties notified. the stated time and place, produce a
(e) Where an employee has already copy of this part, and respectfully
provided testimony, any party wishing refuse to provide any testimony or
to obtain further testimony from that produce any documents. Agency coun-
employee concerning the same matter sel shall take steps to arrange for legal
or occurrence, whether in the same or representation for the employee. Agen-
a different private legal proceeding, cy counsel shall advise the employee
may submit a request to agency coun- how to respond, including not to tes-
sel to waive the restrictions of para- tify, if the court or other competent
graph (d) of this section. The request authority rules that the demand must
shall, in addition to meeting the re- be complied with irrespective of these
quirements of § 9.15 of this part, state regulations.
why the requester should be permitted
to gather additional information de- § 9.13 Legal proceedings between pri-
spite not having previously requested vate litigants: Procedures to re-
the information when it had an oppor- quest records.
tunity to do so, and why the additional (a) In a legal proceeding between pri-
testimony is now required and the vate litigants, a party who wishes to
prior testimony or previously supplied obtain records from the Department
documents are insufficient. shall submit to agency counsel a re-
quest for the records. The request will
§ 9.11 Legal proceedings between pri- ordinarily be handled in accordance
vate litigants: Demands. with the Department’s procedures con-
(a) If an employee receives a demand cerning requests for records found at 49
that has not been validly issued or CFR part 7. If the party does not follow
served, agency counsel may instruct the procedures specified in that part,
the employee not to comply with the the request must be accompanied by a
demand. statement setting forth the relevance
(b) If an employee receives a demand of the records to the proceeding. The
(validly issued and served) to testify or request should be resolved before any
84
request for testimony under § 9.15 is one least burdensome to the Depart-
submitted. Where a request for testi- ment that will provide the needed in-
mony includes a request for additional formation, will be permitted for each
records, it shall indicate precisely how witness.
this new request differs in scope from (b) The party seeking the testimony
any previous request in order to avoid shall include with its request for testi-
agency duplication of effort. Agency mony a copy of any prior request(s)
counsel shall notify the requester of made by the same requester to the De-
the approval or denial of the request. partment or other agency of the United
(b) [Reserved] States for records pertaining to the
matter being litigated and of the re-
§ 9.15 Legal proceedings between pri- sponse (not including the records them-
vate litigants: Procedures to re- selves) to the request(s). The party
quest testimony.
seeking the testimony shall also com-
(a) Any party seeking the testimony ply with any agency counsel request
of an employee in a legal proceeding that copies of the records previously
between private litigants, concerning disclosed by the Department, or a list
facts within the employee’s personal of those records, be furnished.
knowledge with regard to matters aris- (c) In accordance with the require-
ing out of the employee’s official du- ment of this section and the general
ties, shall, rather than serving a de- provisions of this part, agency counsel
mand for the testimony, request the shall notify the requester of the ap-
testimony at least 30 days before it is proval or denial of the request. Agency
intended to be taken or received. The counsel may attach special conditions
request must be submitted to agency to its approval.
counsel and must include:
(1) The title of the case, docket num- § 9.17 Legal proceedings between pri-
ber, and the court, or otherwise clearly vate litigants: Procedures for tak-
identify the legal proceeding involved; ing testimony.
(2) A statement setting forth the (a) Testimony of an employee of the
basic facts in the proceeding, such as Department may be taken only at the
the type, date, and location of an acci- office to which the employee is as-
dent; signed, or any other place designated
(3) A summary of the unresolved by agency counsel. Additional condi-
issues applicable to the testimony tions may be specified under § 9.15(c) of
sought; this part. The time shall be reasonably
(4) A summary of the testimony fixed to avoid substantial interference
sought and its relevant to the pro- with the performance of the employee’s
ceeding; or agency counsel’s official duties.
(5) A certification with support, that (b) Upon completion of the testimony
the information desired is not reason- of an employee of the Department, a
ably available from other sources, in- copy of the transcript of the testimony
cluding Departmental documents; shall be furnished, at the expense of
(6) Pursuant to § 9.9(d) of this part, an the party requesting the testimony, to
affidavit or certification describing the agency counsel for the Department’s
extent of a search of parties and poten- files.
tial parties and listing the names of
the parties and potential parties noti- § 9.19 Acceptance of service on behalf
fied; and of Secretary.
(7) A declaration that the party will In any legal proceeding, at the option
not seek expert or opinion testimony of the server, process or pleadings may
from the witness or seek the testimony be served on agency counsel, with the
of the witness at a hearing or trial in same effect as if served upon the Sec-
the proceeding. retary or the head of the operating ad-
The request shall specify which form of ministration concerned, as the case
testimony (deposition, affidavit, dec- may be. The official accepting service
laration, or answers to interrogatories) under this section shall acknowledge
is desired and the date by which it is the service and take appropriate ac-
desired; however, only one form, the tion. This section does not in any way
85
Pt. 10 49 CFR Subtitle A (10–1–07 Edition)
abrogate or modify the requirements of 10.85 Wrongfully obtaining records.

Rule 4(d)(4) and 4(d)(5) of the Federal APPENDIX TO PART 10—EXEMPTIONS
Rules of Civil Procedure regarding AUTHORITY: 5 U.S.C. 552a; 49 U.S.C. 322.
service of summons and complaint.
SOURCE: 45 FR 8993, Feb. 11, 1980, unless
otherwise noted.
PART 10—MAINTENANCE OF AND
ACCESS TO RECORDS PER- Subpart A—Applicability and
TAINING TO INDIVIDUALS Policy
Subpart A—Applicability and Policy § 10.1 Applicability.
Sec. This part implements section 552a of
10.1 Applicability. title 5, United States Code, as well as
10.3 Policy. other provisions of the Privacy Act of
10.5 Definitions. 1974, and prescribes rules governing the
availability of those records of the De-
Subpart B—General partment of Transportation which re-
10.11 Administration of part. late to citizens of the United States
10.13 Privacy Act Officer. and aliens lawfully admitted for per-
10.15 Protection of records. manent residence.
Subpart C—Maintenance of Records [45 FR 8993, Feb. 11, 1980, as amended at 62
FR 23666, May 1, 1997]
10.21 General.
10.23 Accounting of disclosures. § 10.3 Policy.
10.25 Mailing lists. It is the policy of the Department of
10.27 Government contractors.
10.29 Social Security numbers. Transportation to comply with the let-
ter and the spirit of the Privacy Act
Subpart D—Availability of Records (the Act). Therefore, personal data con-
tained in each system of records is af-
10.31 Requests for records. forded adequate protection against un-
10.33 Acknowledgment and access. authorized access, is as accurate as is
10.35 Conditions of disclosure.
10.37 Identification of individual making re-
feasible, and is limited to that nec-
quest. essary to accomplish the stated use or
10.39 Location of records. uses of the system. Further, no system
of records is exempted from the re-
Subpart E—Correction of Records quirements of the Act unless it is de-
termined that to do so is in the best in-
10.41 Requests for correction of records.
10.43 Time limits.
terest of the government with due con-
10.45 Statement of disagreement. cern for individual rights.
Subpart F—Procedures for Reconsidering § 10.5 Definitions.

Decisions Not To Grant Access to or Unless the context requires other-
Amend Records wise, the following definitions apply in
this part:
10.51 General.
Administrator means the head of an
Subpart G—Exemptions operating administration and includes
the Under Secretary for Security and
10.61 General exemptions. the Commandant of the Coast Guard.
10.63 Specific exemptions. Department means the Department of
Transportation, including the Office of
Subpart H—Fees the Secretary, the Office of Inspector
10.71 General. General, and the following operating
10.73 Payment of fees. administrations: This definition spe-
10.75 Fee schedule. cifically excludes the Surface Trans-
10.77 Services performed without charge. portation Board, which has its own Pri-
vacy Act regulations (49 CFR Part
Subpart I—Criminal Penalties 1007), except to the extent that any sys-
10.81 Improper disclosure. tem of records notice provides other-
10.83 Improper maintenance of records. wise.
86
(a) The United States Coast Guard. vided by section 8 of title 13, United
(b) The Federal Aviation Administra- States Code; and
tion. Routine use means, with respect to
(c) The Federal Highway Administra- the disclosure of a record, the use of
tion. such record for a purpose which is com-
(d) The Federal Railroad Administra- patible with the purpose for which it
tion. was collected.
(e) The National Highway Traffic
Safety Administration. [45 FR 8993, Feb. 11, 1980, as amended at 62
(f) Federal Transit Administration. FR 23667, May 1, 1997; 65 FR 48184, Aug. 7,
(g) The St. Lawrence Seaway Devel- 2000; 67 FR 54746, Aug. 26, 2002]
opment Corporation.
(h) The Research and Special Pro- Subpart B—General
grams Administration.
(i) Bureau of Transportation Statis- § 10.11 Administration of part.
tics. Authority to administer this part in
(j) Maritime Administration. connection with the records of the Of-
(k) Transportation Security Adminis- fice of the Secretary is delegated to the
tration. Assistant Secretary for Administra-
General Counsel means the General
tion. Authority to administer this part
Counsel of the Department.
in connection with records in each op-
Includes means ‘‘includes but is not
limited to;’’ erating administration is delegated to
Individual means a citizen of the the Administrator concerned. An Ad-
United States or an alien lawfully administrator may redelegate to officers
mitted; of that administration the authority to
Maintain includes maintain, collect, administer this part in connection with
use, or disseminate; defined systems of records. An Admin-
May is used in a permissive sense to istrator, however, may redelegate his
state authority or permission to do the or her duties under subparts F and G of
act prescribed; this part only to his or her deputy and
Record means any item, collection, or to not more than one other officer who
grouping of information about an indi- reports directly to the Administrator
vidual that is maintained by the De- and who is located at the headquarters
partment including, but not limited to, of that administration or at the same
education, financial transactions, med- location as the majority of that admin-
ical history, and criminal or employ- istration’s systems of records.
ment history and that contains the
name of, or an identifying number, [45 FR 8993, Feb. 11, 1980, as amended at 62
symbol, or other identifying particular FR 23667, May 1, 1997]
assigned to, the individual, such as a
§ 10.13 Privacy Act Officer.
finger or voice print or a photograph;
Secretary means the Secretary of (a) To assist with implementation,
Transportation or any person to whom evaluation, and administration issues,
has been delegated authority in the the Chief Information Officer appoints
matter concerned; a principal coordinating official with
System of records means a group of the title Privacy Act Officer, and one
any records under the control of the Privacy Act Coordinator from his/her
Department from which information is staff.
retrieved by the name of the individual (b) Inquiries concerning Privacy Act
or by some identifying number, sym- matters, or requests for assistance,
bol, or other identifying particular as- may be addressed to the Privacy Act
signed to the individual; Officer (S–80), Department of Transpor-
Statistical record means a record in a
tation, 400 Seventh Street, S.W., Wash-
system of records maintained for sta-
ington, DC 20590.
tistical research or reporting purposes
only and not in whole or in part in (c) Administrators may designate
making any determination about an Privacy Act Officers or Coordinators to
identifiable individual, except as pro- act as central coordinators within
87
their administrations to assist them in mation may result in adverse deter-

administering the Act. minations about an individual’s rights,
[45 FR 8993, Feb. 11, 1980, as amended by
benefits, or privileges under Federal
Amdt. 1–290, 62 FR 51804, Oct. 3, 1997] programs;
(c) Informs each individual whom it
§ 10.15 Protection of records. asks to supply information, on the
(a) No person may, without permis- form which it uses to collect the infor-
sion, remove any record made available mation or on a separate form that can
for inspection or copying under this be retained by the individual of:
part from the place where it is made (1) The authority (whether granted
available. In addition, no person may by statute, or by executive order of the
steal, alter, mutilate, obliterate, or de- President) which authorizes the solici-
stroy, in whole or in part, such a tation of the information and whether
record. disclosure of such information is man-
(b) Section 641 of title 18 of the datory or voluntary;
United States Code provides, in perti- (2) The principal purpose or purposes
nent part, as follows: for which the information is intended
to be used;
Whoever * * * steals, purloins, or know- (3) The routine uses, as published
ingly converts to his use or the use of an- pursuant to paragraph (d)(4) of this sec-
other, or without authority, sells, conveys or tion, which may be made of the infor-
disposes of any record * * * or thing of value
of the United States or of any department or
mation; and
agency thereof * * * shall be fined not more (4) The effects, if any, on the indi-
than $10,000 or imprisoned not more than 10 vidual of not providing all or any part
years or both; but if the value of such prop- of the requested information;
erty does not exceed the sum of $100, he shall (d) Publishes in the FEDERAL REG-
be fined not more than $1,000 or imprisoned ISTER at least annually a notice of the
not more than one year or both * * *. existence and character of the system
(c) Section 2071 of title 18 of the of records, including:
United States Code provides, in perti- (1) The name and location of the sys-
nent part, as follows: tem;
(2) The categories of individuals on
Whoever willfully and unlawfully conceals,
whom records are maintained in the
removes, mutilates, obliterates, or destroys,
or attempts to do so, or with intent to do so system;
takes and carries away any record, pro- (3) The categories of records main-
ceeding, map, book, paper, document, or tained in the system;
other thing, filed or deposited * * * in any (4) Each routine use of the records
public office, or with any * * * public officer contained in the system, including the
of the United States, shall be fined not more categories of users and the purpose of
than $2,000 or imprisoned not more than 3 such use;
years, or both.
(5) The policies and practices regard-
ing storage, retrievability, access con-
Subpart C—Maintenance of trols, retention, and disposal of the
Records records;
(6) The title and business address of
§ 10.21 General. the official responsible for the system
Except to the extent that a system of of records;
records is exempt in accordance with (7) The procedures whereby an indi-
subpart G of this part, the Department, vidual can be notified upon request if
with respect to each system of records: the system of records contains a record
(a) Maintains in its records only such pertaining to that individual;
information about an individual as is (8) The procedures whereby an indi-
relevant and necessary to accomplish a vidual can be notified upon request
purpose of the Department required to how to gain access to any record per-
be accomplished by statute or by exec- taining to that individual contained in
utive order of the President; the system of records, and how to con-
(b) Collects information to the great- test its content; and
est extent practicable directly from (9) The categories of sources of
the subject individual when the infor- records in the system;
88
(e) Maintains all records which are vidual named in the record at his re-
used in making any determination quest; and
about any individual with such accu- (d) Informs any person or other agen-
racy, relevancy, timeliness, and com- cy about any correction or notation of
pleteness as is reasonably necessary to dispute made by the agency in accord-
assure fairness to the individual in the ance with § 10.45 of any record that has
determination; been disclosed to the person or agency
(f) Prior to disseminating any record if an accounting of the disclosure was
about an individual to any person made.
other than an agency, unless the dis-
semination is made pursuant to FR 23667, May 1, 1997]
§ 10.35(a)(2), makes reasonable efforts to
assure that such records are accurate, § 10.25 Mailing lists.
complete, timely, and relevant for the
Department’s purposes; An individual’s name and address is
(g) Maintains no record describing not sold or rented unless such action is
how any individual exercises rights specifically authorized by law. This
guaranteed by the First Amendment provision shall not be construed to re-
unless: quire the withholding of names and ad-
(1) Expressly authorized by the Gen- dresses otherwise permitted to be made
eral Counsel; and public.
(2) Expressly authorized by statute or § 10.27 Government contractors.
by the individual about whom the
record is maintained or unless perti- When the Department provides by a
nent to and within the scope of an au- contract for the operation by or on be-
thorized law enforcement activity; half of the Department of a system of
(h) Makes reasonable efforts to serve records to accomplish a function of the
notice on an individual when any Department, the requirements of this
record on such individual is made part are applied to such system. For
available to any person under compul- purposes of subpart I, Criminal Pen-
sory legal process when such process alties, any such contractor and any
becomes a matter of public record. employee of the contractor are consid-
ered, in accordance with section 3(m) of
§ 10.23 Accounting of disclosures. the Privacy Act, to be employees of the
Each operating administration, the Department.
Office of Inspector General, and the Of-
§ 10.29 Social Security numbers.
fice of the Secretary, with respect to
each system of records under its con- (a) No individual is denied any right,
trol: benefit, or privilege provided by law
(a) Except for disclosures made under because of such individual’s refusal to
§ 10.35(a) (1) or (2) of this part, keep an disclose his Social Security account
accurate accounting of: number.
(1) The date, nature, and purpose of (b) The provisions of paragraph (a) of
each disclosure of a record to any per- this section do not apply to:
son or to another agency made under (1) Any disclosure which is required
§ 10.33; and by Federal statute; or
(2) The name and address of the per- (2) The disclosure of a Social Secu-
son or agency to whom the disclosure rity number when such disclosure was
is made; required under statute or regulation
(b) Retains the accounting made adopted prior to January 1, 1975, to
under paragraph (a) of this section for verify the identity of an individual.
at least five years or the life of the (c) When an individual is requested to
record, whichever is longer, after the disclose his or her Social Security ac-
disclosure for which the accounting is count number, that individual is in-
made; formed whether that disclosure is man-
(c) Except for disclosures made under datory or voluntary, by what statutory
§ 10.33(a)(7) of this part, makes the ac- or other authority such number is so-
counting made under paragraph (a)(1) licited, what uses are made of it, and
of this section available to the indi- what detriments, including delay in
89
the location of records, are incurred if (b) If the response granting access or
the number is not provided. copies of the record is made within 10
working days, separate acknowledg-
Subpart D—Availability of Records ment is not required.
(c) Although requests for access to a
§ 10.31 Requests for records. record are normally in writing, e.g., by
filing a written form or letter, it is the
(a) Ordinarily, each person desiring option of the individual to mail or
to determine whether a record per- present the request form in person.
taining to him/her is contained in a
system of records covered by this part § 10.35 Conditions of disclosure.
or desiring access to a record covered (a) No record that is contained with-
by this part, or to obtain a copy of such in a system of records of the Depart-
a record, shall make a request in writ- ment is disclosed by any means of com-
ing addressed to the system manager. munication to any person, or to an-
The ‘‘Privacy Act Issuances’’ published other agency, except pursuant to a
by the Office of the Federal Register, written request by, or with the prior
National Archives and Records Admin- written consent of, the individual to
istration, describes the systems of whom the record pertains, unless dis-
records maintained by all Federal closure of the record would be:
agencies, including the Department (1) To those officers and employees of
and its components. In exceptional the Department who have a need for
cases oral requests are accepted. A de- the record in the performance of their
scription of DOT Privacy Act systems duties;
notices is available through the Inter- (2) Required under part 7 of this title
net free of charge at http:// which implements the Freedom of In-
www.access.gpo.gov/suldocs/aces/ formation Act;
PrivacyAct.shtml?desc015.html. See (3) For a routine use as defined in
§ 10.13(b) regarding inquiries concerning § 10.5 and described pursuant to
Privacy Act matters or requests for as- § 10.21(d)(4);
sistance. (4) To the Bureau of the Census for
(b) Each request shall specify the purposes of planning or carrying out a
name of the requesting individual and census or survey or related activity
the system of records in which the sub- pursuant to the provisions of title 13,
ject record is located or thought to be United States Code;
located. If assistance is required to de- (5) To a recipient who has provided
termine the system of records identi- the Department with advance adequate
fication number assigned in the sys- written assurance that the record will
tems notices, such assistance may be be used solely as a statistical research
obtained from the appropriate Privacy or reporting record, and the record is
Act officer or his assistant. Refer to to be transferred in a form that is not
§ 10.13 for procedures for requesting as- individually identifiable;
sistance. (6) To the National Archives of the
United States as a record which has
[45 FR 8993, Feb. 11, 1980, as amended at 62 sufficient historical or other value to
FR 23667, May 1, 1997]
warrant its continued preservation by
the U.S. Government, or for evaluation
§ 10.33 Acknowledgment and access.
by the Administrator of General Serv-
(a) Requests by an individual to de- ices or his designee to determine
termine whether he or she is the sub- whether the record has such value;
ject of a record in a system of records, (7) To another agency or to an instru-
or requesting access to a record in a mentality of any governmental juris-
system of records, should be acknowl- diction within or under the control of
edged within 10 working days, where the United States for a civil or crimi-
the request is by mail. For requests in nal law enforcement activity if the ac-
person, an immediate response is given, tivity is authorized by law, and if the
either granting access or informing head of the agency or instrumentality
such individual when notification or has made a written request to the
access may be expected. agency which maintains the record
90
specifying the particular portion de- cluding psychological records, the deci-
sired and the law enforcement activity sion to release directly to the indi-
for which the record is sought; vidual, or to withhold direct release,
(8) To a person pursuant to a showing shall be made by a medical practi-
of compelling circumstances affecting tioner. Where the medical practitioner
the health or safety of an individual if has ruled that direct release will do
upon such disclosure notification is harm to the individual who is request-
transmitted to the last known address ing access, normal release through the
of such individual; individual’s chosen medical practi-
(9) To either House of the Congress, tioner will be recommended. Final re-
or to the extent of matters within its view and decision on appeals of dis-
jurisdiction, any committee or sub-
approvals of direct release will rest
committee thereof, any joint com-
with the General Counsel.
mittee of the Congress or sub-
committee of any such joint com- (d) Any person requesting access to
mittee; records or to any information per-
(10) To the Comptroller General, or taining to other individuals is not
any authorized representatives, in the granted such access unless that person
course of the performance of the duties can show that he or she has obtained
of the General Accounting Office; or permission for such access from the in-
(11) Pursuant to the order of a court dividual to whom the record pertains,
of competent jurisdiction. unless the request comes within one of
(12) To a consumer reporting agency the exceptions of paragraph (a) of this
in accordance with 31 U.S.C. 3711(f). section.
(b) Any individual requesting access
to his or her record or to any informa-
FR 23667, May 1, 1997]
tion pertaining to that individual
which is contained within a system of § 10.37 Identification of individual
records within the Department has ac- making request.
cess to that record or information un-
less the system of records within which No record or information contained
the record or information is contained in a system of records is disclosed to an
is exempted from disclosure in accord- individual nor is any correction of a
ance with subpart G, provided, how- record in accordance with subpart E
ever, that nothing in this part is made at the request of an individual
deemed to require that an individual be unless that individual demonstrates
given access to any information com- that he or she is who he or she claims
piled in reasonable anticipation of a to be. Normally, identity can be proven
civil action or proceeding. No exemp- for individuals who appear in person by
tion contained in subpart G of part 7 of the presentation of an identifying doc-
the regulations of the Office of the Sec- ument issued by a recognized organiza-
retary is relied upon to withhold from tion (e.g., a driver’s license or a credit
an individual any record which is oth- card) and which contains a means of
erwise accessible to such individual verification such as a photograph or a
under the provisions of this part. Any signature. For requests by mail, the
individual who is given access to a unique identifier used in the system
record or information pertaining to should be included if known. Responses
him is permitted to have a person of
to mail requests are normally sent
his or her own choosing accompany
only to the name and address listed in
him and to have a copy made of all or
the system of records. In the case of
any portion of the record or informa-
tion in a form comprehensible to the particularly sensitive records, addi-
individual. When deemed appropriate, tional identification requirements may
the individual may be required to fur- be imposed. In such cases, these addi-
nish a written statement authorizing tional requirements are listed in the
discussion of his record in the accom- public notice for the system.
panying person’s presence. [45 FR 8993, Feb. 11, 1980, as amended at 62
(c) Medical records. Where requests FR 23667, May 1, 1997]
are for access to medical records, in-
91
§ 10.39 Location of records. formed of the right to file a concise

statement setting forth the reasons for
Each record made available under
disagreement with the refusal to
this subpart is available for inspection
amend. In any disclosure containing in-
and copying during regular working
formation about which an individual
hours at the place where it is located,
has filed such a statement of disagree-
or, upon reasonable notice, at the docu-
ment, the portions of the record which
ment inspection facilities of the Office
are disputed are noted clearly and cop-
of the Secretary or each administra-
ies of the statement of disagreement
tion. Original records may be copied
provided. If the Administrator con-
but may not be released from custody.
cerned or his or her delegee, or in the
Upon payment of the appropriate fee,
case of the Office of the Secretary, the
copies are mailed to the requester.
General Counsel or his or her delegee,
[62 FR 23667, May 1, 1997] deems it appropriate, copies of a con-
cise statement of the reasons for not
Subpart E—Correction of Records making the amendments requested
may be provided along with the state-
§ 10.41 Requests for correction of ment of disagreement.
records.
Any person who desires to have a Subpart F—Procedures for Recon-
record pertaining to that person cor- sidering Decisions Not To
rected shall submit a written request Grant Access to or Amend
detailing the correction and the rea- Records
sons the record should be so corrected.
Requests for correction of records shall § 10.51 General.
be submitted to the System Manager.
(a) Each officer or employee of the
[62 FR 23667, May 1, 1997] Department who, upon a request by a
member of the public for a record
§ 10.43 Time limits. under this part, makes a determination
Within ten days (excluding Saturday, that access is not to be granted or who
Sunday, and legal holidays) of the re- determines not to amend a record in a
ceipt in accordance with § 10.41 of a re- requested manner, gives a written
quest by an individual to amend a statement of the reasons for that de-
record pertaining to him, the receipt of termination to the person making the
the request is acknowledged in writing. request and indicates the name and
If a determination is made to correct title or position of each person respon-
the record as requested, the correction sible for the denial of such request and
is promptly made. If a determination is the procedure for appeal within the De-
made not to correct a record the indi- partment.
vidual is informed promptly of the (b) Any person:
right to appeal in accordance with sub- (1) Who has been given a determina-
part F. If an appeal of a refusal to cor- tion pursuant to paragraph (a) of this
rect a record is in accordance with subsection, that access will not be grant-
part F, a determination whether to ed; or
correct the record is made within thir- (2) Who has been informed that an
ty days (excluding Saturday, Sunday, amendment to a requested record will
and legal holidays) of the receipt of the not be made; may apply to the Admin-
appeal unless, for good cause shown the istrator concerned, or in the case of the
Administrator concerned, or in the Office of the Secretary, to the General
case of the Office of the Secretary, the Counsel for review of that decision. A
General Counsel, extends such period. determination that access will not be
Where an extension is taken, the party granted or a record amended is not ad-
taking the appeal is promptly notified ministratively final for the purposes of
of such fact. judicial review unless it was made by
the Administrator concerned or his or
§ 10.45 Statement of disagreement. her delegee, or the General Counsel or
If a determination is made not to his or her delegee, as the case may be.
amend a record, the requester is in- Upon a determination that an appeal
92
will be denied, the requester is in- access to or amend a record under this
formed in writing of the reasons for the part is subject to concurrence by the
determination, and the names and ti- General Counsel or his or her delegate.
tles or positions of each person respon-
sible for the determination, and that
FR 23667, May 1, 1997]
the determination may be appealed to
the District Court of the United States
in the district in which the complain- Subpart G—Exemptions
ant resides, or has his or her principal
place of business, or in which the § 10.61 General exemptions.
records are located, or in the District (a) The Assistant Secretary for Ad-
of Columbia. ministration, with regard to the Inves-
(c) Each application for review must tigations Divisions; the Federal Avia-
be made in writing and must include tion Administrator, with regard to the
all information and arguments relied FAA’s Investigative Record System
upon by the person making the re- (DOT/FAA 815) and also with regard to
quest, and be submitted within 30 days the police functions of the National
of the date of the initial denial; excep- Capital Airport Police; and the Com-
tions to this time period are permitted mandant of U.S. Coast Guard, with re-
for good reason. gard to the Intelligence and Security
(d) Upon a determination that a re- Division, may exempt from any part of
quest for the correction of a record will the Act and this part except sub-
be denied, the requester is informed sections (b), (c)(1) and (2), (e)(4)(A)
that he may file a concise statement in through (F), (e)(6), (7), (9), (10), and (11),
accordance with § 10.45. and (i) of the Act, and implementing
(e) Each application for review must §§ 10.35, 10.23(a) and (b), 10.21(d)(1)
indicate that it is an appeal from a de- through (6), 10.81, 10.83, and 10.85, any
nial of a request made under the Pri- systems of records, or portions thereof,
vacy Act. The envelope in which the which they maintain which consist
application is sent should be marked wholly of;
prominently with the words ‘‘Privacy (1) Information compiled for the pur-
Act.’’ If these requirements are not pose of identifying individual criminal
met, the time limits described in § 10.43 offenders and alleged offenders and
do not begin to run until the applica- consisting only of identifying data and
tion has been identified by an employee notations of arrests, the nature and
of the Department as an application disposition of criminal charges, sen-
under the Privacy Act and has been re- tencing, confinement, release, and pa-
ceived by the appropriate office. role and probation status;
(f) The Administrator concerned, or
(2) Information compiled for the pur-
the General Counsel, as the case may
pose of a criminal investigation, in-
be, may require the person making the
cluding reports of informants and in-
request to furnish additional informa-
vestigators, and associated with an
tion, or proof of factual allegations,
identifiable individual; or
and may order other proceedings ap-
propriate in the circumstances. The de- (3) Reports identifiable to an indi-
cision of the Administrator concerned, vidual compiled at any stage of the
or the General Counsel, as the case process of enforcement of the criminal
may be, as to the availability of the laws from arrest or indictment through
record or whether to amend the record release from supervision.
is administratively final. (b) The requirements (including gen-
(g) The decision by the Adminis- eral notice) of sections 553(b)(1), (2) and
trator concerned, or the General Coun- (3), and (c) and (e) of title 5, United
sel, as the case may be, not to disclose States Code, will be met by publication
a record under this part is considered a in appendix A to this part, which must,
determination for the purposes of sec- at a minimum, specify:
tion 552a(g) of title 5, United States (1) The name of the system; and
Code, ‘‘Civil Remedies.’’ (2) The specific provisions of the Act
(h) Any final decision by an Adminis- from which the system is to be exempt-
trator or his/her delegate not to grant ed and the reasons therefor.
93
(c) Any decision to exempt a system the President of the United States or
of records under this section is subject other individuals pursuant to section
to concurrence by the General Counsel. 3056 of title 18, United States Code;
(d) Any person may petition the Sec- (4) Records required by statute to be
retary in accordance with the provi- maintained and used solely as statis-
sions of part 5 of this title, to institute tical records;
a rulemaking proceeding for the (5) Investigatory material compiled
amendment or repeal of any exemp- solely for the purpose of determining
tions established under this section. suitability, eligibility, or qualifica-
[45 FR 8993, Feb. 11, 1980, as amended at 58 tions for Federal civilian employment,
FR 67697, Dec. 22, 1993] military service, Federal contracts, or
access to classified information, but
§ 10.63 Specific exemptions. only to the extent that the disclosure
The Secretary or his or her delegee, of such material would reveal the iden-
in the case of the Office of the Sec- tity of a source who furnished informa-
retary; or the Administrator or his or tion to the Government under an ex-
deluge, in the case of an operating ad- press promise that the identity of the
ministration; or the Inspector General source would be held in confidence, or,
or his or her deluge, in the case of the prior to September 27, 1975, the effec-
Office of Inspector General, may ex- tive date of the Privacy Act of 1974,
empt any system of records that is under an implied promise that the
maintained by the Office of the Sec- identity of the source would be held in
retary, an operating administration, or confidence;
the Office of Inspector General, as the (6) Testing or examination material
case may be, from subsections (c)(3), used solely to determine individual
(d), (e)(1), (e)(4)(G), (H), and (I), and (f) qualifications for appointment or pro-
of the Act and implementing §§ 10.23(c); motion in the Federal service the dis-
10.35(b); 10.41; 10.43; 10.45; 10.21(a) and closure of which would compromise the
10.21(d)(6), (7), and (8), under the fol- objectivity or fairness of the testing or
lowing conditions: examination process; or
(a) The system of records must con- (7) Evaluation material used to deter-
sist of: mine potential for promotion in the
(1) Records subject to the provisions armed services, but only to the extent
of section 552(b)(1) of title 5, United that the disclosure of such material
States Code; would reveal the identity of a source
(2) Investigatory material compiled who furnished information to the Gov-
for law enforcement purposes, other ernment under an express promise that
than material within the scope of the identity of the source would be
§ 10.61(a)(2): Provided, however, That if held in confidence, or, prior to the ef-
any individual is denied any right, fective date of this section, under an
privilege, or benefit to which that indi- implied promise that the identity of
vidual would otherwise be entitled by the source would be held in confidence.
Federal law, or for which that indi- (b) The requirements (including gen-
vidual would otherwise be eligible, as a eral notice) of sections 553 (b) (1), (2)
result of the maintenance of such ma- and (3), and (c) and (e) of title 5, United
terial, such material is provided to States Code, will be met by publication
such individual, except to the extent in appendix A to this part, which must,
that the disclosure of such material at a minimum, specify:
would reveal the identity of a source (1) The name of the systems; and
who furnished information to the Gov- (2) The specific provisions of the Act
ernment under an express promise that from which the system is to be exempt-
the identity of the source would be ed and the reasons therefor.
held in confidence, or, prior to Sep- (c) Any decision to exempt a system
tember 27, 1975, the effective date of of records under this section is subject
the Privacy Act of 1974, under an im- to the concurrence of the General
plied promise that the identity of the Counsel.
source would be held in confidence; (d) Any person may petition the Sec-
(3) Records maintained in connection retary in accordance with the provi-
with providing protective services to sions of 49 CFR part 5, to institute a
94
rulemaking for the amendment or re- § 10.77 Services performed without

peal of any exemptions established charge.
under this section. (a) No fee is charged for time spent in
[45 FR 8993, Feb. 11, 1980, as amended at 62 searching for records or reviewing or
FR 23667, May 1, 1997] preparing correspondence related to
records subject to this part.
Subpart H—Fees (b) No fee is charged for documents
furnished in response to:
§ 10.71 General. (1) A request from an employee or
former employee of the Department for
This subpart prescribes fees for serv-
copies of personnel records of the em-
ices performed for the public under this
ployee;
part by the Department.
(2) A request from a Member of Con-
§ 10.73 Payment of fees. gress for official use;
(3) A request from a State, territory,
The fees prescribed in this subpart U.S. possession, county or municipal
may be paid by check, draft, or postal government, or an agency thereof;
money order payable to the Treasury (4) A request from a court that will
of the United States. serve as a substitute for the personal
court appearance of an officer or em-
§ 10.75 Fee schedule.
ployee of the Department;
(a) Copies of documents by photocopy or similar
method: (5) A request from a foreign govern-
Each page not larger than 11×17 inches: ment or an agency thereof, or an inter-
First page .................................................... $.25 national organization.
Each page ................................................... .05 (c) Documents are furnished without
(b) Copies of documents by typewriter: Each page .. 2.00
charge or at a reduced charge, if the
(c) Certified copies of documents:
(1) With Department of Transportation seal ....... 3.00 Assistant Secretary of Administration
(2) True copy, without seal ................................. 1.00 or the Administrator concerned, as the
(d) Photographs: case may be, determines that waiver or
(1) Black and white print (from negative) ........... 1.25 reduction of the fee is in the public in-
(2) Black and white print (from print) ................. 3.15 terest, because furnishing the informa-
(3) Color print (from negative) ............................ 3.50
(4) Color print (from print) .................................. 6.25
tion can be considered as primarily
(e) Duplicate data tapes—each reel of tape or frac- benefiting the general public.
tion thereof ............................................................. 36.00 (d) When records are maintained in
computer-readable form rather than
The applicant must furnish the nec- human-readable form, one printed copy
essary number of blank magnetic is made available which has been trans-
tapes. The tapes must be compatible lated to human-readable form without
for use in the supplier’s computer sys- a charge for translation but in accord-
tem, 1⁄2 inch wide and 2,400 feet long, ance with § 10.75(g), regarding computer
and must be capable of recording data line-printed charges.
at a density of 556 or 800 characters per
inch. Unless otherwise designated, the
tapes will be recorded at 556 CPI den-
Subpart I—Criminal Penalties
sity. The Department of Transpor- § 10.81 Improper disclosure.
tation is not responsible for damaged
tape. However, if the applicant fur- Any officer or employee of the De-
nishes a replacement for a damaged partment who by virtue of his or her
tape, the duplication process is com- employment or official position, has
pleted at no additional charge. possession of, or access to, agency
records which contain individually
(f) Microreproduction fees are as follows:
identifiable information the disclosure
(1) Microfilm copies, each 100 foot roll or less .. $3.75
(2) Microfiche copies, each standard size sheet of which is prohibited by this part and
(4″×6″ containing up to 65 frames) ................ .15 who knowing that disclosure of the
(3) Apertune card to hard copy, each copy ....... .50 specific material is so prohibited, will-
(4) 16mm microfilm to hard copy: fully discloses the material in any
First .............................................................. .25
Additional ..................................................... .07
manner to any person or agency not
(g) Computerline printer output, each 1,000 lines or entitled to receive it, is guilty of a
fraction thereof ....................................................... 1.00 misdemeanor and fined not more than
95
$5,000 in accordance with 5 U.S.C. C. Law Enforcement Information System,

552a(i)(1). maintained by the Office of Law Enforce-
ment and Defense Operations, U.S. Coast
§ 10.83 Improper maintenance of Guard (DOT/CG 613).
records. D. Investigations and Security Investiga-
tive Case Systems, maintained by the Inves-
Any officer or employee of the De- tigations and Security Division, U.S. Coast
partment who willfully maintains a Guard (DOT/CG 611).
system of records without meeting the E. The Investigative Records System main-
notice requirements of § 10.21(d) of this tained by the Federal Aviation Administra-
tion regarding criminal investigations con-
part is guilty of a misdemeanor and ducted by offices of Investigations and Secu-
fined not more than $5,000 in accord- rity at headquarters and FAA Regional and
ance with 5 U.S.C. 552a(i)(2). Center Security Divisions (DOT/FAA 815).
F. Joint Maritime Intelligence Element
§ 10.85 Wrongfully obtaining records. (JMIE) Support System, maintained by the
Any person who knowingly and will- Operations Systems, Center, US Coast Guard
(DOT/CG 642).
fully requests or obtains any record These exemptions are justified for the fol-
concerning an individual from the De- lowing reasons:
partment under false pretenses is 1. From subsection (c)(3), because making
guilty of a misdemeanor and fined not available to a record subject the accounting
more than $5,000 in accordance with 5 of disclosures from records concerning him/
U.S.C. 552a(i)(3). her would reveal investigative interest by
not only DOT but also the recipient agency,
APPENDIX TO PART 10—EXEMPTIONS thereby permitting the record subject to
take appropriate measures to impede the in-
Part I. General Exemptions vestigation, as by destroying evidence, in-
timidating potential witnesses, fleeing the
Those portions of the following systems of area to avoid the thrust of the investigation,
records that consist of (a) Information com- etc.
piled for the purpose of identifying indi- 2. From subsections (d), (e)(4) (G) and (H),
vidual criminal offenders and alleged offend- (f), and (g), because granting an individual
ers and consisting only of identifying data access to investigative records, and granting
and notations of arrests, the nature and dis- him/her rights to amend/contest that infor-
position of criminal charges, sentencing, mation, interfere with the overall law en-
confinement, release, and parole and proba- forcement process by revealing a pending
tion status; (b) information compiled for the sensitive investigation, possibly identify a
purpose of a criminal investigation, includ- confidential source, disclose information
ing reports of informants and investigators, that would constitute an unwarranted inva-
and associated with an identifiable indi- sion of another individual’s personal privacy,
vidual; or (c) reports identifiable to an indi- reveal a sensitive investigative technique, or
vidual compiled at any stage of the process constitute a potential danger to the health
of enforcement of the criminal laws from ar- or safety of law enforcement personnel.
rest or indictment through release from su- 3. From subsection (e)(1), because it is
pervision, are exempt from all parts of 5 often impossible to determine relevancy or
U.S.C. 552a except subsections (b) (Condi- necessity of information in the early stages
tions of disclosure); (c) (1) and (2) (Account- of an investigation. The value of such infor-
ing of certain disclosures); (e)(4) (A) through mation is a question of judgement and tim-
(F) (Publication of existence and character ing: what appears relevant and necessary
of system); (e)(6) (Ensure records are accu- when collected may ultimately be evaluated
rate, relevant, timely, and complete before and viewed as irrelevant and unnecessary to
disclosure to person other than an agency an investigation. In addition, DOT may ob-
and other than pursuant to a Freedom of In- tain information concerning the violation of
formation Act request), (7) (Restrict record- laws other than those within the scope of its
keeping on First Amendment rights), (9) jurisdiction. In the interest of effective law
(Rules of conduct), (10) (Safeguards), and (11) enforcement, DOT should retain this infor-
(Routine use publication); and (i) (Criminal mation because it may aid in establishing
penalties): patterns of unlawful activity and provide
A. The Investigative Records System leads for other law enforcement agencies.
maintained by the Assistant Inspector Gen- Further, in obtaining evidence during an in-
eral for Investigations, Office of the Inspec- vestigation, information may be provided to
tor General, Office of the Secretary (DOT/ DOT that relates to matters incidental to
OST 100). the main purpose of the investigation but
B. Police Warrant Files and Central Files that may be pertinent to the investigative
maintained by the Federal Aviation Admin- jurisdiction of another agency. Such infor-
istration (DOT/FAA 807). mation cannot readily be identified.
96
Office of the Secretary of Transportation Pt. 10, App.
4. From subsection (e)(2), because in a law 7. U.S. Merchant Seaman’s Records (DOT/
enforcement investigation it is usually coun- CG 589), maintained by the Office of Mer-
terproductive to collect information to the chant Marine Safety, U.S. Coast Guard.
greatest extent practicable directly from the 8. Intelligence and Security Investigative
subject of the information. It is not always Case Systems (DOT/CG 611), maintained by
feasible to rely upon the subject of an inves- the Office of Operations, U.S. Coast Guard.
tigation as a source for information that 9. Port Security Case System (DOT/CG
may implicate him/her in illegal activities. 612), maintained by the Office of Operations,
In addition, collecting information directly U.S. Coast Guard.
from the subject could seriously compromise 10. DOT/NHTSA Investigations of Alleged
an investigation by prematurely revealing Misconduct or Conflict of Interest, main-
its nature and scope, or could provide the tained by the Associate Administrator for
subject with an opportunity to conceal Administration, National Highway Traffic
criminal activities, or intimidate potential Safety Administration (DOT/NHTSA 458).
sources, in order to avoid apprehension. 11. Investigations of Violations of Marine
Safety Laws (DOT/CG 587), maintained by
5. From subsection (e)(3), because pro-
the Office of Merchant Marine Safety, U.S.
viding such notice to the subject of an inves-
Coast Guard.
tigation, or to other individual sources, 12. Civil Aviation Security System (DOT/
could seriously compromise the investiga- FAA 813), maintained by the Office of Civil
tion by prematurely revealing its nature and Aviation Security Policy and Planning, Fed-
scope, or could inhibit cooperation, permit eral Aviation Administration.
the subject to evade apprehension, or cause 13. Law Enforcement Information System,
interference with undercover activities. maintained by the Office of Law Enforce-
ment and Defense Operations, U.S. Coast
Part II. Specific Exemptions
Guard (DOT/CG 613).
A. The following systems of records are ex- 14. Joint Maritime Intelligence Element
empt from subsection (c)(3) (Accounting of (JMIE) Support System, maintained by the
Certain Disclosures), (d) (Access to Records), Operations Systems, Center, US Coast Guard
(e)(4)(G), (H), and (I) (Agency Requirements), (DOT/CG 642).
and (f) (Agency Rules) of 5 USC 552a, to the 15. Vessel Identification System, main-
extent that they contain investigatory mate- tained by the Operations Systems Center,
rial compiled for law enforcement purposes U.S. Coast Guard (DOT/CG 590). The purpose
in accordance with 5 USC 552a(k)(2): of this exemption is to prevent persons who
1. Investigative Record System (DOT/FAA are the subjects of criminal investigations
815) maintained by the Federal Aviation Ad- from learning too early in the investigative
ministration at the Office of Civil Aviation process that they are subjects, what infor-
Security in Washington, DC; the FAA re- mation there is in Coast Guard files that in-
gional Civil Aviation Security Divisions; the dicates that they may have committed un-
Civil Aviation Security Division at the Mike lawful conduct, and who provided such infor-
Monroney Aeronautical Center in Oklahoma mation.
City, Oklahoma; the FAA Civil Aviation Se- 16. Marine Safety Information System,
curity Staff at the FAA Technical Center in maintained by the Operations Systems Cen-
Atlantic City, New Jersey; and the various ter, U.S. Coast Guard (DOT/CG 588). The pur-
Federal Records Centers located throughout pose of this exemption is to prevent persons
the country. who are the subjects of criminal investiga-
tions from learning too early in the inves-
2. FHWA Investigations Case File System,
tigative process that they are subjects, what
maintained by the Office of Program Review
information there is in Coast Guard files
and Investigations, Federal Highway Admin-
that indicates that they may have com-
istration (DOT/FHWA 214).
mitted unlawful conduct, and who provided
3. FHWA Motor Carrier Safety Proposed such information.
Civil and Criminal Enforcement Cases, main- 17. Suspected Unapproved Parts (SUP) Pro-
tained by the Bureau of Motor Carrier Safe- gram, maintained by the Federal Aviation
ty, Federal Highway Administration (DOT/ Administration (DOT/FAA 852).
FHWA 204). 18. Motor Carrier Management Information
4. Recreational Boating and Law Enforce- System (MCMIS), maintained by the Federal
ment Cases (DOT/CG 505), maintained by the Motor Carrier Safety Administration (DOT/
Office of Boating Safety, U.S. Coast Guard. FMCSA 001). These exemptions are justified
5. Port Safety Reporting System—Indi- for the following reasons:
vidual Violation Histories (DOT/CG 561), These exemptions are justified for the fol-
maintained by the Office of Marine Environ- lowing reasons:
ment and Systems, U.S. Coast Guard. 1. From subsection (c)(3), because making
6. Merchant Vessel Casualty Reporting available to a record subject the accounting
System (DOT/CG 590), maintained by the Of- of disclosures from records concerning him/
fice of Merchant Marine Safety, U.S. Coast her would reveal investigative interest by
Guard. not only DOT but also the recipient agency,
97
Pt. 10, App. 49 CFR Subtitle A (10–1–07 Edition)
thereby permitting the record subject to D. Those portions of the following systems
take appropriate measures to impede the in- of records consisting of investigatory mate-
vestigation, as by destroying evidence, in- rial compiled for the purpose of determining
timidating potential witnesses, fleeing the suitability, eligibility, or qualifications for
area to avoid the thrust of the investigation, Federal civilian employment, military serv-
etc. ice, or access to classified information or
2. From subsections (d), (e)(4)(G), (H), and used to determine potential for promotion in
(I), and (f), because granting an individual the armed services, are exempt from sections
access to investigative records, and granting (c)(3) (Accounting of Certain Disclosures), (d)
him/her access to investigative records with (Access to Records), (e)(4) (G), (H), and (I)
that information, could interfere with the (Agency Requirements), and (f) (Agency
overall law enforcement process by revealing Rules) of 5 U.S.C. 552a to the extent that dis-
a pending sensitive investigation, possibly closure of such material would reveal the
identify a confidential source, disclose infor- identity of a source who provided informa-
mation that would constitute an unwar- tion to the Government under an express or,
ranted invasion of another individual’s per- prior to September 27, 1975, an implied prom-
sonal privacy, reveal a sensitive investiga- ise of confidentiality (5 U.S.C. 552a(k) (5) and
tive technique, or constitute a potential dan- (7)):
ger to the health or safety of law enforce- 1. Investigative Records System, main-
ment personnel. tained by the Assistant Inspector General for
B. The following systems of records are ex- Investigations in the Office of the Inspector
empt from subsections (c)(3) (Accounting of General (DOT/OST 100).
Certain Disclosures) and (d) (Access to 2. Intelligence and Security Investigative
Records) of 5 U.S.C. 552a, in accordance with Case System (DOT/CG 611), maintained by
5 U.S.C. 552a(k)(2): the Office of Operations, U.S. Coast Guard.
1. General Air Transportation Records on
3. Officer Selection and Appointment Sys-
Individuals, maintained by various offices in
tem (DOT/CG 625), maintained by the Office
the Federal Aviation Administration (DOT/
of Personnel, U.S. Coast Guard.
FAA 847).
2. Investigative Records System, main- 4. Official Officer Service Records (DOT/CG
tained by the Assistant Inspector General for 626), maintained by the Office of Personnel,
Investigations in the Office of the Inspector U.S. Coast Guard.
General (DOT/OST 100). 5. Enlisted Recruiting Selection Record
These exemptions are justified for the fol- System maintained by the Office of Per-
lowing reasons: sonnel, U.S. Coast Guard.
1. From subsection (c)(3), because making 6. Officer, Enlisted, and Recruiting Selec-
available to a record subject the accounting tion Test Files (DOT/CG 628), maintained by
of disclosures from records concerning him/ the Office of Personnel, U.S. Coast Guard.
her would reveal investigative interest by 7. Enlisted Personnel Record System,
not only DOT but also the recipient agency, (DOT/CG 629), maintained by the Office of
thereby permitting the record subject to Personnel, U.S. Coast Guard.
take appropriate measures to impede the in- 8. Coast Guard Personnel Security Pro-
vestigation, as by destroying evidence, in- gram (DOT/CG 633), maintained by the Office
timidating potential witnesses, fleeing the of Personnel, U.S. Coast Guard.
area to avoid the thrust of the investigation, 9. Official Coast Guard Reserve Service
etc. Record System (DOT/CG 676), maintained by
2. From subsection (d), because granting an the Office of Reserve, U.S. Coast Guard.
individual access to investigative records 10. Investigative Record System, main-
could interfere with the overall law enforce- tained by the Federal Aviation Administra-
ment process by revealing a pending sen- tion at FAA Regional and Center Air Trans-
sitive investigation, possibly identify a con- portation Security Divisions; the Investiga-
fidential source, disclose information that tions and Security Division, Aeronautical
would constitute an unwarranted invasion of Center; and Office of Investigations and Se-
another individual’s personal privacy, reveal curity, Headquarters, Washington, D.C.
a sensitive investigative technique, or con- (DOT/FAA 815).
stitute a potential danger to the health or 11. Military Training and Education
safety of law enforcement personnel. Records (DOT/CG 622), maintained by the Of-
C. The system of records known as the fice of Personnel, U.S. Coast Guard.
Alaska Railroad Examination of Operating 12. Files pursuant to suitability for em-
Personnel, maintained by the Alaska Rail- ployment with National Highway Traffic
road, Federal Railroad Administration (DOT/ Safety Administration (DOT/NHTSA–457)
FRA 100), is exempt from the provisions of containing confidential investigatory re-
subsection (d) of 5 U.S.C. 552a. The release of ports.
these records would compromise their value The purpose of these exemptions is to pre-
as impartial measurement standards for ap- vent disclosure of the identities of sources
pointment and promotion within the Federal who provide information to the government
Service. concerning the suitability, eligibility, or
98
qualifications of individuals for Federal ci- U.S.C. 552a(b)(1) are exempt from subsections
vilian employment, contracts, access to clas- (c)(3) (Accounting of Certain Disclosures)
sified information, or appointment or pro- and (d) (Access to Records) of 5 U.S.C. 552a:
motion in the armed services, and who are 1. Investigative Record System (DOT/FAA
expressly or, prior to September 27, 1975, im- 815) maintained by the Federal Aviation Ad-
plied promised confidentiality (5 U.S.C. ministration at the Office of Civil Aviation
552a(k) (5) and (7)). Security in Washington, DC; the FAA re-
E. Those portions of the following systems gional Civil Aviation Security Divisions; the
of records consisting of testing or examina- Civil Aviation Security Division at the Mike
tion material used solely to determine indi- Monroney Aeronautical Center in Oklahoma
vidual qualifications for appointment or pro- City, Oklahoma; the FAA Civil Aviation Se-
motion in the Federal Service are exempt curity Staff at the FAA Technical Center in
from subsections (c)(3) (Accounting of Cer- Atlantic City, New Jersey; and the various
tain Disclosures), (d) (Access to Records), Federal Records Centers located throughout
(e)(4) (G), (H) and (I) (Agency Requirements), the country.
and (f) (Agency Rules) of 5 U.S.C. 552a: The purpose of these exemptions is to pre-
1. Officer, Enlisted and Recruiting Selec- vent the disclosure of material authorized to
tion Test Files (DOT/CG 628), maintained by be kept secret in the interest of national de-
the Office of Personnel, U.S. Coast Guard. fense or foreign policy, in accordance with 5
2. Official Coast Guard Reserve Service U.S.C. 552(b)(1) and 552a(k)(1).
Record System (DOT/CG 676), maintained by
the Office of Reserve, U.S. Coast Guard. [45 FR 8993, Feb. 11, 1980, as amended at 58
3. Military Training and Education FR 67697, Dec. 22, 1993; 59 FR 13662, Mar. 23,
Records (DOT/CG 622), maintained by the Of- 1994; 60 FR 43983, Aug. 24, 1995. Redesignated
fice of Personnel, U.S. Coast Guard. at 62 FR 23667, May 1, 1997, as amended at 63
4. Reference Files (DOT/NHTSA 457), main- FR 2172, Jan. 14, 1998; 63 FR 4197, Jan. 28,
tained by the National Highway Traffic Safe- 1998; 66 FR 20407, Apr. 23, 2001]
ty Administration personnel offices to deter-
mine fitness for employment prior to hiring.
The purpose of these exemptions is to pre- PART 11—PROTECTION OF HUMAN
serve the value of these records as impartial SUBJECTS
measurement standards for appointment and
promotion within the Federal service. Sec.
F. Those portions of the following systems 11.101 To what does this policy apply?
of records which consist of information prop- 11.102 Definitions.
erly classified in the interest of national de- 11.103 Assuring compliance with this pol-
fense or foreign policy in accordance with 5 icy—research conducted or supported by
U.S.C. 552(b)(1) are exempt from sections any Federal Department or Agency.
(c)(3) (Accounting of Certain Disclosures), (d) 11.104–11.106 [Reserved]
(Access to Records), (e)(4) (G), (H) and (I) 11.107 IRB membership.
(Agency Requirements), and (f) (Agency 11.108 IRB functions and operations.
Rules) of 5 U.S.C. 552a: 11.109 IRB review of research.
1. Investigative Record System maintained
11.110 Expedited review procedures for cer-
by the Assistant Inspector General for Inves-
tain kinds of research involving no more
tigations in the Office of the Inspector Gen-
than minimal risk, and for minor
eral (DOT/OST 100).
changes in approved research.
2. Personnel Security Records System,
11.111 Criteria for IRB approval of research.
maintained by the Office of Investigations
and Security, Office of the Secretary (DOT/ 11.112 Review by institution.
OST 016). 11.113 Suspension or termination of IRB ap-
3. Civil Aviation Security System (DOT/ proval of research.
FAA 813), maintained by the Office of Civil 11.114 Cooperative research.
Aviation Security, Federal Aviation Admin- 11.115 IRB records.
istration. 11.116 General requirements for informed
4. Joint Maritime Intelligence Element consent.
(JMIE) Support System, maintained by the 11.117 Documentation of informed consent.
Operations Systems Center, US Coast Guard 11.118 Applications and proposals lacking
(DOT/CG 642). definite plans for involvement of human
The purpose of these exemptions is to pre- subjects.
vent the disclosure of material authorized to 11.119 Research undertaken without the in-
be kept secret in the interest of national de- tention of involving human subjects.
fense or foreign policy, in accordance with 5 11.120 Evaluation and disposition of applica-
U.S.C. 552(b)(1) and 552a(k)(1). tions and proposals for research to be
G. Those portions of the following systems conducted or supported by a Federal De-
of records which consist of information prop- partment or Agency.
erly classified in the interest of national de- 11.121 [Reserved]
fense or foreign policy in accordance with 5 11.122 Use of Federal funds.
99
11.123 Early termination of research sup- (2) Research involving the use of edu-
port: Evaluation of applications and pro- cational tests (cognitive, diagnostic,
posals. aptitude, achievement), survey proce-
11.124 Conditions.
dures, interview procedures or observa-
AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v–1(b). tion of public behavior, unless:
SOURCE: 56 FR 28012, 28023, June 18, 1991, (i) Information obtained is recorded
unless otherwise noted. in such a manner that human subjects
can be identified, directly or through
§ 11.101 To what does this policy identifiers linked to the subjects; and
apply? (ii) Any disclosure of the human sub-
(a) Except as provided in paragraph jects’ responses outside the research
(b) of this section, this policy applies could reasonably place the subjects at
to all research involving human sub- risk of criminal or civil liability or be
jects conducted, supported or otherwise damaging to the subjects’ financial
subject to regulation by any federal de- standing, employability, or reputation.
partment or agency which takes appro- (3) Research involving the use of edu-
priate administrative action to make cational tests (cognitive, diagnostic,
the policy applicable to such research. aptitude, achievement), survey proce-
This includes research conducted by dures, interview procedures, or obser-
federal civilian employees or military vation of public behavior that is not
personnel, except that each department exempt under paragraph (b)(2) of this
or agency head may adopt such proce- section, if:
dural modifications as may be appro- (i) The human subjects are elected or
priate from an administrative stand- appointed public officials or candidates
point. It also includes research con- for public office; or (ii) federal stat-
ducted, supported, or otherwise subject ute(s) require(s) without exception that
to regulation by the federal govern- the confidentiality of the personally
ment outside the United States. identifiable information will be main-
(1) Research that is conducted or sup- tained throughout the research and
ported by a federal department or thereafter.
agency, whether or not it is regulated (4) Research, involving the collection
as defined in § 11.102(e), must comply or study of existing data, documents,
with all sections of this policy. records, pathological specimens, or di-
(2) Research that is neither con- agnostic specimens, if these sources are
ducted nor supported by a federal de- publicly available or if the information
partment or agency but is subject to is recorded by the investigator in such
regulation as defined in § 11.102(e) must a manner that subjects cannot be iden-
be reviewed and approved, in compli- tified, directly or through identifiers
ance with § 11.101, § 11.102, and § 11.107 linked to the subjects.
through § 11.117 of this policy, by an in- (5) Research and demonstration
stitutional review board (IRB) that op- projects which are conducted by or sub-
erates in accordance with the pertinent ject to the approval of department or
requirements of this policy. agency heads, and which are designed
(b) Unless otherwise required by de- to study, evaluate, or otherwise exam-
partment or agency heads, research ac- ine:
tivities in which the only involvement (i) Public benefit or service pro-
of human subjects will be in one or grams; (ii) procedures for obtaining
more of the following categories are benefits or services under those pro-
exempt from this policy: grams; (iii) possible changes in or al-
(1) Research conducted in established ternatives to those programs or proce-
or commonly accepted educational set- dures; or (iv) possible changes in meth-
tings, involving normal educational ods or levels of payment for benefits or
practices, such as (i) research on reg- services under those programs.
ular and special education instruc- (6) Taste and food quality evaluation
tional strategies, or (ii) research on the and consumer acceptance studies, (i) if
effectiveness of or the comparison wholesome foods without additives are
among instructional techniques, cur- consumed or (ii) if a food is consumed
ricula, or classroom management that contains a food ingredient at or
methods. below the level and for a use found to
100
be safe, or agricultural chemical or en- by statute, Executive Order, or the de-

vironmental contaminant at or below partment or agency head, notices of
the level found to be safe, by the Food these actions as they occur will be pub-
and Drug Administration or approved lished in the FEDERAL REGISTER or will
by the Environmental Protection be otherwise published as provided in
Agency or the Food Safety and Inspec- department or agency procedures.
tion Service of the U.S. Department of (i) Unless otherwise required by law,
Agriculture. department or agency heads may waive
(c) Department or agency heads re- the applicability of some or all of the
tain final judgment as to whether a provisions of this policy to specific re-
particular activity is covered by this search activities or classes of research
policy. activities otherwise covered by this
(d) Department or agency heads may policy. Except when otherwise required
require that specific research activities by statute or Executive Order, the de-
or classes of research activities con- partment or agency head shall forward
ducted, supported, or otherwise subject advance notices of these actions to the
to regulation by the department or Office for Human Research Protec-
agency but not otherwise covered by tions, Department of Health and
this policy, comply with some or all of Human Services (HHS), or any suc-
the requirements of this policy. cessor office, and shall also publish
(e) Compliance with this policy re- them in the FEDERAL REGISTER or in
quires compliance with pertinent fed- such other manner as provided in de-
eral laws or regulations which provide partment or agency procedures. 1
additional protections for human sub- [56 FR 28012, 28023, June 18, 1991; 56 FR 29756,
jects. June 28, 1991, as amended at 70 FR 36328,
(f) This policy does not affect any June 23, 2005]
state or local laws or regulations which
may otherwise be applicable and which § 11.102 Definitions.
provide additional protections for (a) Department or agency head means
human subjects. the head of any federal department or
(g) This policy does not affect any agency and any other officer or em-
foreign laws or regulations which may ployee of any department or agency to
otherwise be applicable and which pro- whom authority has been delegated.
vide additional protections to human (b) Institution means any public or
subjects of research. private entity or agency (including fed-
(h) When research covered by this eral, state, and other agencies).
policy takes place in foreign countries, (c) Legally authorized representative
procedures normally followed in the means an individual or judicial or
foreign countries to protect human other body authorized under applicable
subjects may differ from those set law to consent on behalf of a prospec-
forth in this policy. [An example is a tive subject to the subject’s participa-
foreign institution which complies tion in the procedure(s) involved in the
with guidelines consistent with the research.
World Medical Assembly Declaration
(Declaration of Helsinki amended 1989)
1 Institutions with HHS-approved assur-
issued either by sovereign states or by
ances on file will abide by provisions of title
an organization whose function for the 45 CFR part 46 subparts A–D. Some of the
protection of human research subjects other Departments and Agencies have incor-
is internationally recognized.] In these porated all provisions of title 45 CFR part 46
circumstances, if a department or into their policies and procedures as well.
agency head determines that the proce- However, the exemptions at 45 CFR 46.101(b)
dures prescribed by the institution af- do not apply to research involving prisoners,
ford protections that are at least subpart C. The exemption at 45 CFR
equivalent to those provided in this 46.101(b)(2), for research involving survey or
interview procedures or observation of public
policy, the department or agency head behavior, does not apply to research with
may approve the substitution of the children, subpart D, except for research in-
foreign procedures in lieu of the proce- volving observations of public behavior when
dural requirements provided in this the investigator(s) do not participate in the
policy. Except when otherwise required activities being observed.
101
(d) Research means a systematic in- investigator or associated with the in-
vestigation, including research devel- formation) in order for obtaining the
opment, testing and evaluation, de- information to constitute research in-
signed to develop or contribute to gen- volving human subjects.
eralizable knowledge. Activities which (g) IRB means an institutional review
meet this definition constitute re- board established in accord with and
search for purposes of this policy, for the purposes expressed in this pol-
whether or not they are conducted or icy.
supported under a program which is (h) IRB approval means the deter-
considered research for other purposes. mination of the IRB that the research
For example, some demonstration and
has been reviewed and may be con-
service programs may include research
ducted at an institution within the
activities.
constraints set forth by the IRB and by
(e) Research subject to regulation, and
similar terms are intended to encom- other institutional and federal require-
pass those research activities for which ments.
a federal department or agency has (i) Minimal risk means that the prob-
specific responsibility for regulating as ability and magnitude of harm or dis-
a research activity, (for example, In- comfort anticipated in the research are
vestigational New Drug requirements not greater in and of themselves than
administered by the Food and Drug Ad- those ordinarily encountered in daily
ministration). It does not include re- life or during the performance of rou-
search activities which are inciden- tine physical or psychological exami-
tally regulated by a federal department nations or tests.
or agency solely as part of the depart- (j) Certification means the official no-
ment’s or agency’s broader responsi- tification by the institution to the sup-
bility to regulate certain types of ac- porting department or agency, in ac-
tivities whether research or non-re- cordance with the requirements of this
search in nature (for example, Wage policy, that a research project or activ-
and Hour requirements administered ity involving human subjects has been
by the Department of Labor). reviewed and approved by an IRB in ac-
(f) Human subject means a living indi- cordance with an approved assurance.
vidual about whom an investigator
(whether professional or student) con- § 11.103 Assuring compliance with this
ducting research obtains policy—research conducted or sup-
(1) Data through intervention or ported by any Federal Department
or Agency.
interaction with the individual, or
(2) Identifiable private information. (a) Each institution engaged in re-
Intervention includes both physical pro- search which is covered by this policy
cedures by which data are gathered (for and which is conducted or supported by
example, venipuncture) and manipula- a federal department or agency shall
tions of the subject or the subject’s en- provide written assurance satisfactory
vironment that are performed for re- to the department or agency head that
search purposes. Interaction includes it will comply with the requirements
communication or interpersonal con- set forth in this policy. In lieu of re-
tact between investigator and subject. quiring submission of an assurance, in-
‘‘Private information’’ includes infor- dividual department or agency heads
mation about behavior that occurs in a shall accept the existence of a current
context in which an individual can rea- assurance, appropriate for the research
sonably expect that no observation or in question, on file with the Office for
recording is taking place, and informa- Human Research Protections, HHS, or
tion which has been provided for spe- any successor office, and approved for
cific purposes by an individual and federalwide use by that office. When
which the individual can reasonably the existence of an HHS-approved as-
expect will not be made public (for ex- surance is accepted in lieu of requiring
ample, a medical record). Private infor- submission of an assurance, reports
mation must be individually identifi- (except certification) required by this
able (i.e., the identity of the subject is policy to be made to department and
or may readily be ascertained by the agency heads shall also be made to the
102
Office for Human Research Protec- Office for Human Research Protec-
tions, HHS, or any successor office. tions, HHS, or any successor ofice.
(b) Departments and agencies will (4) Written procedures which the IRB
conduct or support research covered by will follow (i) for conducting its initial
this policy only if the institution has and continuing review of research and
an assurance approved as provided in for reporting its findings and actions to
this section, and only if the institution the investigator and the institution;
has certified to the department or (ii) for determining which projects re-
agency head that the research has been quire review more often than annually
reviewed and approved by an IRB pro- and which projects need verification
vided for in the assurance, and will be from sources other than the investiga-
subject to continuing review by the tors that no material changes have oc-
IRB. Assurances applicable to federally curred since previous IRB review; and
supported or conducted research shall (iii) for ensuring prompt reporting to
at a minimum include: the IRB of proposed changes in a re-
(1) A statement of principles gov- search activity, and for ensuring that
erning the institution in the discharge such changes in approved research,
of its responsibilities for protecting the during the period for which IRB ap-
rights and welfare of human subjects of proval has already been given, may not
research conducted at or sponsored by be initiated without IRB review and
the institution, regardless of whether approval except when necessary to
the research is subject to federal regu- eliminate apparent immediate hazards
lation. This may include an appro- to the subject.
priate existing code, declaration, or (5) Written procedures for ensuring
statement of ethical principles, or a prompt reporting to the IRB, appro-
statement formulated by the institu- priate institutional officials, and the
tion itself. This requirement does not department or agency head of (i) any
preempt provisions of this policy appli- unanticipated problems involving risks
cable to department- or agency-sup- to subjects or others or any serious or
ported or regulated research and need continuing noncompliance with this
not be applicable to any research ex- policy or the requirements or deter-
empted or waived under § 11.101 (b) or minations of the IRB and (ii) any sus-
(i). pension or termination of IRB ap-
(2) Designation of one or more IRBs proval.
established in accordance with the re- (c) The assurance shall be executed
quirements of this policy, and for by an individual authorized to act for
which provisions are made for meeting the institution and to assume on behalf
space and sufficient staff to support of the institution the obligations im-
the IRB’s review and recordkeeping du- posed by this policy and shall be filed
ties. in such form and manner as the depart-
(3) A list of IRB members identified ment or agency head prescribes.
by name; earned degrees; representa- (d) The department or agency head
tive capacity; indications of experience will evaluate all assurances submitted
such as board certifications, licenses, in accordance with this policy through
etc., sufficient to describe each mem- such officers and employees of the de-
ber’s chief anticipated contributions to partment or agency and such experts
IRB deliberations; and any employ- or consultants engaged for this purpose
ment or other relationship between as the department or agency head de-
each member and the institution; for termines to be appropriate. The depart-
example: full-time employee, part-time ment or agency head’s evaluation will
employee, member of governing panel take into consideration the adequacy
or board, stockholder, paid or unpaid of the proposed IRB in light of the an-
consultant. Changes in IRB member- ticipated scope of the institution’s re-
ship shall be reported to the depart- search activities and the types of sub-
ment or agency head, unless in accord ject populations likely to be involved,
with § 11.103(a) of this policy, the exist- the appropriateness of the proposed ini-
ence of an HHS-approved assurance is tial and continuing review procedures
accepted. In this case, change in IRB in light of the probable risks, and the
membership shall be reported to the size and complexity of the institution.
103
§§ 11.104–11.106 49 CFR Subtitle A (10–1–07 Edition)
(e) On the basis of this evaluation, munity attitudes, to promote respect

the department or agency head may for its advice and counsel in safe-
approve or disapprove the assurance, or guarding the rights and welfare of
enter into negotiations to develop an human subjects. In addition to pos-
approvable one. The department or sessing the professional competence
agency head may limit the period dur- necessary to review specific research
ing which any particular approved as- activities, the IRB shall be able to as-
surance or class of approved assurances certain the acceptability of proposed
shall remain effective or otherwise research in terms of institutional com-
condition or restrict approval. mitments and regulations, applicable
(f) Certification is required when the law, and standards of professional con-
research is supported by a federal deduct and practice. The IRB shall there-
partment or agency and not otherwise fore include persons knowledgeable in
exempted or waived under § 11.101 (b) or these areas. If an IRB regularly reviews
(i). An institution with an approved as- research that involves a vulnerable
surance shall certify that each applica- category of subjects, such as children,
tion or proposal for research covered prisoners, pregnant women, or handi-
by the assurance and by § 11.103 of this capped or mentally disabled persons,
Policy has been reviewed and approved consideration shall be given to the in-
by the IRB. Such certification must be clusion of one or more individuals who
submitted with the application or pro- are knowledgeable about and experi-
posal or by such later date as may be enced in working with these subjects.
prescribed by the department or agen- (b) Every nondiscriminatory effort
cy to which the application or proposal will be made to ensure that no IRB
is submitted. Under no condition shall consists entirely of men or entirely of
research covered by § 11.103 of the Pol- women, including the institution’s con-
icy be supported prior to receipt of the sideration of qualified persons of both
certification that the research has been sexes, so long as no selection is made
reviewed and approved by the IRB. In- to the IRB on the basis of gender. No
stitutions without an approved assur- IRB may consist entirely of members
ance covering the research shall certify of one profession.
within 30 days after receipt of a request (c) Each IRB shall include at least
for such a certification from the de- one member whose primary concerns
partment or agency, that the applica- are in scientific areas and at least one
tion or proposal has been approved by member whose primary concerns are in
the IRB. If the certification is not sub- nonscientific areas.
mitted within these time limits, the (d) Each IRB shall include at least
application or proposal may be re- one member who is not otherwise affili-
turned to the institution. ated with the institution and who is
(Approved by the Office of Management and not part of the immediate family of a
Budget under Control Number 0990–0260.) person who is affiliated with the insti-
tution.
[56 FR 28012, 28023, June 18, 1991; 56 FR 29756,
June 28, 1991, as amended at 70 FR 36328, (e) No IRB may have a member par-
June 23, 2005] ticipate in the IRB’s initial or con-
tinuing review of any project in which
§§ 11.104–11.106 [Reserved] the member has a conflicting interest,
except to provide information re-
§ 11.107 IRB membership. quested by the IRB.
(a) Each IRB shall have at least five (f) An IRB may, in its discretion, in-
members, with varying backgrounds to vite individuals with competence in
promote complete and adequate review special areas to assist in the review of
of research activities commonly con- issues which require expertise beyond
ducted by the institution. The IRB or in addition to that available on the
shall be sufficiently qualified through IRB. These individuals may not vote
the experience and expertise of its with the IRB.
members, and the diversity of the
members, including consideration of § 11.108 IRB functions and operations.
race, gender, and cultural backgrounds In order to fulfill the requirements of
and sensitivity to such issues as com- this policy each IRB shall:
104
(a) Follow written procedures in the § 11.110 Expedited review procedures

same detail as described in § 11.103(b)(4) for certain kinds of research involv-
and, to the extent required by, ing no more than minimal risk, and
§ 11.103(b)(5). for minor changes in approved re-
(b) Except when an expedited review search.
procedure is used (see § 11.110), review (a) The Secretary, HHS, has estab-
proposed research at convened meet- lished, and published as a Notice in the
ings at which a majority of the mem-
FEDERAL REGISTER, a list of categories
bers of the IRB are present, including
of research that may be reviewed by
at least one member whose primary
concerns are in nonscientific areas. In the IRB through an expedited review
order for the research to be approved, procedure. The list will be amended, as
it shall receive the approval of a ma- appropriate after consultation with
jority of those members present at the other departments and agencies,
meeting. through periodic republication by the
Secretary, HHS, in the FEDERAL REG-
§ 11.109 IRB review of research. ISTER. A copy of the list is available
(a) An IRB shall review and have au- from the Office for Human Research
thority to approve, require modifica- Protections, HHS, or any successor of-
tions in (to secure approval), or dis- fice.
approve all research activities covered (b) An IRB may use the expedited re-
by this policy. view procedure to review either or both
(b) An IRB shall require that infor- of the following:
mation given to subjects as part of in- (1) Some or all of the research ap-
formed consent is in accordance with pearing on the list and found by the re-
§ 11.116. The IRB may require that in- viewer(s) to involve no more than mini-
formation, in addition to that specifi-
mal risk,
cally mentioned in § 11.116, be given to
the subjects when in the IRB’s judg- (2) Minor changes in previously ap-
ment the information would meaning- proved research during the period (of
fully add to the protection of the rights one year or less) for which approval is
and welfare of subjects. authorized.
(c) An IRB shall require documenta- Under an expedited review procedure,
tion of informed consent or may waive the review may be carried out by the
documentation in accordance with IRB chairperson or by one or more ex-
§ 11.117.
perienced reviewers designated by the
(d) An IRB shall notify investigators
chairperson from among members of
and the institution in writing of its de-
cision to approve or disapprove the pro- the IRB. In reviewing the research, the
posed research activity, or of modifica- reviewers may exercise all of the au-
tions required to secure IRB approval thorities of the IRB except that the re-
of the research activity. If the IRB de- viewers may not disapprove the re-
cides to disapprove a research activity, search. A research activity may be dis-
it shall include in its written notifica- approved only after review in accord-
tion a statement of the reasons for its ance with the non-expedited procedure
decision and give the investigator an set forth in § 11.108(b).
opportunity to respond in person or in (c) Each IRB which uses an expedited
writing. review procedure shall adopt a method
(e) An IRB shall conduct continuing for keeping all members advised of re-
review of research covered by this pol- search proposals which have been ap-
icy at intervals appropriate to the de- proved under the procedure.
gree of risk, but not less than once per (d) The department or agency head
year, and shall have authority to ob-
may restrict, suspend, terminate, or
serve or have a third party observe the
choose not to authorize an institu-
consent process and the research.
tion’s or IRB’s use of the expedited re-
(Approved by the Office of Management and view procedure.
Budget under Control Number 0990–0260.)
[56 FR 28012, 28022, June 18, 1991, as amended
[56 FR 28012, 28022, June 18, 1991, as amended
at 70 FR 36328, June 23, 2005]

at 70 FR 36328, June 23, 2005]
105
§ 11.111 Criteria for IRB approval of of subjects and to maintain the con-
research. fidentiality of data.
(a) In order to approve research cov- (b) When some or all of the subjects
ered by this policy the IRB shall deter- are likely to be vulnerable to coercion
mine that all of the following require- or undue influence, such as children,
ments are satisfied: prisoners, pregnant women, mentally
(1) Risks to subjects are minimized: disabled persons, or economically or
(i) By using procedures which are con- educationally disadvantaged persons,
sistent with sound research design and additional safeguards have been in-
which do not unnecessarily expose sub- cluded in the study to protect the
jects to risk, and (ii) whenever appro- rights and welfare of these subjects.
priate, by using procedures already
being performed on the subjects for di- § 11.112 Review by institution.
agnostic or treatment purposes.
Research covered by this policy that
(2) Risks to subjects are reasonable
in relation to anticipated benefits, if has been approved by an IRB may be
any, to subjects, and the importance of subject to further appropriate review
the knowledge that may reasonably be and approval or disapproval by officials
expected to result. In evaluating risks of the institution. However, those offi-
and benefits, the IRB should consider cials may not approve the research if it
only those risks and benefits that may has not been approved by an IRB.
result from the research (as distin-
guished from risks and benefits of § 11.113 Suspension or termination of
therapies subjects would receive even if IRB approval of research.
not participating in the research). The An IRB shall have authority to sus-
IRB should not consider possible long- pend or terminate approval of research
range effects of applying knowledge that is not being conducted in accord-
gained in the research (for example, ance with the IRB’s requirements or
the possible effects of the research on that has been associated with unex-
public policy) as among those research pected serious harm to subjects. Any
risks that fall within the purview of its suspension or termination of approval
responsibility. shall include a statement of the rea-
(3) Selection of subjects is equitable. sons for the IRB’s action and shall be
In making this assessment the IRB reported promptly to the investigator,
should take into account the purposes appropriate institutional officials, and
of the research and the setting in the department or agency head.
which the research will be conducted
and should be particularly cognizant of (Approved by the Office of Management and
the special problems of research in- Budget under Control Number 0990–0260.)
volving vulnerable populations, such as [56 FR 28012, 28022, June 18, 1991, as amended
children, prisoners, pregnant women, at 70 FR 36328, June 23, 2005]
mentally disabled persons, or economi-
cally or educationally disadvantaged § 11.114 Cooperative research.
persons.
Cooperative research projects are
(4) Informed consent will be sought
those projects covered by this policy
from each prospective subject or the
which involve more than one institu-
subject’s legally authorized representa-
tive, in accordance with, and to the ex- tion. In the conduct of cooperative re-
tent required by § 11.116. search projects, each institution is re-
(5) Informed consent will be appro- sponsible for safeguarding the rights
priately documented, in accordance and welfare of human subjects and for
with, and to the extent required by complying with this policy. With the
§ 11.117. approval of the department or agency
(6) When appropriate, the research head, an institution participating in a
plan makes adequate provision for cooperative project may enter into a
monitoring the data collected to en- joint review arrangement, rely upon
sure the safety of subjects. the review of another qualified IRB, or
(7) When appropriate, there are ade- make similar arrangements for avoid-
quate provisions to protect the privacy ing duplication of effort.
106
§ 11.115 IRB records. resentative. An investigator shall seek

such consent only under circumstances
(a) An institution, or when appro-
that provide the prospective subject or
priate an IRB, shall prepare and main-
the representative sufficient oppor-
tain adequate documentation of IRB
tunity to consider whether or not to
activities, including the following:
participate and that minimize the pos-
(1) Copies of all research proposals re-
sibility of coercion or undue influence.
viewed, scientific evaluations, if any,
The information that is given to the
that accompany the proposals, ap-
subject or the representative shall be
proved sample consent documents,
in language understandable to the sub-
progress reports submitted by inves-
ject or the representative. No informed
tigators, and reports of injuries to sub-
consent, whether oral or written, may
jects.
include any exculpatory language
(2) Minutes of IRB meetings which
through which the subject or the rep-
shall be in sufficient detail to show at-
resentative is made to waive or appear
tendance at the meetings; actions
to waive any of the subject’s legal
taken by the IRB; the vote on these ac-
rights, or releases or appears to release
tions including the number of members
the investigator, the sponsor, the insti-
voting for, against, and abstaining; the
tution or its agents from liability for
basis for requiring changes in or dis-
negligence.
approving research; and a written sum-
(a) Basic elements of informed con-
mary of the discussion of controverted
sent. Except as provided in paragraph
issues and their resolution.
(c) or (d) of this section, in seeking in-
(3) Records of continuing review ac-
formed consent the following informa-
tivities.
tion shall be provided to each subject:
(4) Copies of all correspondence be-
(1) A statement that the study in-
tween the IRB and the investigators.
volves research, an explanation of the
(5) A list of IRB members in the same
purposes of the research and the ex-
detail as described is § 11.103(b)(3).
pected duration of the subject’s partici-
(6) Written procedures for the IRB in
pation, a description of the procedures
the same detail as described in
to be followed, and identification of
§ 11.103(b)(4) and § 11.103(b)(5).
any procedures which are experi-
(7) Statements of significant new
mental;
findings provided to subjects, as re-
(2) A description of any reasonably
quired by § 11.116(b)(5).
foreseeable risks or discomforts to the
(b) The records required by this pol-
subject;
icy shall be retained for at least 3
(3) A description of any benefits to
years, and records relating to research
the subject or to others which may rea-
which is conducted shall be retained
sonably be expected from the research;
for at least 3 years after completion of
(4) A disclosure of appropriate alter-
the research. All records shall be acces-
native procedures or courses of treat-
sible for inspection and copying by au-
ment, if any, that might be advan-
thorized representatives of the depart-
tageous to the subject;
ment or agency at reasonable times
(5) A statement describing the ex-
and in a reasonable manner.
tent, if any, to which confidentiality of
(Approved by the Office of Management and records identifying the subject will be
Budget under Control Number 0990–0260.) maintained;
[56 FR 28012, 28022, June 18, 1991, as amended (6) For research involving more than
at 70 FR 36328, June 23, 2005] minimal risk, an explanation as to
whether any compensation and an ex-
§ 11.116 General requirements for in- planation as to whether any medical
formed consent. treatments are available if injury oc-
Except as provided elsewhere in this curs and, if so, what they consist of, or
policy, no investigator may involve a where further information may be ob-
human being as a subject in research tained;
covered by this policy unless the inves- (7) An explanation of whom to con-
tigator has obtained the legally effec- tact for answers to pertinent questions
tive informed consent of the subject or about the research and research sub-
the subject’s legally authorized rep- jects’ rights, and whom to contact in
107
the event of a research-related injury of payment for benefits or services

to the subject; and under those programs; and
(8) A statement that participation is (2) The research could not prac-
voluntary, refusal to participate will ticably be carried out without the
involve no penalty or loss of benefits to waiver or alteration.
which the subject is otherwise entitled, (d) An IRB may approve a consent
and the subject may discontinue par- procedure which does not include, or
ticipation at any time without penalty which alters, some or all of the ele-
or loss of benefits to which the subject ments of informed consent set forth in
is otherwise entitled. this section, or waive the requirements
(b) Additional elements of informed to obtain informed consent provided
consent. When appropriate, one or the IRB finds and documents that:
more of the following elements of in- (1) The research involves no more
formation shall also be provided to than minimal risk to the subjects;
each subject: (2) The waiver or alteration will not
(1) A statement that the particular adversely affect the rights and welfare
treatment or procedure may involve of the subjects;
risks to the subject (or to the embryo (3) The research could not prac-
or fetus, if the subject is or may be- ticably be carried out without the
come pregnant) which are currently waiver or alteration; and
unforeseeable; (4) Whenever appropriate, the sub-
(2) Anticipated circumstances under jects will be provided with additional
which the subject’s participation may pertinent information after participa-
be terminated by the investigator tion.
without regard to the subject’s con- (e) The informed consent require-
sent; ments in this policy are not intended
(3) Any additional costs to the sub- to preempt any applicable Federal,
ject that may result from participation state, or local laws which require addi-
in the research; tional information to be disclosed in
(4) The consequences of a subject’s order for informed consent to be le-
decision to withdraw from the research gally effective.
and procedures for orderly termination (f) Nothing in this policy is intended
of participation by the subject; to limit the authority of a physician to
(5) A statement that significant new provide emergency medical care, to the
findings developed during the course of extent the physician is permitted to do
the research which may relate to the so under applicable Federal, state, or
subject’s willingness to continue par- local law.
ticipation will be provided to the sub-
ject; and (Approved by the Office of Management and
(6) The approximate number of sub- Budget under Control Number 0990–0260.)
jects involved in the study. [56 FR 28012, 28022, June 18, 1991, as amended
(c) An IRB may approve a consent at 70 FR 36328, June 23, 2005]
procedure which does not include, or
which alters, some or all of the ele- § 11.117 Documentation of informed
ments of informed consent set forth consent.
above, or waive the requirement to ob- (a) Except as provided in paragraph
tain informed consent provided the IRB (c) of this section, informed consent
finds and documents that: shall be documented by the use of a
(1) The research or demonstration written consent form approved by the
project is to be conducted by or subject IRB and signed by the subject or the
to the approval of state or local gov- subject’s legally authorized representa-
ernment officials and is designed to tive. A copy shall be given to the per-
study, evaluate, or otherwise examine: son signing the form.
(i) public benefit of service programs; (b) Except as provided in paragraph
(ii) procedures for obtaining benefits or (c) of this section, the consent form
services under those programs; (iii) may be either of the following:
possible changes in or alternatives to (1) A written consent document that
those programs or procedures; or (iv) embodies the elements of informed
possible changes in methods or levels consent required by § 11.116. This form
108
may be read to the subject or the sub- tracts are submitted to departments or
ject’s legally authorized representa- agencies with the knowledge that sub-
tive, but in any event, the investigator jects may be involved within the period
shall give either the subject or the rep- of support, but definite plans would not
resentative adequate opportunity to normally be set forth in the applica-
read it before it is signed; or tion or proposal. These include activi-
(2) A short form written consent doc- ties such as institutional type grants
ument stating that the elements of in- when selection of specific projects is
formed consent required by § 11.116 the institution’s responsibility; re-
have been presented orally to the sub- search training grants in which the ac-
ject or the subject’s legally authorized tivities involving subjects remain to be
representative. When this method is selected; and projects in which human
used, there shall be a witness to the subjects’ involvement will depend upon
oral presentation. Also, the IRB shall completion of instruments, prior ani-
approve a written summary of what is mal studies, or purification of com-
to be said to the subject or the rep- pounds. These applications need not be
resentative. Only the short form itself reviewed by an IRB before an award
is to be signed by the subject or the may be made. However, except for re-
representative. However, the witness search exempted or waived under
shall sign both the short form and a § 11.101 (b) or (i), no human subjects
copy of the summary, and the person may be involved in any project sup-
actually obtaining consent shall sign a ported by these awards until the
copy of the summary. A copy of the project has been reviewed and approved
summary shall be given to the subject by the IRB, as provided in this policy,
or the representative, in addition to a and certification submitted, by the in-
copy of the short form. stitution, to the department or agency.
(c) An IRB may waive the require-
ment for the investigator to obtain a § 11.119 Research undertaken without
signed consent form for some or all the intention of involving human
subjects.
subjects if it finds either:
(1) That the only record linking the In the event research is undertaken
subject and the research would be the without the intention of involving
consent document and the principal human subjects, but it is later pro-
risk would be potential harm resulting posed to involve human subjects in the
from a breach of confidentiality. Each research, the research shall first be re-
subject will be asked whether the sub- viewed and approved by an IRB, as pro-
ject wants documentation linking the vided in this policy, a certification sub-
subject with the research, and the submitted, by the institution, to the de-
ject’s wishes will govern; or partment or agency, and final approval
(2) That the research presents no given to the proposed change by the de-
more than minimal risk of harm to partment or agency.
subjects and involves no procedures for
§ 11.120 Evaluation and disposition of
which written consent is normally re- applications and proposals for re-
quired outside of the research context. search to be conducted or sup-
In cases in which the documentation ported by a Federal Department or
requirement is waived, the IRB may re- Agency.
quire the investigator to provide sub- The department or agency head will
jects with a written statement regard- evaluate all applications and proposals
ing the research. involving human subjects submitted to
(Approved by the Office of Management and the department or agency through such
Budget under Control Number 0990–0260.) officers and employees of the depart-
[56 FR 28012, 28022, June 18, 1991, as amended ment or agency and such experts and
at 70 FR 36328, June 23, 2005] consultants as the department or agen-
cy head determines to be appropriate.
§ 11.118 Applications and proposals This evaluation will take into consid-
lacking definite plans for involve- eration the risks to the subjects, the
ment of human subjects. adequacy of protection against these
Certain types of applications for risks, the potential benefits of the re-
grants, cooperative agreements, or con- search to the subjects and others, and
109
the importance of the knowledge PART 15—PROTECTION OF

gained or to be gained. SENSITIVE SECURITY INFORMATION
(b) On the basis of this evaluation,
the department or agency head may Sec.
approve or disapprove the application 15.1 Scope.
or proposal, or enter into negotiations 15.3 Terms used in this part.
to develop an approvable one. 15.5 Sensitive security information.
15.7 Covered persons.
§ 11.121 [Reserved] 15.9 Restrictions on the disclosure of SSI.
15.11 Persons with a need to know.
§ 11.122 Use of Federal funds. 15.13 Marking SSI.
15.15 SSI disclosed by DOT.
Federal funds administered by a de-
15.17 Consequences of unauthorized disclo-
partment or agency may not be ex- sure of SSI.
pended for research involving human 15.19 Destruction of SSI.
subjects unless the requirements of
AUTHORITY: 49 U.S.C. 40119.
this policy have been satisfied.
SOURCE: 69 FR 28078, May 18, 2004, unless
§ 11.123 Early termination of research otherwise noted.
support: Evaluation of applications
and proposals. § 15.1 Scope.
(a) The department or agency head (a) Applicability. This part governs
may require that department or agency the maintenance, safeguarding, and
support for any project be terminated disclosure of records and information
or suspended in the manner prescribed that the Secretary of DOT has deter-
in applicable program requirements, mined to be Sensitive Security Infor-
when the department or agency head mation, as defined in § 15.5. This part
finds an institution has materially does not apply to the maintenance,
failed to comply with the terms of this safeguarding, or disclosure of classified
policy. national security information, as de-
(b) In making decisions about sup- fined by Executive Order 12968, or to
porting or approving applications or other sensitive unclassified informa-
proposals covered by this policy the de- tion that is not SSI, but that nonethe-
partment or agency head may take less may be exempt from public disclo-
into account, in addition to all other sure under the Freedom of Information
eligibility requirements and program Act. In addition, in the case of infor-
criteria, factors such as whether the mation that has been designated as
applicant has been subject to a termi- critical infrastructure information
nation or suspension under paragarph under section 214 of the Homeland Se-
(a) of this section and whether the ap- curity Act, the receipt, maintenance,
plicant or the person or persons who or disclosure of such information by a
would direct or has/have directed the Federal agency or employee is gov-
scientific and technical aspects of an erned by section 214 and any imple-
activity has/have, in the judgment of menting regulations, not by this part.
the department or agency head, mate- (b) Delegation. The authority of the
rially failed to discharge responsibility Secretary under this part may be fur-
for the protection of the rights and ther delegated within DOT.
welfare of human subjects (whether or
not the research was subject to Federal § 15.3 Terms used in this part.
regulation). In addition to the terms in § 15.3 of
this chapter, the following terms apply
§ 11.124 Conditions. in this part:
With respect to any research project Administrator means the Under Sec-
or any class of research projects the de- retary of Transportation for Security
partment or agency head may impose referred to in 49 U.S.C. 114(b), or his or
additional conditions prior to or at the her designee.
time of approval when in the judgment Coast Guard means the United States
of the department or agency head addi- Coast Guard.
tional conditions are necessary for the Covered person means any organiza-
protection of human subjects. tion, entity, individual, or other person
110
described in § 15.7. In the case of an in- (3) A transportation-related auto-

dividual, covered person includes any in- mated system or network for informa-
dividual applying for employment in a tion processing, control, and commu-
position that would be a covered per- nications.
son, or in training for such a position, Security screening means evaluating a
regardless of whether that individual is person or property to determine wheth-
receiving a wage, salary, or other form er either poses a threat to security.
of payment. Covered person includes a SSI means sensitive security infor-
person applying for certification or mation, as described in § 15.5.
other form of approval that, if granted, Threat image projection system means
would make the person a covered per- an evaluation tool that involves peri-
son described in § 15.7. odic presentation of fictional threat
DHS means the Department of Home- images to operators and is used in con-
land Security and any directorate, bu- nection with x-ray or explosives detec-
reau, or other component within the tion systems equipment.
Department of Homeland Security, in- TSA means the Transportation Secu-
cluding the United States Coast Guard. rity Administration.
DOT means the Department of Trans- Vulnerability assessment means any re-
portation and any operating adminis- view, audit, or other examination of
tration, entity, or office within the De- the security of a transportation infra-
partment of Transportation, including structure asset; airport; maritime fa-
the Saint Lawrence Seaway Develop- cility, port area, vessel, aircraft, train,
ment Corporation and the Bureau of commercial motor vehicle, or pipeline,
Transportation Statistics. or a transportation-related automated
Federal Flight Deck Officer means a system or network, to determine its
pilot participating in the Federal vulnerability to unlawful interference,
Flight Deck Officer Program under 49 whether during the conception, plan-
U.S.C. 44921 and implementing regula- ning, design, construction, operation,
tions. or decommissioning phase. A vulner-
Maritime facility means any facility as ability assessment may include proposed,
defined in 33 CFR part 101. recommended, or directed actions or
Record includes any means by which countermeasures to address security
information is preserved, irrespective concerns.
of format, including a book, paper,
drawing, map, recording, tape, film, § 15.5 Sensitive security information.
photograph, machine-readable mate-
rial, and any information stored in an (a) In general. In accordance with 49
electronic format. The term record also U.S.C. 40119(b)(1), SSI is information
includes any draft, proposed, or rec- obtained or developed in the conduct of
ommended change to any record. security activities, including research
Security contingency plan means a and development, the disclosure of
plan detailing response procedures to which the Secretary of DOT has deter-
address a transportation security inci- mined would—
dent, threat assessment, or specific (1) Constitute an unwarranted inva-
threat against transportation, includ- sion of privacy (including, but not lim-
ing details of preparation, response, ited to, information contained in any
mitigation, recovery, and reconstitu- personnel, medical, or similar file);
tion procedures, continuity of govern- (2) Reveal trade secrets or privileged
ment, continuity of transportation op- or confidential information obtained
erations, and crisis management. from any person; or
Security program means a program or (3) Be detrimental to transportation
plan and any amendments developed safety.
for the security of the following, in- (b) Information constituting SSI. Ex-
cluding any comments, instructions, or cept as otherwise provided in writing
implementing guidance: by the Secretary of DOT in the interest
(1) An airport, aircraft, or aviation of public safety or in furtherance of
cargo operation; transportation security, the following
(2) A maritime facility, vessel, or information, and records containing
port area; or such information, constitute SSI:
111
(1) Security programs and contingency (6) Security inspection or investigative

plans. Any security program or secu- information. (i) Details of any security
rity contingency plan issued, estab- inspection or investigation of an al-
lished, required, received, or approved leged violation of aviation or maritime
by DOT or DHS, including— transportation security requirements
(i) Any aircraft operator or airport of Federal law that could reveal a secu-
operator security program or security rity vulnerability, including the iden-
contingency plan under this chapter; tity of the Federal special agent or
(ii) Any vessel, maritime facility, or other Federal employee who conducted
port area security plan required or di- the inspection or audit.
rected under Federal law; (ii) In the case of inspections or in-
(iii) Any national or area security vestigations performed by TSA, this in-
plan prepared under 46 U.S.C. 70103; and cludes the following information as to
(iv) Any security incident response events that occurred within 12 months
plan established under 46 U.S.C. 70104. of the date of release of the informa-
(2) Security Directives. Any Security tion: the name of the airport where a
Directive or order— violation occurred, the airport identi-
(i) Issued by TSA under 49 CFR fier in the case number, a description
1542.303, 1544.305, or other authority; of the violation, the regulation alleg-
(ii) Issued by the Coast Guard under edly violated, and the identity of any
the Maritime Transportation Security aircraft operator in connection with
Act, 33 CFR part 6, or 33 U.S.C. 1221 et specific locations or specific security
seq. related to maritime security; or procedures. Such information will be
(iii) Any comments, instructions, and released after the relevant 12-month
implementing guidance pertaining period, except that TSA will not re-
thereto. lease the specific gate or other location
(3) Information Circulars. Any notice on an airport where an event occurred,
issued by DHS or DOT regarding a regardless of the amount of time that
threat to aviation or maritime trans- has passed since its occurrence. During
portation, including any—
the period within 12 months of the date
(i) Information Circular issued by
of release of the information, TSA may
TSA under 49 CFR 1542.303 or 1544.305,
release summaries of an aircraft opera-
or other authority; and
tor’s, but not an airport operator’s,
(ii) Navigation or Vessel Inspection
total security violations in a specified
Circular issued by the Coast Guard re-
time range without identifying specific
lated to maritime security.
violations or locations. Summaries
(4) Performance specifications. Any
may include total enforcement actions,
performance specification and any de-
total proposed civil penalty amounts,
scription of a test object or test proce-
number of cases opened, number of
dure, for—
cases referred to TSA or FAA counsel
(i) Any device used by the Federal
government or any other person pursu- for legal enforcement action, and num-
ant to any aviation or maritime trans- ber of cases closed.
portation security requirements of (7) Threat information. Any informa-
Federal law for the detection of any tion held by the Federal government
weapon, explosive, incendiary, or de- concerning threats against transpor-
structive device or substance; and tation or transportation systems and
(ii) Any communications equipment sources and methods used to gather or
used by the Federal government or any develop threat information, including
other person in carrying out or com- threats against cyber infrastructure.
plying with any aviation or maritime (8) Security measures. Specific details
transportation security requirements of aviation or maritime transportation
of Federal law. security measures, both operational
(5) Vulnerability assessments. Any vul- and technical, whether applied directly
nerability assessment directed, cre- by the Federal government or another
ated, held, funded, or approved by the person, including—
DOT, DHS, or that will be provided to (i) Security measures or protocols
DOT or DHS in support of a Federal se- recommended by the Federal govern-
curity program. ment;
112
(ii) Information concerning the de- restricted area of a maritime facility,

ployments, numbers, and operations of port area, or vessel or;
Coast Guard personnel engaged in mar- (B) Holding a position as a security
itime security duties and Federal Air screener employed by or under con-
Marshals, to the extent it is not classi- tract with the Federal government pur-
fied national security information; and suant to aviation or maritime trans-
(iii) Information concerning the de- portation security requirements of
ployments and operations of Federal Federal law, where such lists are aggre-
Flight Deck Officers, and numbers of gated by airport;
Federal Flight Deck Officers aggre- (C) Holding a position with the Coast
gated by aircraft operator. Guard responsible for conducting vul-
(9) Security screening information. The nerability assessments, security
following information regarding secu- boardings, or engaged in operations to
rity screening under aviation or mari- enforce maritime security require-
time transportation security requirements or conduct force protection;
ments of Federal law: (D) Holding a position as a Federal
(i) Any procedures, including selec- Air Marshal; or
tion criteria and any comments, in- (ii) The name or other identifying in-
structions, and implementing guidance formation that identifies a person as a
pertaining thereto, for screening of current, former, or applicant for Fed-
persons, accessible property, checked eral Flight Deck Officer.
baggage, U.S. mail, stores, and cargo, (12) Critical aviation or maritime infra-
that is conducted by the Federal gov- structure asset information. Any list
ernment or any other authorized per- identifying systems or assets, whether
son. physical or virtual, so vital to the avia-
(ii) Information and sources of infor- tion or maritime transportation sys-
mation used by a passenger or property tem that the incapacity or destruction
screening program or system, including of such assets would have a debili-
an automated screening system. tating impact on transportation secu-
rity, if the list is—
(iii) Detailed information about the
(i) Prepared by DHS or DOT; or
locations at which particular screening
(ii) Prepared by a State or local gov-
methods or equipment are used, only if
ernment agency and submitted by the
determined by TSA to be SSI.
agency to DHS or DOT.
(iv) Any security screener test and
(13) Systems security information. Any
scores of such tests.
information involving the security of
(v) Performance or testing data from operational or administrative data sys-
security equipment or screening systems operated by the Federal govern-
tems. ment that have been identified by the
(vi) Any electronic image shown on DOT or DHS as critical to aviation or
any screening equipment monitor, in- maritime transportation safety or se-
cluding threat images and descriptions curity, including automated informa-
of threat images for threat image pro- tion security procedures and systems,
jection systems. security inspections, and vulnerability
(10) Security training materials. information concerning those systems.
Records created or obtained for the (14) Confidential business information.
purpose of training persons employed (i) Solicited or unsolicited proposals
by, contracted with, or acting for the received by DHS or DOT, and negotia-
Federal government or another person tions arising therefrom, to perform
to carry out any aviation or maritime work pursuant to a grant, contract, co-
transportation security measures re- operative agreement, or other trans-
quired or recommended by DHS or action, but only to the extent that the
DOT. subject matter of the proposal relates
(11) Identifying information of certain to aviation or maritime transportation
transportation security personnel. (i) security measures;
Lists of the names or other identifying (ii) Trade secret information, includ-
information that identify persons as— ing information required or requested
(A) Having unescorted access to a se- by regulation or Security Directive,
cure area of an airport or a secure or obtained by DHS or DOT in carrying
113
out aviation or maritime transpor- (f) Each person participating in a na-

tation security responsibilities; and tional or area security committee es-
(iii) Commercial or financial infor- tablished under 46 U.S.C. 70112, or a
mation, including information required port security committee.
or requested by regulation or Security (g) Each industry trade association
Directive, obtained by DHS or DOT in that represents covered persons and
carrying out aviation or maritime has entered into a non-disclosure
transportation security responsibil- agreement with the DHS or DOT.
ities, but only if the source of the in- (h) DHS and DOT.
formation does not customarily dis- (i) Each person conducting research
close it to the public. and development activities that relate
(15) Research and development. Infor- to aviation or maritime transportation
mation obtained or developed in the security and are approved, accepted,
conduct of research related to aviation funded, recommended, or directed by
or maritime transportation security DHS or DOT.
activities, where such research is ap- (j) Each person who has access to
proved, accepted, funded, rec- SSI, as specified in § 15.11.
ommended, or directed by the DHS or (k) Each person employed by, con-
DOT, including research results. tracted to, or acting for a covered per-
(16) Other information. Any informa- son, including a grantee of DHS or
tion not otherwise described in this DOT, and including a person formerly
section that TSA determines is SSI in such position.
under 49 U.S.C. 114(s) or that the Sec- (l) Each person for which a vulner-
retary of DOT determines is SSI under ability assessment has been directed,
49 U.S.C. 40119. Upon the request of an- created, held, funded, or approved by
other Federal agency, the Secretary of the DOT, DHS, or that has prepared a
DOT may designate as SSI information vulnerability assessment that will be
not otherwise described in this section. provided to DOT or DHS in support of
(c) Loss of SSI designation. The Sec- a Federal security program.
retary of DOT may determine in writ- (m) Each person receiving SSI under
ing that information or records de- § 1520.15(d) or (e).
scribed in paragraph (b) of this section
do not constitute SSI because they no § 15.9 Restrictions on the disclosure of
longer meet the criteria set forth in SSI.
paragraph (a) of this section. (a) Duty to protect information. A cov-
ered person must—
§ 15.7 Covered persons. (1) Take reasonable steps to safe-
Persons subject to the requirements guard SSI in that person’s possession
of part 15 are: or control from unauthorized disclo-
(a) Each airport operator and aircraft sure. When a person is not in physical
operator subject to the requirements of possession of SSI, the person must
Subchapter C of this title. store it a secure container, such as a
(b) Each indirect air carrier, as de- locked desk or file cabinet or in a
fined in 49 CFR 1540.5. locked room.
(c) Each owner, charterer, or oper- (2) Disclose, or otherwise provide ac-
ator of a vessel, including foreign ves- cess to, SSI only to covered persons
sel owners, charterers, and operators, who have a need to know, unless other-
required to have a security plan under wise authorized in writing by TSA, the
Federal or International law. Coast Guard, or the Secretary of DOT.
(d) Each owner or operator of a mari- (3) Refer requests by other persons
time facility required to have a secu- for SSI to TSA or the applicable com-
rity plan under the Maritime Transpor- ponent or agency within DOT or DHS.
tation Security Act, (Pub. L. 107–295), (4) Mark SSI as specified in § 15.13.
46 U.S.C. 70101 et seq., 33 CFR part 6, or (5) Dispose of SSI as specified in
33 U.S.C. 1221 et seq. § 15.19.
(e) Each person performing the func- (b) Unmarked SSI. If a covered person
tion of a computer reservation system receives a record containing SSI that is
or global distribution system for air- not marked as specified in § 1520.13, the
line passenger information. covered person must—
114
(1) Mark the record as specified in mation is necessary for performance of

§ 15.13; and the employee’s official duties.
(2) Inform the sender of the record (2) A person acting in the perform-
that the record must be marked as ance of a contract with or grant from
specified in § 15.13. DHS or DOT has a need to know SSI if
(c) Duty to report unauthorized disclo- access to the information is necessary
sure. When a covered person becomes to performance of the contract or
aware that SSI has been released to un- grant.
authorized persons, the covered person (c) Background check. The Secretary
must promptly inform TSA or the ap- of DOT may make an individual’s ac-
plicable DOT or DHS component or cess to the SSI contingent upon satis-
agency. factory completion of a security back-
(d) Additional requirements for critical ground check and the imposition of
infrastructure information. In the case of procedures and requirements for safe-
information that is both SSI and has guarding SSI that are satisfactory to
been designated as critical infrastruc- the Secretary.
ture information under section 214 of (d) Need to know further limited by the
the Homeland Security Act, any cov- DHS or DOT. For some specific SSI,
ered person who is a Federal employee DHS or DOT may make a finding that
in possession of such information must only specific persons or classes of per-
comply with the disclosure restrictions sons have a need to know.
and other requirements applicable to [69 FR 28078, May 18, 2004, as amended at 70
such information under section 214 and FR 1381, Jan. 7, 2005]
any implementing regulations.
§ 15.13 Marking SSI.
§ 15.11 Persons with a need to know. (a) Marking of paper records. In the
(a) In general. A person has a need to case of paper records containing SSI, a
know SSI in each of the following cir- covered person must mark the record
cumstances: by placing the protective marking con-
(1) When the person requires access spicuously on the top, and the distribu-
to specific SSI to carry out transpor- tion limitation statement on the bot-
tation security activities approved, ac- tom, of—
cepted, funded, recommended, or di- (1) The outside of any front and back
rected by DHS or DOT. cover, including a binder cover or fold-
(2) When the person is in training to er, if the document has a front and
carry out transportation security ac- back cover;
tivities approved, accepted, funded, (2) Any title page; and
recommended, or directed by DHS or (3) Each page of the document.
DOT. (b) Protective marking. The protective
(3) When the information is necessary marking is: SENSITIVE SECURITY
for the person to supervise or otherwise INFORMATION.
manage individuals carrying out trans- (c) Distribution limitation statement.
portation security activities approved, The distribution limitation statement
accepted, funded, recommended, or di- is:
rected by the DHS or DOT. WARNING: This record contains Sensitive
(4) When the person needs the infor- Security Information that is controlled
mation to provide technical or legal under 49 CFR parts 15 and 1520. No part of
advice to a covered person regarding this record may be disclosed to persons with-
out a ‘‘need to know’’, as defined in 49 CFR
transportation security requirements
parts 15 and 1520, except with the written
of Federal law. permission of the Administrator of the
(5) When the person needs the infor- Transportation Security Administration or
mation to represent a covered person the Secretary of Transportation. Unauthor-
in connection with any judicial or ad- ized release may result in civil penalty or
ministrative proceeding regarding other action. For U.S. government agencies,
those requirements. public disclosure is governed by 5 U.S.C. 552
and 49 CFR parts 15 and 1520.
(b) Federal employees, contractors, and
grantees. (1) A Federal employee has a (d) Other types of records. In the case
need to know SSI if access to the infor- of non-paper records that contain SSI,
115
including motion picture films, video- (e) Other conditional disclosure. The
tape recordings, audio recording, and Secretary of DOT may authorize a con-
electronic and magnetic records, a cov- ditional disclosure of specific records
ered person must clearly and conspicu- or information that constitute SSI
ously mark the records with the pro- upon the written determination by the
tective marking and the distribution Secretary that disclosure of such
limitation statement such that the records or information, subject to such
viewer or listener is reasonably likely limitations and restrictions as the Sec-
to see or hear them when obtaining ac- retary may prescribe, would not be det-
cess to the contents of the record. rimental to transportation safety.
(f) Obligation to protect information.
§ 15.15 SSI disclosed by DOT. When an individual receives SSI pursu-
(a) In general. Except as otherwise ant to paragraph (d) or (e) of this sec-
provided in this section, and notwith- tion that individual becomes a covered
standing the Freedom of Information person under § 15.7 and is subject to the
obligations of a covered person under
Act (5 U.S.C. 552), the Privacy Act (5
this part.
U.S.C. 552a), and other laws, records
(g) No release under FOIA. When DOT
containing SSI are not available for
discloses SSI pursuant to paragraphs
public inspection or copying, nor does
(b) through (e) of this section, DOT
DOT release such records to persons
makes the disclosure for the sole pur-
without a need to know.
pose described in that paragraph. Such
(b) Disclosure under the Freedom of In- disclosure is not a public release of in-
formation Act and the Privacy Act. If a formation under the Freedom of Infor-
record contains both SSI and informa- mation Act.
tion that is not SSI, DOT, on a proper (h) Disclosure of Critical Infrastructure
Freedom of Information Act or Privacy Information. Disclosure of information
Act request, may disclose the record that is both SSI and has been des-
with the SSI redacted, provided the ignated as critical infrastructure infor-
record is not otherwise exempt from mation under section 214 of the Home-
disclosure under the Freedom of Infor- land Security Act is governed solely by
mation Act or Privacy Act. the requirements of section 214 and any
(c) Disclosures to committees of Con- implementing regulations.
gress and the General Accounting Office.
Nothing in this part precludes DOT § 15.17 Consequences of unauthorized
from disclosing SSI to a committee of disclosure of SSI.
Congress authorized to have the infor- Violation of this part is grounds for a
mation or to the Comptroller General, civil penalty and other enforcement or
or to any authorized representative of corrective action by DOT, and appro-
the Comptroller General. priate personnel actions for Federal
(d) Disclosure in enforcement pro- employees. Corrective action may in-
ceedings—(1) In general. The Secretary clude issuance of an order requiring re-
of DOT may provide SSI to a person in trieval of SSI to remedy unauthorized
the context of an administrative en- disclosure or an order to cease future
forcement proceeding when, in the sole unauthorized disclosure.
discretion of the Secretary, access to
the SSI is necessary for the person to § 15.19 Destruction of SSI.
prepare a response to allegations con- (a) DOT. Subject to the requirements
tained in a legal enforcement action of the Federal Records Act (5 U.S.C.
document issued by DOT. 105), including the duty to preserve
(2) Security background check. Prior to records containing documentation of a
providing SSI to a person under para- Federal agency’s policies, decisions,
graph (d)(1) of this section, the Sec- and essential transactions, DOT de-
retary of DOT may require the indi- stroys SSI when no longer needed to
vidual or, in the case of an entity, the carry out the agency’s function.
individuals representing the entity, (b) Other covered persons—(1) In gen-
and their counsel, to undergo and sat- eral. A covered person must destroy
isfy, in the judgment of the Secretary SSI completely to preclude recognition
of DOT, a security background check. or reconstruction of the information
116
when the covered person no longer governmental Review of Federal Pro-

needs the SSI to carry out transpor- grams,’’ issued July 14, 1982, and
tation security measures. amended on April 8, 1983. These regula-
(2) Exception. Paragraph (b)(1) of this tions also implement applicable provi-
section does not require a State or sions of section 401 of the Intergovern-
local government agency to destroy in- mental Cooperation Act of 1968 and sec-
formation that the agency is required tion 204 of the Demonstration Cities
to preserve under State or local law. and Metropolitan Development Act of
1966.
PART 17—INTERGOVERNMENTAL (b) These regulations are intended to
REVIEW OF DEPARTMENT OF foster an intergovernmental partner-
TRANSPORTATION PROGRAMS ship and a strengthened Federalism by
AND ACTIVITIES relying on state processes and on state,
areawide, regional and local coordina-
Sec. tion for review of proposed Federal fi-
17.1 What is the purpose of these regula-
tions?
nancial assistance and direct Federal
17.2 What definitions apply to these regula- development.
tions? (c) These regulations are intended to
17.3 What programs and activities of the aid the internal management of the De-
Department are subject to these regula- partment, and are not intended to cre-
tions?
17.4 [Reserved]
ate any right or benefit enforceable at
17.5 What is the Secretary’s obligation with law by a party against the Department
respect to Federal interagency coordina- or its officers.
tion?
17.6 What procedures apply to the selection § 17.2 What definitions apply to these
of programs and activities under these regulations?
regulations?
17.7 How does the Secretary communicate Department means the U.S. Depart-
with state and local officials concerning ment of Transportation.
the Department’s programs and activi- Order means Executive Order 12372,
ties? issued July 14, 1982, and amended April
17.8 How does the secretary provide states
an opportunity to comment on proposed 8, 1983, and titled ‘‘Intergovernmental
Federal financial assistance and direct Review of Federal Programs.’’
Federal development? Secretary means the Secretary of the
17.9 How does the Secretary receive and re- U.S. Department of Transportation or
spond to comments? an official or employee of the Depart-
17.10 How does the Secretary make efforts
to accommodate intergovernmental con- ment acting for the Secretary under a
cerns? delegation of authority.
17.11 What are the Secretary’s obligations State means any of the 50 states, the
in interstate situations? District of Columbia, the Common-
17.12 How may a state simplify, consolidate, wealth of Puerto Rico, the Common-
or substitute federally required state
plans?
wealth of the Northern Mariana Is-
17.13 May the Secretary waive any provi- lands, Guam, American Samoa, the
sion of these regulations? U.S. Virgin Islands, or the Trust Terri-
AUTHORITY: Executive Order 12372, July 14, tory of the Pacific Islands.
1982 (47 FR 30959), as amended April 8, 1983 (48
FR 15887): sec. 401 of the Intergovernmental § 17.3 What programs and activities of
Cooperation Act of 1968, as amended (31 the Department are subject to these
U.S.C. 6506); sec. 204 of the Demonstration regulations?
Cities and Metropolitan Development Act of The Secretary publishes in the FED-
1966, as amended (42 U.S.C. 3334).
ERAL REGISTER a list of the Depart-
SOURCE: 48 FR 29272, June 24, 1983, unless ment’s programs and activities that
otherwise noted.
are subject to these regulations and
§ 17.1 What is the purpose of these reg- identifies which of these are subject to
ulations? the requirements of section 204 of the
(a) The regulations in this part im- Demonstration Cities and Metropolitan
plement Executive Order 12372, ‘‘Inter- Development Act.
117
§ 17.4 [Reserved] planning cycle as is reasonably feasible

to explain specific plans and actions.
§ 17.5 What is the Secretary’s obliga- (b) The Secretary provides notice to
tion with respect to Federal inter- directly affected state, areawide, re-
agency coordination? gional, and local entities in a state of
The Secretary, to the extent prac- proposed Federal financial assistance
ticable, consults with and seeks advice or direct Federal development if:
from all other substantially affected (1) The state has not adopted a proc-
Federal departments and agencies in ess under the Order; or
an effort to assure full coordination be- (2) The assistance or development in-
tween such agencies and the Depart- volves a program or activity not se-
ment regarding programs and activi- lected for the state process.
ties covered under these regulations. This notice may be made by publica-
tion in the FEDERAL REGISTER or other
§ 17.6 What procedures apply to the se-
lection of programs and activities appropriate means, which the Depart-
under these regulations? ment in its discretion deems appro-
priate.
(a) A state may select any program
or activity published in the FEDERAL § 17.8 How does the Secretary provide
REGISTER in accordance with § 17.3 of states an opportunity to comment
this part for intergovernmental review on proposed Federal financial as-
under these regulations. Each state, sistance and direct Federal devel-
before selecting programs and activi- opment?
ties shall consult with local elected of- (a) Except in unusual circumstances,
ficials. the Secretary gives state processes or
(b) Each state that adopts a process state, areawide, regional and local offi-
shall notify the Secretary of the De- cials and entities at least:
partment’s programs and activities se- (1) [Reserved]
lected for that process. (2) 60 days from the date established
(c) A state may notify the Secretary by the Secretary to comment on pro-
of changes in its selections at any posed direct Federal development or
time. For each change, the state shall Federal financial assistance.
submit to the Secretary an assurance (b) This section also applies to com-
that the state has consulted with elect- ments in cases in which the review, co-
ed local elected officials regarding the ordination, and communication with
change. The Department may establish the Department have been delegated.
deadlines by which states are required (c) Applicants for programs and ac-
to inform the Secretary of changes in tivities subject to section 204 of the
their program selections. Demonstration Cities and Metropolitan
(d) The Secretary uses a state’s proc- Act shall allow areawide agencies a 60-
ess as soon as feasible, depending on in- day opportunity for review and com-
dividual programs, and activities, after ment.
the Secretary is notified of its selec-
tions. § 17.9 How does the Secretary receive
and respond to comments?
§ 17.7 How does the Secretary commu- (a) The Secretary follows the proce-
nicate with state and local officials dures in § 17.10 if:
concerning the Department’s pro- (1) A state office or official is des-
grams and activities? ignated to act as a single point of con-
(a) For those programs and activities tact between a state process and all
covered by a state process under § 17.6, federal agencies, and
the Secretary, to the extent permitted (2) That office or official transmits a
by law: state process recommendation for a
(1) Uses the state process to deter- program selected under § 17.6.
mine views of state and local elected (b)(1) The single point of contact is
officials; and, not obligated to transmit comments
(2) Communicates with state and from state, areawide, regional or local
local elected officials, through the officials and entities where there is no
state process, as early in a program state process recommendation.
118
(2) If a state process recommendation (1) The Department will not imple-
is transmitted by a single point of con- ment its decision for at least ten days
tact, all comments from state, after the single point of contact re-
areawide, regional, and local officials ceives the explanation; or
and entities that differ from it must (2) The Secretary has reviewed the
also be transmitted. decision and determined that, because
(c) If a state has not established a of unusual circumstances, the waiting
process, or is unable to submit a state period of at least ten days is not fea-
process recommendation, state, sible.
areawide, regional and local officials (c) For purposes of computing the
and entities may submit comments ei- waiting period under paragraph (b)(1)
ther to the applicant or to the Depart- of this section, a single point of con-
ment. tact is presumed to have received writ-
(d) If a program or activity is not se- ten notification 5 days after the date of
lected for a state process, state, mailing of such notification.
areawide, regional and local officials
§ 17.11 What are the Secretary’s obliga-
and entities may submit comments ei- tions in interstate situations?
ther to the applicant or to the Depart-
ment. In addition, if a state process (a) The Secretary is responsible for:
recommendation for a nonselected pro- (1) Identifying proposed federal finan-
gram or activity is transmitted to the cial assistance and direct federal devel-
Department by the single point of con- opment that have an impact on inter-
tact, the Secretary follows the proce- state areas;
dures of § 17.10 of this part. (2) Notifying appropriate officials
(e) The Secretary considers com- and entities in states which have
adopted a process and which select the
ments which do not constitute a state
Department’s program or activity.
process recommendation submitted
(3) Making efforts to identify and no-
under these regulations and for which
tify the affected state, areawide, re-
the Secretary is not required to apply
gional, and local officials and entities
the procedures of § 17.10 of this part,
in those states that have not adopted a
when such comments are provided by a
process under the Order or do not se-
single point of contact, by the appli-
lect the Department’s program or ac-
cant, or directly to the Department by
tivity;
a commenting party.
(4) Responding pursuant to § 17.10 of
§ 17.10 How does the Secretary make this part if the Secretary receives a
efforts to accommodate intergov- recommendation from a designated
ernmental concerns? areawide agency transmitted by a sin-
gle point of contact, in cases in which
(a) If a state process provides a state the review, coordination, and commu-
process recommendation to the Depart- nication with the Department have
ment through its single point of con- been delegated.
tact, the Secretary either:
(b) The Secretary uses the procedures
(1) Accepts the recommendation; in § 17.10 if a state process provides a
(2) Reaches a mutually agreeable so- state process recommendation to the
lution with the state process; or Department through a single point of
(3) Provides the single point of con- contact.
tact with a written explanation of the
decision, in such form as the Secretary § 17.12 How may a state simplify, con-
in his or her discretion deems appro- solidate, or substitute federally re-
priate. The Secretary may also supple- quired state plans?
ment the written explanation by pro- (a) As used in this section:
viding the explanation to the single (1) Simplify means that a state may
point of contact by telephone, other develop its own format, choose its own
telecommunication, or other means. submission date, and select the plan-
(b) In any explanation under para- ning period for a state plan.
graph (a)(3) of this section, the Sec- (2) Consolidate means that a state
retary informs the single point of con- may meet statutory and regulatory re-
tact that: quirements by combining two or more
119
plans into one document and that the 18.31 Real property.
state can select the format, submission 18.32 Equipment.
date, and planning period for the con- 18.33 Supplies.
18.34 Copyrights.
solidated plan. 18.35 Subawards to debarred and suspended
(3) Substitute means that a state may parties.
use a plan or other document that it 18.36 Procurement.
has developed for its own purposes to 18.37 Subgrants.
meet Federal requirements.
REPORTS, RECORDS, RETENTION, AND
(b) If not inconsistent with law, a ENFORCEMENT
state may decide to try to simplify,
consolidate, or substitute federally re- 18.40 Monitoring and reporting program
performance.
quired state plans without prior ap-
18.41 Financial reporting.
proval by the Secretary. 18.42 Retention and access requirements for
(c) The Secretary reviews each state records.
plan that a state has simplified, con- 18.43 Enforcememt.
solidated, or substituted and accepts 18.44 Termination for convenience.
the plan only if its contents meet fed-
eral requirements. Subpart D—After-The-Grant Requirements
18.50 Closeout.
§ 17.13 May the Secretary waive any 18.51 Later disallowances and adjustments.
provision of these regulations? 18.52 Collection of amounts due.
In an emergency, the Secretary may
waive any provision of these regula- Subpart E—Entitlements [Reserved]
tions.
AUTHORITY: 49 U.S.C. 322(a).
PART 18—UNIFORM ADMINISTRA- SOURCE: 53 FR 8086, 8087, Mar. 11, 1988, un-
less otherwise noted.
TIVE REQUIREMENTS FOR GRANTS
AND COOPERATIVE AGREE-
MENTS TO STATE AND LOCAL Subpart A—General
GOVERNMENTS § 18.1 Purpose and scope of this part.
This part establishes uniform admin-
Subpart A—General
istrative rules for Federal grants and
Sec. cooperative agreements and subawards
18.1 Purpose and scope of this part. to State, local and Indian tribal gov-
18.2 Scope of subpart. ernments.
18.3 Definitions.
18.4 Applicability. § 18.2 Scope of subpart.
18.5 Effect on other issuances.
18.6 Additions and exceptions. This subpart contains general rules
pertaining to this part and procedures
Subpart B—Pre-Award Requirements for control of exceptions from this
part.
18.10 Forms for applying for grants.
18.11 State plans. § 18.3 Definitions.
18.12 Special grant or subgrant conditions
for ‘‘high risk’’ grantees. As used in this part:
Accrued expenditures mean the
Subpart C—Post-Award Requirements charges incurred by the grantee during
a given period requiring the provision
FINANCIAL ADMINISTRATION
of funds for: (1) Goods and other tan-
18.20 Standards for financial management gible property received; (2) services
systems. performed by employees, contractors,
18.21 Payment. subgrantees, subcontractors, and other
18.22 Allowable costs.
18.23 Period of availability of funds.
payees; and (3) other amounts becom-
18.24 Matching or cost sharing. ing owed under programs for which no
18.25 Program income. current services or performance is re-
18.26 Non-Federal audits. quired, such as annuities, insurance
claims, and other benefit payments.
CHANGES, PROPERTY, AND SUBAWARDS Accrued income means the sum of: (1)
18.30 Changes. Earnings during a given period from
120
services performed by the grantee and Cost-type contract means a contract or

goods and other tangible property de- subcontract under a grant in which the
livered to purchasers, and (2) amounts contractor or subcontractor is paid on
becoming owed to the grantee for the basis of the costs it incurs, with or
which no current services or perform- without a fee.
ance is required by the grantee. Equipment means tangible, non-
Acquisition cost of an item of pur- expendable, personal property having a
chased equipment means the net in- useful life of more than one year and
voice unit price of the property includ- an acquisition cost of $5,000 or more
ing the cost of modifications, attach- per unit. A grantee may use its own
ments, accessories, or auxiliary appa- definition of equipment provided that
ratus necessary to make the property such definition would at least include
usable for the purpose for which it was all equipment defined above.
acquired. Other charges such as the Expenditure report means: (1) For non-
cost of installation, transportation, construction grants, the SF–269 ‘‘Fi-
taxes, duty or protective in-transit in- nancial Status Report’’ (or other equiv-
surance, shall be included or excluded alent report); (2) for construction
from the unit acquisition cost in ac- grants, the SF–271 ‘‘Outlay Report and
cordance with the grantee’s regular ac- Request for Reimbursement’’ (or other
counting practices. equivalent report).
Administrative requirements mean Federally recognized Indian tribal gov-
those matters common to grants in ernment means the governing body or a
general, such as financial management, governmental agency of any Indian
kinds and frequency of reports, and re- tribe, band, nation, or other organized
tention of records. These are distin- group or community (including any
guished from ‘‘programmatic’’ require- Native village as defined in section 3 of
ments, which concern matters that can the Alaska Native Claims Settlement
be treated only on a program-by-pro- Act, 85 Stat 688) certified by the Sec-
gram or grant-by-grant basis, such as retary of the Interior as eligible for the
kinds of activities that can be sup- special programs and services provided
ported by grants under a particular by him through the Bureau of Indian
program. Affairs.
Awarding agency means (1) with re- Government means a State or local
spect to a grant, the Federal agency, government or a federally recognized
and (2) with respect to a subgrant, the Indian tribal government.
party that awarded the subgrant. Grant means an award of financial as-
Cash contributions means the grant- sistance, including cooperative agree-
ee’s cash outlay, including the outlay ments, in the form of money, or prop-
of money contributed to the grantee or erty in lieu of money, by the Federal
subgrantee by other public agencies Government to an eligible grantee. The
and institutions, and private organiza- term does not include technical assist-
tions and individuals. When authorized ance which provides services instead of
by Federal legislation, Federal funds money, or other assistance in the form
received from other assistance agree- of revenue sharing, loans, loan guaran-
ments may be considered as grantee or tees, interest subsidies, insurance, or
subgrantee cash contributions. direct appropriations. Also, the term
Contract means (except as used in the does not include assistance, such as a
definitions for ‘‘grant’’ and ‘‘subgrant’’ fellowship or other lump sum award,
in this section and except where quali- which the grantee is not required to ac-
fied by ‘‘Federal’’) a procurement con- count for.
tract under a grant or subgrant, and Grantee means the government to
means a procurement subcontract which a grant is awarded and which is
under a contract. accountable for the use of the funds
Cost sharing or matching means the provided. The grantee is the entire
value of the third party in-kind con- legal entity even if only a particular
tributions and the portion of the costs component of the entity is designated
of a federally assisted project or pro- in the grant award document.
gram not borne by the Federal Govern- Local government means a county,
ment. municipality, city, town, township,
121
local public authority (including any Share, when referring to the awarding
public and Indian housing agency agency’s portion of real property,
under the United States Housing Act of equipment or supplies, means the same
1937) school district, special district, percentage as the awarding agency’s
intrastate district, council of govern- portion of the acquiring party’s total
ments (whether or not incorporated as costs under the grant to which the ac-
a nonprofit corporation under state quisition costs under the grant to
law), any other regional or interstate which the acquisition cost of the prop-
government entity, or any agency or erty was charged. Only costs are to be
instrumentality of a local government. counted—not the value of third-party
Obligations means the amounts of or- in-kind contributions.
ders placed, contracts and subgrants State means any of the several States
awarded, goods and services received, of the United States, the District of
and similar transactions during a given Columbia, the Commonwealth of Puer-
period that will require payment by to Rico, any territory or possession of
the grantee during the same or a future the United States, or any agency or in-
period. strumentality of a State exclusive of
OMB means the United States Office local governments. The term does not
of Management and Budget. include any public and Indian housing
Outlays (expenditures) mean charges agency under United States Housing
made to the project or program. They Act of 1937.
may be reported on a cash or accrual Subgrant means an award of financial
basis. For reports prepared on a cash assistance in the form of money, or
basis, outlays are the sum of actual property in lieu of money, made under
cash disbursement for direct charges a grant by a grantee to an eligible sub-
for goods and services, the amount of grantee. The term includes financial
indirect expense incurred, the value of assistance when provided by contrac-
in-kind contributions applied, and the tual legal agreement, but does not in-
amount of cash advances and payments clude procurement purchases, nor does
made to contractors and subgrantees. it include any form of assistance which
For reports prepared on an accrued ex- is excluded from the definition of
penditure basis, outlays are the sum of ‘‘grant’’ in this part.
actual cash disbursements, the amount Subgrantee means the government or
of indirect expense incurred, the value other legal entity to which a subgrant
of inkind contributions applied, and is awarded and which is accountable to
the new increase (or decrease) in the the grantee for the use of the funds
amounts owed by the grantee for goods provided.
and other property received, for serv- Supplies means all tangible personal
ices performed by employees, contrac- property other than ‘‘equipment’’ as
tors, subgrantees, subcontractors, and defined in this part.
other payees, and other amounts be- Suspension means depending on the
coming owed under programs for which context, either (1) temporary with-
no current services or performance are drawal of the authority to obligate
required, such as annuities, insurance grant funds pending corrective action
claims, and other benefit payments. by the grantee or subgrantee or a deci-
Percentage of completion method refers sion to terminate the grant, or (2) an
to a system under which payments are action taken by a suspending official in
made for construction work according accordance with agency regulations
to the percentage of completion of the implementing E.O. 12549 to imme-
work, rather than to the grantee’s cost diately exclude a person from partici-
incurred. pating in grant transactions for a pe-
Prior approval means documentation riod, pending completion of an inves-
evidencing consent prior to incurring tigation and such legal or debarment
specific cost. proceedings as may ensue.
Real property means land, including Termination means permanent with-
land improvements, structures and ap- drawal of the authority to obligate pre-
purtenances thereto, excluding mov- viously-awarded grant funds before
able machinery and equipment. that authority would otherwise expire.
122
It also means the voluntary relinquish- ventive Health and Health Services; Al-
ment of that authority by the grantee cohol, Drug Abuse, and Mental Health
or subgrantee. ‘‘Termination’’ does not Services; Maternal and Child Health
include: (1) Withdrawal of funds award- Services; Social Services; Low-Income
ed on the basis of the grantee’s under- Home Energy Assistance; States’ Pro-
estimate of the unobligated balance in gram of Community Development
a prior period; (2) Withdrawal of the Block Grants for Small Cities; and Ele-
unobligated balance as of the expira- mentary and Secondary Education
tion of a grant; (3) Refusal to extend a other than programs administered by
grant or award additional funds, to the Secretary of Education under title
make a competing or noncompeting V, subtitle D, chapter 2, Section 583—
continuation, renewal, extension, or the Secretary’s discretionary grant
supplemental award; or (4) voiding of a program) and titles I-III of the Job
grant upon determination that the Training Partnership Act of 1982 and
award was obtained fraudulently, or under the Public Health Services Act
was otherwise illegal or invalid from (Section 1921), Alcohol and Drug Abuse
inception. Treatment and Rehabilitation Block
Terms of a grant or subgrant mean all Grant and part C of title V, Mental
requirements of the grant or subgrant, Health Service for the Homeless Block
whether in statute, regulations, or the Grant).
award document. (3) Entitlement grants to carry out
Third party in-kind contributions mean the following programs of the Social
property or services which benefit a Security Act:
federally assisted project or program (i) Aid to Needy Families with De-
and which are contributed by non-Fed- pendent Children (title IV-A of the Act,
eral third parties without charge to the not including the Work Incentive Pro-
grantee, or a cost-type contractor gram (WIN) authorized by section
under the grant agreement. 402(a)19(G); HHS grants for WIN are
Unliquidated obligations for reports subject to this part);
prepared on a cash basis mean the (ii) Child Support Enforcement and
amount of obligations incurred by the Establishment of Paternity (title IV-D
grantee that has not been paid. For re- of the Act);
ports prepared on an accrued expendi- (iii) Foster Care and Adoption Assist-
ture basis, they represent the amount ance (title IV-E of the Act);
of obligations incurred by the grantee (iv) Aid to the Aged, Blind, and Dis-
for which an outlay has not been re- abled (titles I, X, XIV, and XVI-AABD
corded. of the Act); and
Unobligated balance means the por- (v) Medical Assistance (Medicaid)
tion of the funds authorized by the (title XIX of the Act) not including the
Federal agency that has not been obli- State Medicaid Fraud Control program
gated by the grantee and is determined authorized by section 1903(a)(6)(B).
by deducting the cumulative obliga- (4) Entitlement grants under the fol-
tions from the cumulative funds au- lowing programs of The National
thorized. School Lunch Act:
(i) School Lunch (section 4 of the
§ 18.4 Applicability. Act),
(a) General. Subparts A through D of (ii) Commodity Assistance (section 6
this part apply to all grants and sub- of the Act),
grants to governments, except where (iii) Special Meal Assistance (section
inconsistent with Federal statutes or 11 of the Act),
with regulations authorized in accord- (iv) Summer Food Service for Chil-
ance with the exception provision of dren (section 13 of the Act), and
§ 18.6, or: (v) Child Care Food Program (section
(1) Grants and subgrants to State and 17 of the Act).
local institutions of higher education (5) Entitlement grants under the fol-
or State and local hospitals. lowing programs of The Child Nutri-
(2) The block grants authorized by tion Act of 1966:
the Omnibus Budget Reconciliation (i) Special Milk (section 3 of the Act),
Act of 1981 (Community Services; Pre- and
123
(ii) School Breakfast (section 4 of the (c) Exceptions on a case-by-case basis

Act). and for subgrantees may be authorized
(6) Entitlement grants for State Ad- by the affected Federal agencies.
ministrative expenses under The Food (1) All case-by-case exceptions may
Stamp Act of 1977 (section 16 of the be authorized by the affected operating
Act). administrations or departmental of-
(7) A grant for an experimental, pilot, fices, with the concurrence of the As-
or demonstration project that is also sistant Secretary for Administration.
supported by a grant listed in para- (2) [Reserved]
graph (a)(3) of this section;
[53 FR 8086 and 8087, Mar. 11, 1988, as amend-
(8) Grant funds awarded under sub-
ed at 60 FR 19646, Apr. 19, 1995]
section 412(e) of the Immigration and
Nationality Act (8 U.S.C. 1522(e)) and
subsection 501(a) of the Refugee Edu- Subpart B—Pre-Award
cation Assistance Act of 1980 (Pub. L. Requirements
96–422, 94 Stat. 1809), for cash assist-
ance, medical assistance, and supple- § 18.10 Forms for applying for grants.
mental security income benefits to ref- (a) Scope. (1) This section prescribes
ugees and entrants and the administra- forms and instructions to be used by
tive costs of providing the assistance governmental organizations (except
and benefits; hospitals and institutions of higher
(9) Grants to local education agencies education operated by a government)
under 20 U.S.C. 236 through 241–1(a), in applying for grants. This section is
and 242 through 244 (portions of the Im- not applicable, however, to formula
pact Aid program), except for 20 U.S.C. grant programs which do not require
238(d)(2)(c) and 240(f) (Entitlement In- applicants to apply for funds on a
crease for Handicapped Children); and project basis.
(10) Payments under the Veterans (2) This section applies only to appli-
Administration’s State Home Per Diem cations to Federal agencies for grants,
Program (38 U.S.C. 641(a)). and is not required to be applied by
(b) Entitlement programs. Entitlement grantees in dealing with applicants for
programs enumerated above in § 18.4(a) subgrants. However, grantees are en-
(3) through (8) are subject to subpart E. couraged to avoid more detailed or bur-
densome application requirements for
§ 18.5 Effect on other issuances. subgrants.
All other grants administration pro- (3) Forms and procedures for Federal
visions of codified program regula- Highway Administration (FHWA)
tions, program manuals, handbooks projects are contained in 23 CFR part
and other nonregulatory materials 630, subpart B, 23 CFR part 420, subpart
which are inconsistent with this part A, and 49 CFR part 450.
are superseded, except to the extent (b) Authorized forms and instructions
they are required by statute, or au- for governmental organizations. (1) In ap-
thorized in accordance with the excep- plying for grants, applicants shall only
tion provision in § 18.6. use standard application forms or those
prescribed by the granting agency with
§ 18.6 Additions and exceptions. the approval of OMB under the Paper-
(a) For classes of grants and grantees work Reduction Act of 1980.
subject to this part, Federal agencies (2) Applicants are not required to
may not impose additional administra- submit more than the original and two
tive requirements except in codified copies of preapplications or applica-
regulations published in the FEDERAL tions.
REGISTER. (3) Applicants must follow all appli-
(b) Exceptions for classes of grants or cable instructions that bear OMB
grantees may be authorized only by clearance numbers. Federal agencies
OMB. may specify and describe the programs,
(1) All Departmental requests for ex- functions, or activities that will be
ceptions shall be processed through the used to plan, budget, and evaluate the
Assistant Secretary of Administration. work under a grant. Other supple-
(2) [Reserved] mentary instructions may be issued
124
only with the approval of OMB to the its effective date but need submit for
extent required under the Paperwork approval only the amended portions of
Reduction Act of 1980. For any stand- the plan.
ard form, except the SF–424 facesheet,
Federal agencies may shade out or in- § 18.12 Special grant or subgrant con-
struct the applicant to disregard any ditions for ‘‘high-risk’’ grantees.
line item that is not needed. (a) A grantee or subgrantee may be
(4) When a grantee applies for addi- considered ‘‘high risk’’ if an awarding
tional funding (such as a continuation
agency determines that a grantee or
or supplemental award) or amends a
previously submitted application, only subgrantee:
the affected pages need be submitted. (1) Has a history of unsatisfactory
Previously submitted pages with infor- performance, or
mation that is still current need not be (2) Is not financially stable, or
resubmitted. (3) Has a management system which
does not meet the management stand-
ed at 53 FR 8086, Mar. 11, 1988] ards set forth in this part, or
(4) Has not conformed to terms and
§ 18.11 State plans. conditions of previous awards, or
(a) Scope. The statutes for some pro- (5) Is otherwise not responsible; and
grams require States to submit plans if the awarding agency determines that
before receiving grants. Under regula- an award will be made, special condi-
tions implementing Executive Order tions and/or restrictions shall cor-
12372, ‘‘Intergovernmental Review of respond to the high risk condition and
Federal Programs,’’ States are allowed shall be included in the award.
to simplify, consolidate and substitute (b) Special conditions or restrictions
plans. This section contains additional may include:
provisions for plans that are subject to (1) Payment on a reimbursement
regulations implementing the Execu- basis;
tive order.
(2) Withholding authority to proceed
(b) Requirements. A State need meet
only Federal administrative or pro- to the next phase until receipt of evi-
grammatic requirements for a plan dence of acceptable performance within
that are in statutes or codified regula- a given funding period;
tions. (3) Requiring additional, more de-
(c) Assurances. In each plan the State tailed financial reports;
will include an assurance that the (4) Additional project monitoring;
State shall comply with all applicable (5) Requiring the grante or sub-
Federal statutes and regulations in ef- grantee to obtain technical or manage-
fect with respect to the periods for ment assistance; or
which it receives grant funding. For (6) Establishing additional prior ap-
this assurance and other assurances re- provals.
quired in the plan, the State may: (c) If an awarding agency decides to
(1) Cite by number the statutory or impose such conditions, the awarding
regulatory provisions requiring the as- official will notify the grantee or sub-
surances and affirm that it gives the
grantee as early as possible, in writing,
assurances required by those provi-
of:
sions,
(2) Repeat the assurance language in (1) The nature of the special condi-
the statutes or regulations, or tions/restrictions;
(3) Develop its own language to the (2) The reason(s) for imposing them;
extent permitted by law. (3) The corrective actions which must
(d) Amendments. A State will amend a be taken before they will be removed
plan whenever necessary to reflect: (1) and the time allowed for completing
New or revised Federal statutes or reg- the corrective actions; and
ulations or (2) a material change in any (4) The method of requesting recon-
State law, organization, policy, or sideration of the conditions/restric-
State agency operation. The State will tions imposed.
obtain approval for the amendment and
125
Subpart C—Post-Award ment. If unit cost data are required, es-

Requirements timates based on available documenta-
tion will be accepted whenever pos-
FINANCIAL ADMINISTRATION sible.
(5) Allowable cost. Applicable OMB
§ 18.20 Standards for financial man- cost principles, agency program regula-
agement systems.
tions, and the terms of grant and
(a) A State must expand and account subgrant agreements will be followed
for grant funds in accordance with in determining the reasonableness, al-
State laws and procedures for expend- lowability, and allocability of costs.
ing and accounting for its own funds.
(6) Source documentation. Accounting
Fiscal control and accounting proce-
records must be supported by such
dures of the State, as well as its sub-
source documentation as cancelled
grantees and cost-type contractors,
must be sufficient to— checks, paid bills, payrolls, time and
(1) Permit preparation of reports re- attendance records, contract and
quired by this part and the statutes au- subgrant award documents, etc.
thorizing the grant, and (7) Cash management. Procedures for
(2) Permit the tracing of funds to a minimizing the time elapsing between
level of expenditures adequate to es- the transfer of funds from the U.S.
tablish that such funds have not been Treasury and disbursement by grantees
used in violation of the restrictions and subgrantees must be followed
and prohibitions of applicable statutes. whenever advance payment procedures
(b) The financial management sys- are used. Grantees must establish rea-
tems of other grantees and subgrantees sonable procedures to ensure the re-
must meet the following standards: ceipt of reports on subgrantees’ cash
(1) Financial reporting. Accurate, cur- balances and cash disbursements in
rent, and complete disclosure of the fi- sufficient time to enable them to pre-
nancial results of financially assisted pare complete and accurate cash trans-
activities must be made in accordance actions reports to the awarding agen-
with the financial reporting require- cy. When advances are made by letter-
ments of the grant or subgrant. of-credit or electronic transfer of funds
(2) Accounting records. Grantees and
methods, the grantee must make
subgrantees must maintain records
drawdowns as close as possible to the
which adequately identify the source
and application of funds provided for fi- time of making disbursements. Grant-
nancially-assisted activities. These ees must monitor cash drawdowns by
records must contain information per- their subgrantees to assure that they
taining to grant or subgrant awards conform substantially to the same
and authorizations, obligations, unobli- standards of timing and amount as
gated balances, assets, liabilities, out- apply to advances to the grantees.
lays or expenditures, and income. (c) An awarding agency may review
(3) Internal control. Effective control the adequacy of the financial manage-
and accountability must be maintained ment system of any applicant for fi-
for all grant and subgrant cash, real nancial assistance as part of a
and personal property, and other as- preaward review or at any time subse-
sets. Grantees and subgrantees must quent to award.
adequately safeguard all such property (d) Certain Urban Mass Transpor-
and must assure that it is used solely tation Administration (UMTA) grant-
for authorized purposes. ees shall comply with the requirements
(4) Budget control. Actual expendi- of section 15 of the Urban Mass Trans-
tures or outlays must be compared portation (UMT) Act of 1964, as amend-
with budgeted amounts for each grant ed, as implemented by 49 CFR part 630,
or subgrant. Financial information
regarding a uniform system of ac-
must be related to performance or pro-
counts and records and a uniform re-
ductivity data, including the develop-
porting system for certain grantees.
ment of unit cost information when-
ever appropriate or specifically re- [53 FR 8086 and 8087, Mar. 11, 1988, as amend-
quired in the grant or subgrant agree- ed at 53 FR 8086, Mar. 11, 1988]
126
§ 18.21 Payment. ability of the grantee to provide timely

(a) Scope. This section prescribes the advances to the subgrantee to meet the
basic standard and the methods under subgrantee’s actual cash disburse-
which a Federal agency will make payments.
ments to grantees, and grantees will (f) Effect of program income, refunds,
make payments to subgrantees and and audit recoveries on payment. (1)
contractors. Grantees and subgrantees shall dis-
(b) Basic standard. Methods and pro- burse repayments to and interest
cedures for payment shall minimize earned on a revolving fund before re-
the time elapsing between the transfer questing additional cash payments for
of funds and disbursement by the the same activity.
grantee or subgrantee, in accordance (2) Except as provided in paragraph
with Treasury regulations at 31 CFR (f)(1) of this section, grantees and sub-
part 205. grantees shall disburse program in-
(c) Advances. Grantees and sub- come, rebates, refunds, contract settle-
grantees shall be paid in advance, pro- ments, audit recoveries and interest
vided they maintain or demonstrate earned on such funds before requesting
the willingness and ability to maintain additional cash payments.
procedures to minimize the time elaps- (g) Withholding payments. (1) Unless
ing between the transfer of the funds otherwise required by Federal statute,
and their disbursement by the grantee awarding agencies shall not withhold
or subgrantee. payments for proper charges incurred
(d) Reimbursement. Reimbursement by grantees or subgrantees unless—
shall be the preferred method when the (i) The grantee or subgrantee has
requirements in paragraph (c) of this failed to comply with grant award con-
section are not met. Grantees and sub- ditions or
grantees may also be paid by reim- (ii) The grantee or subgrantee is in-
bursement for any construction grant. debted to the United States.
Except as otherwise specified in regula- (2) Cash withheld for failure to com-
tion, Federal agencies shall not use the ply with grant award condition, but
percentage of completion method to without suspension of the grant, shall
pay construction grants. The grantee be released to the grantee upon subse-
or subgrantee may use that method to quent compliance. When a grant is sus-
pay its construction contractor, and if pended, payment adjustments will be
it does, the awarding agency’s pay- made in accordance with § 18.43(c).
ments to the grantee or subgrantee (3) A Federal agency shall not make
will be based on the grantee’s or sub- payment to grantees for amounts that
grantee’s actual rate of disbursement. are withheld by grantees or sub-
(e) Working capital advances. If a grantees from payment to contractors
grantee cannot meet the criteria for to assure satisfactory completion of
advance payments described in para- work. Payments shall be made by the
graph (c) of this section, and the Fed- Federal agency when the grantees or
eral agency has determined that reim- subgrantees actually disburse the with-
bursement is not feasible because the held funds to the contractors or to es-
grantee lacks sufficient working cap- crow accounts established to assure
ital, the awarding agency may provide satisfactory completion of work.
cash or a working capital advance (h) Cash depositories. (1) Consistent
basis. Under this procedure the award- with the national goal of expanding the
ing agency shall advance cash to the opportunities for minority business en-
grantee to cover its estimated dis- terprises, grantees and subgrantees are
bursement needs for an initial period encouraged to use minority banks (a
generally geared to the grantee’s dis- bank which is owned at least 50 percent
bursing cycle. Thereafter, the awarding by minority group members). A list of
agency shall reimburse the grantee for minority owned banks can be obtained
its actual cash disbursements. The from the Minority Business Develop-
working capital advance method of ment Agency, Department of Com-
payment shall not be used by grantees merce, Washington, DC 20230.
or subgrantees if the reason for using (2) A grantee or subgrantee shall
such method is the unwillingness or in- maintain a separate bank account only
127
when required by Federal-State agree- For the costs of a— Use the principles in—
ment.
For-profit organization other 48 CFR part 31. Contract
(i) Interest earned on advances. Except than a hospital and an or- Cost Principles and Proce-
for interest earned on advances of ganization named in OBM dures, or uniform cost ac-
funds exempt under the Intergovern- Circular A–122 as not sub- counting standards that
mental Cooperation Act (31 U.S.C. 6501 ject to that circular. comply with cost principles
acceptable to the Federal
et seq.) and the Indian Self-Determina- agency.
tion Act (23 U.S.C. 450), grantees and
subgrantees shall promptly, but at (c) The overhead cost principles of
least quarterly, remit interest earned OMB Circular A–87 shall not apply to
on advances to the Federal agency. The State highway agencies for FHWA
grantee or subgrantee may keep inter- funded grants.
est amounts up to $100 per year for ad- (d) Sections 3(1) and 9(p) of the UMT
ministrative expenses. Act of 1964, as amended, authorize the
(j) 23 U.S.C. 121 limits payments to Secretary to include in the net project
States for highway construction cost eligible for Federal assistance, the
projects to the Federal share of the amount of interest earned and payable
costs of construction incurred to date, on bonds issued by the State or local
plus the Federal share of the value of public body to the extent that the pro-
stockpiled materials. ceeds of such bonds have actually been
(k) Section 404 of the Surface Trans- expended in carrying out such project
portation Assistance Act of 1982 directs or portion thereof. Limitations are es-
the Secretary to reimburse States for
tablished in sections 3 and 9 of the
the Federal share of costs incurred.
UMT Act of 1964, as amended.
[53 FR 8086 and 8087, Mar. 11, 1988, as amend- (e) Section 9 of the UMT Act of 1964,
ed at 53 FR 8086, Mar. 11, 1988] as amended, authorizes grants to fi-
nance the leasing of facilities and
§ 18.22 Allowable costs.
equipment for use in mass transpor-
(a) Limitation on use of funds. Grant tation services provided leasing is
funds may be used only for: more cost effective than acquisition or
(1) The allowable costs of the grant- construction.
ees, subgrantees and cost-type contrac-
tors, including allowable costs in the [53 FR 8086 and 8087, Mar. 11, 1988, as amend-
ed at 53 FR 8086, Mar. 11, 1988]
form of payments to fixed-price con-
tractors; and § 18.23 Period of availability of funds.
(2) Reasonable fees or profit to cost-
type contractors but not any fee or (a) General. Where a funding period is
profit (or other increment above allow- specified, a grantee may charge to the
able costs) to the grantee or subaward only costs resulting from obliga-
grantee. tions of the funding period unless car-
(b) Applicable cost principles. For each ryover of unobligated balances is per-
kind of organization, there is a set of mitted, in which case the carryover
Federal principles for determining al- balances may be charged for costs re-
lowable costs. Allowable costs will be sulting from obligations of the subse-
determined in accordance with the cost quent funding period.
principles applicable to the organiza- (b) Liquidation of obligations. A grant-
tion incurring the costs. The following ee must liquidate all obligations in-
chart lists the kinds of organizations curred under the award not later than
and the applicable cost principles. 90 days after the end of the funding pe-
riod (or as specified in a program regu-
For the costs of a— Use the principles in— lation) to coincide with the submission
State, local or Indian tribal OMB Circular A–87. of the annual Financial Status Report
government. (SF–269). The Federal agency may ex-
Private nonprofit organization OMB Circular A–122. tend this deadline at the request of the
other than an (1) institution
of higher education, (2) grantee.
hospital, or (3) organization
named in OMB Circular A– § 18.24 Matching or cost sharing.
122 as not subject to that
circular. (a) Basic rule: Costs and contributions
Educational institutions. ......... OMB Circular A–21. acceptable. With the qualifications and
128
exceptions listed in paragraph (b) of count toward satisfying a cost sharing

this section, a matching or cost shar- or matching requirement unless other
ing requirement may be satisfied by ei- provisions of the grant agreement ex-
ther or both of the following: pressly permit this kind of income to
(1) Allowable costs incurred by the be used to meet the requirement.
grantee, subgrantee or a cost-type con- (6) Records. Costs and third party in-
tractor under the assistance agree- kind contributions counting towards
ment. This includes allowable costs satisfying a cost sharing or matching
borne by non-Federal grants or by oth- requirement must be verifiable from
ers cash donations from non-Federal the records of grantees and subgrantee
third parties. or cost-type contractors. These records
(2) The value of third party in-kind must show how the value placed on
contributions applicable to the period third party in-kind contributions was
to which the cost sharing or matching derived. To the extent feasible, volun-
requirements applies. teer services will be supported by the
(b) Qualifications and exceptions—(1) same methods that the organization
Costs borne by other Federal grant agree- uses to support the allocability of reg-
ments. Except as provided by Federal ular personnel costs.
statute, a cost sharing or matching re- (7) Special standards for third party in-
quirement may not be met by costs kind contributions. (i) Third party in-
borne by another Federal grant. This kind contributions count towards sat-
prohibition does not apply to income isfying a cost sharing or matching re-
earned by a grantee or subgrantee from quirement only where, if the party re-
a contract awarded under another Fed- ceiving the contributions were to pay
eral grant. for them, the payments would be allow-
(2) General revenue sharing. For the able costs.
purpose of this section, general revenue
(ii) Some third party in-kind con-
sharing funds distributed under 31
tributions are goods and services that,
U.S.C. 6702 are not considered Federal
if the grantee, subgrantee, or con-
grant funds.
tractor receiving the contribution had
(3) Cost or contributions counted to-
to pay for them, the payments would
wards other Federal costs-sharing require-
ments. Neither costs nor the values of have been an indirect costs. Costs shar-
third party in-kind contributions may ing or matching credit for such con-
count towards satisfying a cost sharing tributions shall be given only if the
or matching requirement of a grant grantee, subgrantee, or contractor has
agreement if they have been or will be established, along with its regular indi-
counted towards satisfying a cost shar- rect cost rate, a special rate for allo-
ing or matching requirement of an- cating to individual projects or pro-
other Federal grant agreement, a Fed- grams the value of the contributions.
eral procurement contract, or any (iii) A third party in-kind contribu-
other award of Federal funds. tion to a fixed-price contract may
(4) Costs financed by program income. count towards satisfying a cost sharing
Costs financed by program income, as or matching requirement only if it re-
defined in § 18.25, shall not count to- sults in:
wards satisfying a cost sharing or (A) An increase in the services or
matching requirement unless they are property provided under the contract
expressly permitted in the terms of the (without additional cost to the grantee
assistance agreement. (This use of gen- or subgrantee) or
eral program income is described in (B) A cost savings to the grantee or
§ 18.25(g).) subgrantee.
(5) Services or property financed by in- (iv) The values placed on third party
come earned by contractors. Contractors in-kind contributions for cost sharing
under a grant may earn income from or matching purposes will conform to
the activities carried out under the the rules in the succeeding sections of
contract in addition to the amounts this part. If a third party in-kind con-
earned from the party awarding the tribution is a type not treated in those
contract. No costs of services or prop- sections, the value placed upon it shall
erty supported by this income may be fair and reasonable.
129
(8) 23 U.S.C. 121(a) permits reimburse- are in a different line of work, para-
ment for actual construction cost in- graph (c)(1) of this section applies.
curred by States for highway construc- (3) Section 5(g) of the Department of
tion projects. Except for private dona- Transportation Act (49 U.S.C. 1654(g))
tions of right-of-way, contributions limits in-kind service contributions
and donations shall not be considered under the local Rail Service Assistance
State costs, and shall not be allowable Program to ‘‘the cash equivalent of
for matching purposes for highway con- State salaries for State public employ-
struction contracts. 23 U.S.C. 323 per- ees working in the State rail assistance
mits private donations of right-of-way program, but not including overhead
to be used for a State’s matching and general administrative costs.’’
share, and establishes procedures for (d) Valuation of third party donated
determining the fair market value of supplies and loaned equipment or space.
such donated right-of-way. (1) If a third party donates supplies,
(9) Section 4(a) of the UMT Act of the contribution will be valued at the
1964, as amended, provides that the market value of the supplies at the
Federal grant for any project to be as- time of donation.
sisted under section 3 of the UMT Act (2) If a third party donates the use of
of 1964, as amended, shall be in an equipment or space in a building but
amount equal to 75 percent of the net
retains title, the contribution will be
project costs. Net project cost is de-
valued at the fair rental rate of the
fined as that portion of the cost of the
equipment or space.
project which cannot be reasonably fi-
nanced from revenues. (e) Valuation of third party donated
equipment, buildings, and land. If a third
(10) Section 18(e) of the UMT Act of
party donates equipment, buildings, or
1964, as amended, limits the Federal
land, and title passes to a grantee or
share to 80 percent of the net cost of
construction, as determined by the subgrantee, the treatment of the do-
Secretary of Transportation. The Fed- nated property will depend upon the
eral share for the payment of subsidies purpose of the grant or subgrant, as
for operating expenses, as defined by follows:
the Secretary, shall not exceed 50 per- (1) Awards for capital expenditures. If
cent of the net cost of such operating the purpose of the grant or subgrant is
expense projects. to assist the grantee or subgrantee in
(c) Valuation of donated services—(1) the acquisition of property, the market
Volunteer services. Unpaid services pro- value of that property at the time of
vided to a grantee or subgrantee by in- donation may be counted as cost shar-
dividuals will be valued at rates con- ing or matching,
sistent with those ordinarily paid for (2) Other awards. If assisting in the
similar work in the grantee’s or sub- acquisition of property is not the pur-
grantee’s organization. If the grantee pose of the grant or subgrant, para-
or subgrantee does not have employees graphs (e)(2) (i) and (ii) of this section
performing similar work, the rates will apply:
be consistent with those ordinarily (i) If approval is obtained from the
paid by other employers for similar awarding agency, the market value at
work in the same labor market. In ei- the time of donation of the donated
ther case, a reasonable amount for equipment or buildings and the fair
fringe benefits may be included in the rental rate of the donated land may be
valuation. counted as cost sharing or matching.
(2) Employees of other organizations. In the case of a subgrant, the terms of
When an employer other than a grant- the grant agreement may require that
ee, subgrantee, or cost-type contractor the approval be obtained from the Fed-
furnishes free of charge the services of eral agency as well as the grantee. In
an employee in the employee’s normal all cases, the approval may be given
line of work, the services will be valued only if a purchase of the equipment or
at the employee’s regular rate of pay rental of the land would be approved as
exclusive of the employee’s fringe ben- an allowable direct cost. If any part of
efits and overhead costs. If the services the donated property was acquired
130
with Federal funds, only the non-fed- and from payments of principal and in-
eral share of the property may be terest on loans made with grant funds.
counted as cost-sharing or matching. Except as otherwise provided in regula-
(ii) If approval is not obtained under tions of the Federal agency, program
paragraph (e)(2)(i) of this section, no income does not include interest on
amount may be counted for donated grant funds, rebates, credits, discounts,
land, and only depreciation or use al- refunds, etc. and interest earned on
lowances may be counted for donated any of them.
equipment and buildings. The deprecia- (b) Definition of program income. Pro-
tion or use allowances for this property gram income means gross income re-
are not treated as third party in-kind ceived by the grantee or subgrantee di-
contributions. Instead, they are treat- rectly generated by a grant supported
ed as costs incurred by the grantee or activity, or earned only as a result of
subgrantee. They are computed and al- the grant agreement during the grant
located (usually as indirect costs) in period. ‘‘During the grant period’’ is
accordance with the cost principles the time between the effective date of
specified in § 18.22, in the same way as the award and the ending date of the
depreciation or use allowances for pur- award reflected in the final financial
chased equipment and buildings. The report.
amount of depreciation or use allow- (c) Cost of generating program income.
ances for donated equipment and build- If authorized by Federal regulations or
ings is based on the property’s market the grant agreement, costs incident to
value at the time it was donated. the generation of program income may
(f) Valuation of grantee or subgrantee be deducted from gross income to de-
donated real property for construction/ac- termine program income.
quisition. If a grantee or subgrantee do- (d) Governmental revenues. Taxes, spe-
nates real property for a construction cial assessments, levies, fines, and
or facilities acquisition project, the other such revenues raised by a grantee
current market value of that property or subgrantee are not program income
may be counted as cost sharing or unless the revenues are specifically
matching. If any part of the donated identified in the grant agreement or
property was acquired with Federal Federal agency regulations as program
funds, only the non-federal share of the income.
property may be counted as cost shar- (e) Royalties. Income from royalties
ing or matching. and license fees for copyrighted mate-
(g) Appraisal of real property. In some rial, patents, and inventions developed
cases under paragraphs (d), (e) and (f) by a grantee or subgrantee is program
of this section, it will be necessary to income only if the revenues are specifi-
establish the market value of land or a cally identified in the grant agreement
building or the fair rental rate of land or Federal agency regulations as pro-
or of space in a building. In these cases, gram income. (See § 18.34.)
the Federal agency may require the (f) Property. Proceeds from the sale of
market value or fair rental value be set real property or equipment will be han-
by an independent appraiser, and that dled in accordance with the require-
the value or rate be certified by the ments of §§ 18.31 and 18.32.
grantee. This requirement will also be (g) Use of program income. Program
imposed by the grantee on subgrantees. income shall be deducted from outlays
[53 FR 8086 and 8087, Mar. 11, 1988, as amend- which may be both Federal and non-
ed at 53 FR 8086, Mar. 11, 1988] Federal as described below, unless the
Federal agency regulations or the
§ 18.25 Program income. grant agreement specify another alter-
(a) General. Grantees are encouraged native (or a combination of the alter-
to earn income to defray program natives). In specifying alternatives, the
costs. Program income includes income Federal agency may distinguish be-
from fees for services performed, from tween income earned by the grantee
the use or rental of real or personal and income earned by subgrantees and
property acquired with grant funds, between the sources, kinds, or amounts
from the sale of commodities or items of income. When Federal agencies au-
fabricated under a grant agreement, thorize the alternatives in paragraphs
131
(g) (2) and (3) of this section, program agreement or the Federal agency regu-
income in excess of any limits stipulations provide otherwise.
lated shall also be deducted from out-
lays. ed at 53 FR 8087, Mar. 11, 1988]
(1) Deduction. Ordinarily program in-
come shall be deducted from total al- § 18.26 Non-Federal audits.
lowable costs to determine the net al-
(a) Basic rule. Grantees and sub-
lowable costs. Program income shall be
grantees are responsible for obtaining
used for current costs unless the Fed-
audits in accordance with the Single
eral agency authorizes otherwise. Pro-
Audit Act Amendments of 1996 (31
gram income which the grantee did not
U.S.C. 7501–7507) and revised OMB Cir-
anticipate at the time of the award
cular A–133, ‘‘Audits of States, Local
shall be used to reduce the Federal
Governments, and Non-Profit Organi-
agency and grantee contributions rath-
zations.’’ The audits shall be made by
er than to increase the funds com-
an independent auditor in accordance
mitted to the project.
with generally accepted government
(2) Addition. When authorized, pro- auditing standards covering financial
gram income may be added to the audits.
funds committed to the grant agree- (b) Subgrantees. State or local govern-
ment by the Federal agency and the ments, as those terms are defined for
grantee. The program income shall be purposes of the Single Audit Act
used for the purposes and under the Amendments of 1996, that provide Fed-
conditions of the grant agreement. eral awards to a subgrantee, which ex-
(3) Cost sharing or matching. When au- pends $300,000 or more (or other
thorized, program income may be used amount as specified by OMB) in Fed-
to meet the cost sharing or matching eral awards in a fiscal year, shall:
requirement of the grant agreement. (1) Determine whether State or local
The amount of the Federal grant award subgrantees have met the audit re-
remains the same. quirements of the Act and whether sub-
(4) Section 3(a)(1)(D) of the UMT Act grantees covered by OMB Circular A–
of 1964, as amended, provides that the 110, ‘‘Uniform Administrative Require-
Secretary shall establish requirements ments for Grants and Agreements with
for the use of income derived from ap- Institutions of Higher Education, Hos-
preciated land values for certain UMTA pitals, and Other Non-Profit Organiza-
grants. Specific requirements shall be tions,’’ have met the audit require-
contained in grant agreements. ments of the Act. Commercial contrac-
(5) UMTA grantees may retain pro- tors (private for-profit and private and
gram income for allowable capital or governmental organizations) providing
operating expenses. goods and services to State and local
(6) For grants awarded under section governments are not required to have a
9 of the UMT Act of 1964, as amended, single audit performed. State and local
any revenues received from the sale of governments should use their own pro-
advertising and concessions in excess cedures to ensure that the contractor
of fiscal year 1985 levels shall be ex- has complied with laws and regulations
cluded from program income. affecting the expenditure of Federal
(7) 23 U.S.C. 156 requires that States funds;
shall charge fair market value for the (2) Determine whether the sub-
sale, lease, or use of right-of-way air- grantee spent Federal assistance funds
space for non-transportation purposes provided in accordance with applicable
and that such income shall be used for laws and regulations. This may be ac-
projects eligible under 23 U.S.C. complished by reviewing an audit of
(h) Income after the award period. the subgrantee made in accordance
There are no Federal requirements gov- with the Act, Circular A–110, or
erning the disposition of program in- through other means (e.g., program re-
come earned after the end of the award views) if the subgrantee has not had
period (i.e., until the ending date of the such an audit;
final financial report, see paragraph (a) (3) Ensure that appropriate correc-
of this section), unless the terms of the tive action is taken within six months
132
after receipt of the audit report in in- payments to trainees to other expense
stance of noncompliance with Federal categories).
laws and regulations; (2) Construction projects. Grantees and
(4) Consider whether subgrantee au- subgrantees shall obtain prior written
dits necessitate adjustment of the approval for any budget revision which
grantee’s own records; and would result in the need for additional
(5) Require each subgrantee to permit funds.
independent auditors to have access to (3) Combined construction and non-
the records and financial statements. construction projects. When a grant or
(c) Auditor selection. In arranging for subgrant provides funding for both con-
audit services, § 18.36 shall be followed. struction and nonconstruction activi-
ties, the grantee or subgrantee must
ed at 61 FR 21387, May 10, 1996; 62 FR 45939, obtain prior written approval from the
45947, Aug. 29, 1997] awarding agency before making any
fund or budget transfer from non-
CHANGES, PROPERTY, AND SUBAWARDS construction to construction or vice
versa.
§ 18.30 Changes. (d) Programmatic changes. Grantees or
(a) General. Grantees and subgrantees subgrantees must obtain the prior ap-
are permitted to rebudget within the proval of the awarding agency when-
approved direct cost budget to meet ever any of the following actions is an-
unanticipated requirements and may ticipated:
make limited program changes to the (1) Any revision of the scope or objec-
approved project. However, unless tives of the project (regardless of
waived by the awarding agency, certain whether there is an associated budget
types of post-award changes in budgets revision requiring prior approval).
and projects shall require the prior (2) Need to extend the period of avail-
written approval of the awarding agen- ability of funds.
cy. (3) Changes in key persons in cases
(b) Relation to cost principles. The ap- where specified in an application or a
plicable cost principles (see § 18.22) con- grant award. In research projects, a
tain requirements for prior approval of change in the project director or prin-
certain types of costs. Except where cipal investigator shall always require
waived, those requirements apply to all approval unless waived by the award-
grants and subgrants even if para- ing agency.
graphs (c) through (f) of this section do (4) Under nonconstruction projects,
not. contracting out, subgranting (if au-
(c) Budget changes—(1) Nonconstruc- thorized by law) or otherwise obtaining
tion projects. Except as stated in other the services of a third party to perform
regulations or an award document, activities which are central to the pur-
grantees or subgrantees shall obtain poses of the award. This approval re-
the prior approval of the awarding quirement is in addition to the ap-
agency whenever any of the following proval requirements of § 18.36 but does
changes is anticipated under a non- not apply to the procurement of equip-
construction award: ment, supplies, and general support
(i) Any revision which would result services.
in the need for additional funding. (e) Additional prior approval require-
(ii) Unless waived by the awarding ments. The awarding agency may not
agency, cumulative transfers among di- require prior approval for any budget
rect cost categories, or, if applicable, revision which is not described in para-
among separately budgeted programs, graph (c) of this section.
projects, functions, or activities which (f) Requesting prior approval. (1) A re-
exceed or are expected to exceed ten quest for prior approval of any budget
percent of the current total approved revision will be in the same budget for-
budget, whenever the awarding agen- mal the grantee used in its application
cy’s share exceeds $100,000. and shall be accompanied by a nar-
(iii) Transfer of funds allotted for rative justification for the proposed re-
training allowances (i.e., from direct vision.
133
(2) A request for a prior approval The amount due to the awarding agen-
under the applicable Federal cost prin- cy will be calculated by applying the
ciples (see § 18.22) may be made by let- awarding agency’s percentage of par-
ter. ticipation in the cost of the original
(3) A request by a subgrantee for purchase to the proceeds of the sale
prior approval will be addressed in after deduction of any actual and rea-
writing to the grantee. The grantee sonable selling and fixing-up expenses.
will promptly review such request and If the grant is still active, the net pro-
shall approve or disapprove the request ceeds from sale may be offset against
in writing. A grantee will not approve the original cost of the property. When
any budget or project revision which is a grantee or subgrantee is directed to
inconsistent with the purpose or terms sell property, sales procedures shall be
and conditions of the Federal grant to followed that provide for competition
the grantee. If the revision, requested to the extent practicable and result in
by the subgrantee would result in a the highest possible return.
change to the grantee’s approved (3) Transfer of title. Transfer title to
project which requires Federal prior the awarding agency or to a third-
approval, the grantee will obtain the party designated/approved by the
Federal agency’s approval before ap- awarding agency. The grantee or sub-
proving the subgrantee’s request. grantee shall be paid an amount cal-
culated by applying the grantee or sub-
§ 18.31 Real property. grantee’s percentage of participation
(a) Title. Subject to the obligations in the purchase of the real property to
and conditions set forth in this section, the current fair market value of the
title to real property acquired under a property.
grant or subgrant will vest upon acqui- (d) If the conditions in 23 U.S.C.
sition in the grantee or subgrantee re- 103(e) (5), (6), or (7), as appropriate, are
spectively. met and approval is given by the Sec-
(b) Use. Except as otherwise provided retary, States shall not be required to
by Federal statutes, real property will repay the Highway Trust Fund for the
be used for the originally authorized cost of right-of-way and other items
purposes as long as needed for that pur- when certain segments of the Inter-
poses, and the grantee or subgrantee state System are withdrawn.
shall not dispose of or encumber its [53 FR 8086 and 8087, Mar. 11, 1988, as amend-
title or other interests. ed at 53 FR 8087, Mar. 11, 1988]
(c) Disposition. When real property is
no longer needed for the originally au- § 18.32 Equipment.
thorized purpose, the grantee or sub- (a) Title. Subject to the obligations
grantee will request disposition in- and conditions set forth in this section,
structions from the awarding agency. title to equipment acquired under a
The instructions will provide for one of grant or subgrant will vest upon acqui-
the following alternatives: sition in the grantee or subgrantee re-
(1) Retention of title. Retain title after spectively.
compensating the awarding agency. (b) States. A State will use, manage,
The amount paid to the awarding agen- and dispose of equipment acquired
cy will be computed by applying the under a grant by the State in accord-
awarding agency’s percentage of par- ance with State laws and procedures.
ticipation in the cost of the original Other grantees and subgrantees will
purchase to the fair market value of follow paragraphs (c) through (e) of
the property. However, in those situa- this section.
tions where a grantee or subgrantee is (c) Use. (1) Equipment shall be used
disposing of real property acquired by the grantee or subgrantee in the
with grant funds and acquiring replace- program or project for which it was ac-
ment real property under the same pro- quired as long as needed, whether or
gram, the net proceeds from the dis- not the project or program continues
position may be used as an offset to the to be supported by Federal funds. When
cost of the replacement property. no longer needed for the original pro-
(2) Sale of property. Sell the property gram or project, the equipment may be
and compensate the awarding agency. used in other activities currently or
134
previously supported by a Federal (4) Adequate maintenance procedures

agency. must be developed to keep the property
(2) The grantee or subgrantee shall in good condition.
also make equipment available for use (5) If the grantee or subgrantee is au-
on other projects or programs cur- thorized or required to sell the prop-
rently or previously supported by the erty, proper sales procedures must be
Federal Government, providing such established to ensure the highest pos-
use will not interfere with the work on sible return.
the projects or program for which it (e) Disposition. When original or re-
was originally acquired. First pref- placement equipment acquired under a
erence for other use shall be given to grant or subgrant is no longer needed
other programs or projects supported for the original project or program or
by the awarding agency. User fees for other activities currently or pre-
should be considered if appropriate. viously supported by a Federal agency,
(3) Notwithstanding the encourage- disposition of the equipment will be
ment in § 18.25(a) to earn program in- made as follows:
come, the grantee or subgrantee must (1) Items of equipment with a current
not use equipment acquired with grant per-unit fair market value of less than
funds to provide services for a fee to $5,000 may be retained, sold or other-
compete unfairly with private compa- wise disposed of with no further obliga-
nies that provide equivalent services, tion to the awarding agency.
unless specifically permitted or con- (2) Items of equipment with a current
templated by Federal statute. per unit fair market value in excess of
$5,000 may be retained or sold and the
(4) When acquiring replacement
awarding agency shall have a right to
equipment, the grantee or subgrantee
an amount calculated by multiplying
may use the equipment to be replaced
the current market value or proceeds
as a trade-in or sell the property and
from sale by the awarding agency’s
use the proceeds to offset the cost of
share of the equipment.
the replacement property, subject to
(3) In cases where a grantee or sub-
the approval of the awarding agency. grantee fails to take appropriate dis-
(d) Management requirements. Proce- position actions, the awarding agency
dures for managing equipment (includ- may direct the grantee or subgrantee
ing replacement equipment), whether to take excess and disposition actions.
acquired in whole or in part with grant (f) Federal equipment. In the event a
funds, until disposition takes place grantee or subgrantee is provided fed-
will, as a minimum, meet the following erally-owned equipment:
requirements: (1) Title will remain vested in the
(1) Property records must be main- Federal Government.
tained that include a description of the (2) Grantees or subgrantees will man-
property, a serial number or other age the equipment in accordance with
identification number, the source of Federal agency rules and procedures,
property, who holds title, the acquisi- and submit an annual inventory list-
tion date, and cost of the property, per- ing.
centage of Federal participation in the (3) When the equipment is no longer
cost of the property, the location, use needed, the grantee or subgrantee will
and condition of the property, and any request disposition instructions from
ultimate disposition data including the the Federal agency.
date of disposal and sale price of the (g) Right to transfer title. The Federal
property. awarding agency may reserve the right
(2) A physical inventory of the prop- to transfer title to the Federal Govern-
erty must be taken and the results rec- ment or a third part named by the
onciled with the property records at awarding agency when such a third
least once every two years. party is otherwise eligible under exist-
(3) A control system must be devel- ing statutes. Such transfers shall be
oped to ensure adequate safeguards to subject to the following standards:
prevent loss, damage, or theft of the (1) The property shall be identified in
property. Any loss, damage, or theft the grant or otherwise made known to
shall be investigated. the grantee in writing.
135
(2) The Federal awarding agency § 18.36 Procurement.

shall issue disposition instruction (a) States. When procuring property
within 120 calendar days after the end and services under a grant, a State will
of the Federal support of the project follow the same policies and procedures
for which it was acquired. If the Fed- it uses for procurements from its non-
eral awarding agency fails to issue dis- Federal funds. The State will ensure
position instructions within the 120 that every purchase order or other con-
calendar-day period the grantee shall tract includes any clauses required by
follow § 18.32(e). Federal statutes and executive orders
(3) When title to equipment is trans- and their implementing regulations.
ferred, the grantee shall be paid an Other grantees and subgrantees will
amount calculated by applying the per- follow paragraphs (b) through (i) in
centage of participation in the pur- this section.
chase to the current fair market value (b) Procurement standards. (1) Grant-
of the property. ees and subgrantees will use their own
procurement procedures which reflect
§ 18.33 Supplies. applicable State and local laws and
(a) Title. Title to supplies acquired regulations, provided that the procure-
under a grant or subgrant will vest, ments conform to applicable Federal
upon acquisition, in the grantee or sub- law and the standards identified in this
grantee respectively. section.
(b) Disposition. If there is a residual (2) Grantees and subgrantees will
inventory of unused supplies exceeding maintain a contract administration
$5,000 in total aggregate fair market system which ensures that contractors
value upon termination or completion perform in accordance with the terms,
of the award, and if the supplies are conditions, and specifications of their
not needed for any other federally contracts or purchase orders.
sponsored programs or projects, the (3) Grantees and subgrantees will
grantee or subgrantee shall com- maintain a written code of standards of
pensate the awarding agency for its conduct governing the performance of
share. their employees engaged in the award
and administration of contracts. No
§ 18.34 Copyrights. employee, officer or agent of the grant-
ee or subgrantee shall participate in se-
The Federal awarding agency re- lection, or in the award or administra-
serves a royalty-free, nonexclusive, and tion of a contract supported by Federal
irrevocable license to reproduce, pub- funds if a conflict of interest, real or
lish or otherwise use, and to authorize apparent, would be involved. Such a
others to use, for Federal Government conflict would arise when:
purposes: (i) The employee, officer or agent,
(a) The copyright in any work devel- (ii) Any member of his immediate
oped under a grant, subgrant, or con- family,
tract under a grant or subgrant; and (iii) His or her partner, or
(b) Any rights of copyright to which (iv) An organization which employs,
a grantee, subgrantee or a contractor or is about to employ, any of the
purchases ownership with grant sup- above, has a financial or other interest
port. in the firm selected for award. The
grantee’s or subgrantee’s officers, em-
§ 18.35 Subawards to debarred and ployees or agents will neither solicit
suspended parties. nor accept gratuities, favors or any-
Grantees and subgrantees must not thing of monetary value from contrac-
make any award or permit any award tors, potential contractors, or parties
(subgrant or contract) at any tier to to subagreements. Grantee and sub-
any party which is debarred or sus- grantees may set minimum rules where
pended or is otherwise excluded from or the financial interest is not substantial
ineligible for participation in Federal or the gift is an unsolicited item of
assistance programs under Executive nominal intrinsic value. To the extent
Order 12549, ‘‘Debarment and Suspen- permitted by State or local law or reg-
sion.’’ ulations, such standards or conduct
136
will provide for penalties, sanctions, or procurement, selection of contract

other disciplinary actions for viola- type, contractor selection or rejection,
tions of such standards by the grant- and the basis for the contract price.
ee’s and subgrantee’s officers, employ- (10) Grantees and subgrantees will
ees, or agents, or by contractors or use time and material type contracts
their agents. The awarding agency may only—
in regulation provide additional prohi- (i) After a determination that no
bitions relative to real, apparent, or other contract is suitable, and
potential conflicts of interest. (ii) If the contract includes a ceiling
(4) Grantee and subgrantee proce- price that the contractor exceeds at its
dures will provide for a review of pro- own risk.
posed procurements to avoid purchase (11) Grantees and subgrantees alone
of unnecessary or duplicative items. will be responsible, in accordance with
Consideration should be given to con- good administrative practice and sound
solidating or breaking out procure- business judgment, for the settlement
ments to obtain a more economical of all contractual and administrative
purchase. Where appropriate, an anal- issues arising out of procurements.
ysis will be made of lease versus pur- These issues include, but are not lim-
chase alternatives, and any other ap- ited to source evaluation, protests, dis-
propriate analysis to determine the putes, and claims. These standards do
most economical approach. not relieve the grantee or subgrantee
(5) To foster greater economy and ef- of any contractual responsibilities
ficiency, grantees and subgrantees are under its contracts. Federal agencies
encouraged to enter into State and will not substitute their judgment for
local intergovernmental agreements that of the grantee or subgrantee un-
for procurement or use of common less the matter is primarily a Federal
goods and services. concern. Violations of law will be re-
(6) Grantees and subgrantees are en- ferred to the local, State, or Federal
couraged to use Federal excess and sur- authority having proper jurisdiction.
plus property in lieu of purchasing new (12) Grantees and subgrantees will
equipment and property whenever such have protest procedures to handle and
use is feasible and reduces project resolve disputes relating to their pro-
costs. curements and shall in all instances
(7) Grantees and subgrantees are en- disclose information regarding the pro-
couraged to use value engineering test to the awarding agency. A
clauses in contracts for construction protestor must exhaust all administra-
projects of sufficient size to offer rea- tive remedies with the grantee and sub-
sonable opportunities for cost reduc- grantee before pursuing a protest with
tions. Value engineering is a system- the Federal agency. Reviews of pro-
atic and creative anaylsis of each con- tests by the Federal agency will be lim-
tract item or task to ensure that its es- ited to:
sential function is provided at the (i) Violations of Federal law or regu-
overall lower cost. lations and the standards of this sec-
(8) Grantees and subgrantees will tion (violations of State or local law
make awards only to responsible con- will be under the jurisdiction of State
tractors possessing the ability to per- or local authorities) and
form successfully under the terms and (ii) Violations of the grantee’s or sub-
conditions of a proposed procurement. grantee’s protest procedures for failure
Consideration will be given to such to review a complaint or protest. Pro-
matters as contractor integrity, com- tests received by the Federal agency
pliance with public policy, record of other than those specified above will be
past performance, and financial and referred to the grantee or subgrantee.
technical resources. (c) Competition. (1) All procurement
(9) Grantees and subgrantees will transactions will be conducted in a
maintain records sufficient to detail manner providing full and open com-
the significant history of a procure- petition consistent with the standards
ment. These records will include, but of § 18.36. Some of the situations con-
are not necessarily limited to the fol- sidered to be restrictive of competition
lowing: rationale for the method of include but are not limited to:
137
(i) Placing unreasonable require- or equal’’ description may be used as a

ments on firms in order for them to means to define the performance or
qualify to do business, other salient requirements of a pro-
(ii) Requiring unnecessary experience curement. The specific features of the
and excessive bonding, named brand which must be met by
(iii) Noncompetitive pricing practices offerors shall be clearly stated; and
between firms or between affiliated (ii) Identify all requirements which
companies, the offerors must fulfill and all other
(iv) Noncompetitive awards to con- factors to be used in evaluating bids or
sultants that are on retainer contracts, proposals.
(v) Organizational conflicts of inter- (4) Grantees and subgrantees will en-
est, sure that all prequalified lists of per-
(vi) Specifying only a ‘‘brand name’’ sons, firms, or products which are used
product instead of allowing ‘‘an equal’’ in acquiring goods and services are cur-
product to be offered and describing rent and include enough qualified
the performance of other relevant resources to ensure maximum open and
quirements of the procurement, and free competition. Also, grantees and
(vii) Any arbitrary action in the pro- subgrantees will not preclude potential
curement process. bidders from qualifying during the so-
(2) Grantees and subgrantees will licitation period.
conduct procurements in a manner (d) Methods of procurement to be fol-
that prohibits the use of statutorily or lowed—(1) Procurement by small purchase
administratively imposed in-State or procedures. Small purchase procedures
local geographical preferences in the are those relatively simple and infor-
evaluation of bids or proposals, except mal procurement methods for securing
in those cases where applicable Federal services, supplies, or other property
statutes expressly mandate or encour- that do not cost more than the sim-
age geographic preference. Nothing in plified acquisition threshold fixed at 41
this section preempts State licensing U.S.C. 403(11) (currently set at $100,000).
laws. When contracting for architec- If small purchase procedures are used,
tural and engineering (A/E) services, price or rate quotations shall be ob-
geographic location may be a selection tained from an adequate number of
criteria provided its application leaves qualified sources.
an appropriate number of qualified (2) Procurement by sealed bids (for-
firms, given the nature and size of the mal advertising). Bids are publicly so-
project, to compete for the contract. licited and a firm-fixed-price contract
(3) Grantees will have written selec- (lump sum or unit price) is awarded to
tion procedures for procurement trans- the responsible bidder whose bid, con-
actions. These procedures will ensure forming with all the material terms
that all solicitations: and conditions of the invitation for
(i) Incorporate a clear and accurate bids, is the lowest in price. The sealed
description of the technical require- bid method is the preferred method for
ments for the material, product, or procuring construction, if the condi-
service to be procured. Such descriptions in § 18.36(d)(2)(i) apply.
tion shall not, in competitive procure- (i) In order for sealed bidding to be
ments, contain features which unduly feasible, the following conditions
restrict competition. The description should be present:
may include a statement of the quali- (A) A complete, adequate, and real-
tative nature of the material, product istic specification or purchase descrip-
or service to be procured, and when tion is available;
necessary, shall set forth those min- (B) Two or more responsible bidders
imum essential characteristics and are willing and able to compete effec-
standards to which it must conform if tively and for the business; and
it is to satisfy its intended use. De- (C) The procurement lends itself to a
tailed product specifications should be firm fixed price contract and the selec-
avoided if at all possible. When it is tion of the successful bidder can be
impractical or uneconomical to make a made principally on the basis of price.
clear and accurate description of the (ii) If sealed bids are used, the fol-
technical requirements, a ‘‘brand name lowing requirements apply:
138
(A) The invitation for bids will be sional services whereby competitors’
publicly advertised and bids shall be qualifications are evaluated and the
solicited from an adequate number of most qualified competitor is selected,
known suppliers, providing them suffi- subject to negotiation of fair and rea-
cient time prior to the date set for sonable compensation. The method,
opening the bids; where price is not used as a selection
(B) The invitation for bids, which factor, can only be used in procure-
will include any specifications and per- ment of A/E professional services. It
tinent attachments, shall define the cannot be used to purchase other types
items or services in order for the bidder of services though A/E firms are a po-
to properly respond; tential source to perform the proposed
(C) All bids will be publicly opened at effort.
the time and place prescribed in the in- (4) Procurement by noncompetitive
vitation for bids; proposals is procurement through solic-
(D) A firm fixed-price contract award itation of a proposal from only one
will be made in writing to the lowest source, or after solicitation of a num-
responsive and responsible bidder.
ber of sources, competition is deter-
Where specified in bidding documents,
mined inadequate.
factors such as discounts, transpor-
tation cost, and life cycle costs shall be (i) Procurement by noncompetitive
considered in determining which bid is proposals may be used only when the
lowest. Payment discounts will only be award of a contract is infeasible under
used to determine the low bid when small purchase procedures, sealed bids
prior experience indicates that such or competitive proposals and one of the
discounts are usually taken advantage following circumstances applies:
of; and (A) The item is available only from a
(E) Any or all bids may be rejected if single source;
there is a sound documented reason. (B) The public exigency or emergency
(3) Procurement by competitive pro- for the requirement will not permit a
posals. The technique of competitive delay resulting from competitive solic-
proposals is normally conducted with itation;
more than one source submitting an (C) The awarding agency authorizes
offer, and either a fixed-price or cost- noncompetitive proposals; or
reimbursement type contract is award- (D) After solicitation of a number of
ed. It is generally used when conditions sources, competition is determined in-
are not appropriate for the use of adequate.
sealed bids. If this method is used, the (ii) Cost analysis, i.e., verifying the
following requirements apply: proposed cost data, the projections of
(i) Requests for proposals will be pub- the data, and the evaluation of the spe-
licized and identify all evaluation fac- cific elements of costs and profits, is
tors and their relative importance. Any required.
response to publicized requests for pro-
(iii) Grantees and subgrantees may
posals shall be honored to the max-
be required to submit the proposed pro-
imum extent practical;
curement to the awarding agency for
(ii) Proposals will be solicited from
pre-award review in accordance with
an adequate number of qualified
paragraph (g) of this section.
sources;
(iii) Grantees and subgrantees will (e) Contracting with small and minority
have a method for conducting tech- firms, women’s business enterprise and
nical evaluations of the proposals re- labor surplus area firms. (1) The grantee
ceived and for selecting awardees; and subgrantee will take all necessary
(iv) Awards will be made to the re- affirmative steps to assure that minor-
sponsible firm whose proposal is most ity firms, women’s business enter-
advantageous to the program, with prises, and labor surplus area firms are
price and other factors considered; and used when possible.
(v) Grantees and subgrantees may (2) Affirmative steps shall include:
use competitive proposal procedures (i) Placing qualified small and minor-
for qualifications-based procurement of ity businesses and women’s business
architectural/engineering (A/E) profes- enterprises on solicitation lists;
139
(ii) Assuring that small and minority To establish a fair and reasonable prof-
businesses, and women’s business en- it, consideration will be given to the
terprises are solicited whenever they complexity of the work to be per-
are potential sources; formed, the risk borne by the con-
(iii) Dividing total requirements, tractor, the contractor’s investment,
when economically feasible, into small- the amount of subcontracting, the
er tasks or quantities to permit max- quality of its record of past perform-
imum participation by small and mi- ance, and industry profit rates in the
nority business, and women’s business surrounding geographical area for
enterprises; similar work.
(iv) Establishing delivery schedules, (3) Costs or prices based on estimated
where the requirement permits, which costs for contracts under grants will be
encourage participation by small and allowable only to the extent that costs
minority business, and women’s busi- incurred or cost estimates included in
ness enterprises; negotiated prices are consistent with
(v) Using the services and assistance Federal cost principles (see § 18.22).
of the Small Business Administration, Grantees may reference their own cost
and the Minority Business Develop- principles that comply with the appli-
ment Agency of the Department of cable Federal cost principles.
Commerce; and (4) The cost plus a percentage of cost
(vi) Requiring the prime contractor, and percentage of construction cost
if subcontracts are to be let, to take methods of contracting shall not be
the affirmative steps listed in para- used.
graphs (e)(2) (i) through (v) of this sec-
(g) Awarding agency review. (1) Grant-
tion.
ees and subgrantees must make avail-
(f) Contract cost and price. (1) Grant-
able, upon request of the awarding
ees and subgrantees must perform a
agency, technical specifications on pro-
cost or price analysis in connection
posed procurements where the award-
with every procurement action includ-
ing agency believes such review is
ing contract modifications. The meth-
needed to ensure that the item and/or
od and degree of analysis is dependent
service specified is the one being pro-
on the facts surrounding the particular
procurement situation, but as a start- posed for purchase. This review gen-
ing point, grantees must make inde- erally will take place prior to the time
pendent estimates before receiving bids the specification is incorporated into a
or proposals. A cost analysis must be solicitation document. However, if the
performed when the offeror is required grantee or subgrantee desires to have
to submit the elements of his esti- the review accomplished after a solici-
mated cost, e.g., under professional, tation has been developed, the award-
consulting, and architectural engineering agency may still review the speci-
ing services contracts. A cost analysis fications, with such review usually lim-
will be necessary when adequate price ited to the technical aspects of the pro-
competition is lacking, and for sole posed purchase.
source procurements, including con- (2) Grantees and subgrantees must on
tract modifications or change orders, request make available for awarding
unless price resonableness can be es- agency pre-award review procurement
tablished on the basis of a catalog or documents, such as requests for pro-
market price of a commercial product posals or invitations for bids, inde-
sold in substantial quantities to the pendent cost estimates, etc. when:
general public or based on prices set by (i) A grantee’s or subgrantee’s pro-
law or regulation. A price analysis will curement procedures or operation fails
be used in all other instances to deter- to comply with the procurement stand-
mine the reasonableness of the pro- ards in this section; or
posed contract price. (ii) The procurement is expected to
(2) Grantees and subgrantees will ne- exceed the simplified acquisition
gotiate profit as a separate element of threshold and is to be awarded without
the price for each contract in which competition or only one bid or offer is
there is no price competition and in all received in response to a solicitation;
cases where cost analysis is performed. or
140
(iii) The procurement, which is ex- The ‘‘bid guarantee’’ shall consist of a
pected to exceed the simplified acquisi- firm commitment such as a bid bond,
tion threshold, specifies a ‘‘brand certified check, or other negotiable in-
name’’ product; or strument accompanying a bid as assur-
(iv) The proposed award is more than ance that the bidder will, upon accept-
the simplified acquisition threshold ance of his bid, execute such contrac-
and is to be awarded to other than the tual documents as may be required
apparent low bidder under a sealed bid within the time specified.
procurement; or (2) A performance bond on the part of
(v) A proposed contract modification the contractor for 100 percent of the con-
changes the scope of a contract or in- tract price. A ‘‘performance bond’’ is
creases the contract amount by more one executed in connection with a con-
than the simplified acquisition thresh- tract to secure fulfillment of all the
old. contractor’s obligations under such
(3) A grantee or subgrantee will be contract.
exempt from the pre-award review in (3) A payment bond on the part of the
paragraph (g)(2) of this section if the contractor for 100 percent of the contract
awarding agency determines that its price. A ‘‘payment bond’’ is one exe-
procurement systems comply with the cuted in connection with a contract to
standards of this section. assure payment as required by law of
(i) A grantee or subgrantee may re- all persons supplying labor and mate-
quest that its procurement system be rial in the execution of the work pro-
reviewed by the awarding agency to de- vided for in the contract.
termine whether its system meets
(i) Contract provisions. A grantee’s
these standards in order for its system
and subgrantee’s contracts must con-
to be certified. Generally, these re-
tain provisions in paragraph (i) of this
views shall occur where there is a con-
section. Federal agencies are permitted
tinuous high-dollar funding, and third-
to require changes, remedies, changed
party contracts are awarded on a reg-
conditions, access and records reten-
ular basis.
tion, suspension of work, and other
(ii) A grantee or subgrantee may self-
clauses approved by the Office of Fed-
certify its procurement system. Such
self-certification shall not limit the eral Procurement Policy.
awarding agency’s right to survey the (1) Administrative, contractual, or
system. Under a self-certification pro- legal remedies in instances where con-
cedure, awarding agencies may wish to tractors violate or breach contract
rely on written assurances from the terms, and provide for such sanctions
grantee or subgrantee that it is com- and penalties as may be appropriate.
plying with these standards. A grantee (Contracts more than the simplified ac-
or subgrantee will cite specific proce- quisition threshold)
dures, regulations, standards, etc., as (2) Termination for cause and for
being in compliance with these require- convenience by the grantee or sub-
ments and have its system available grantee including the manner by which
for review. it will be effected and the basis for set-
(h) Bonding requirements. For con- tlement. (All contracts in excess of
struction or facility improvement con- $10,000)
tracts or subcontracts exceeding the (3) Compliance with Executive Order
simplified acquisition threshold, the 11246 of September 24, 1965, entitled
awarding agency may accept the bond- ‘‘Equal Employment Opportunity,’’ as
ing policy and requirements of the amended by Executive Order 11375 of
grantee or subgrantee provided the October 13, 1967, and as supplemented
awarding agency has made a deter- in Department of Labor regulations (41
mination that the awarding agency’s CFR chapter 60). (All construction con-
interest is adequately protected. If tracts awarded in excess of $10,000 by
such a determination has not been grantees and their contractors or sub-
made, the minimum requirements shall grantees)
be as follows: (4) Compliance with the Copeland
(1) A bid guarantee from each bidder ‘‘Anti-Kickback’’ Act (18 U.S.C. 874) as
equivalent to five percent of the bid price. supplemented in Department of Labor
141
regulations (29 CFR part 3). (All con- contained in the state energy conserva-
tracts and subgrants for construction tion plan issued in compliance with the
or repair) Energy Policy and Conservation Act
(5) Compliance with the Davis-Bacon (Pub. L. 94–163, 89 Stat. 871).
Act (40 U.S.C. 276a to 276a–7) as supple- (j) 23 U.S.C. 112(a) directs the Sec-
mented by Department of Labor regu- retary to require recipients of highway
lations (29 CFR part 5). (Construction construction grants to use bidding
contracts in excess of $2000 awarded by methods that are ‘‘effective in securing
grantees and subgrantees when re- competition.’’ Detailed construction
quired by Federal grant program legis- contracting procedures are contained
lation) in 23 CFR part 635, subpart A.
(6) Compliance with Sections 103 and (k) Section 3(a)(2)(C) of the UMT Act
107 of the Contract Work Hours and of 1964, as amended, prohibits the use
Safety Standards Act (40 U.S.C. 327–330) of grant or loan funds to support pro-
as supplemented by Department of curements utilizing exclusionary or
Labor regulations (29 CFR part 5). discriminatory specifications.
(Construction contracts awarded by (l) 46 U.S.C. 1241(b)(1) and 46 CFR part
grantees and subgrantees in excess of 381 impose cargo preference require-
$2000, and in excess of $2500 for other ments on the shipment of foreign made
contracts which involve the employ- goods.
ment of mechanics or laborers) (m) Section 165 of the Surface Trans-
(7) Notice of awarding agency re- portation Assistance Act of 1982, 49
quirements and regulations pertaining U.S.C. 1601, section 337 of the Surface
to reporting. Transportation and Uniform Reloca-
(8) Notice of awarding agency re- tion Assistance Act of 1987, and 49 CFR
quirements and regulations pertaining parts 660 and 661 impose Buy America
to patent rights with respect to any provisions on the procurement of for-
discovery or invention which arises or eign products and materials.
is developed in the course of or under (n) Section 105(f) of the Surface
such contract. Transportation Assistance Act of 1982,
(9) Awarding agency requirements section 106(c) of the Surface Transpor-
and regulations pertaining to copy- tation and Uniform Relocation Assist-
rights and rights in data. ance Act of 1987, and 49 CFR part 23 im-
(10) Access by the grantee, the sub- pose requirements for the participation
grantee, the Federal grantor agency, of disadvantaged business enterprises.
the Comptroller General of the United (o) Section 308 of the Surface Trans-
States, or any of their duly authorized portation Assistance Act of 1982, 49
representatives to any books, docu- U.S.C. 1068(b)(2), authorizes the use of
ments, papers, and records of the con- competitive negotiation for the pur-
tractor which are directly pertinent to chase of rolling stock as appropriate.
that specific contract for the purpose (p) 23 U.S.C. 112(b) provides for an ex-
of making audit, examination, exemption to competitive bidding re-
cerpts, and transcriptions. quirements for highway construction
(11) Retention of all required records contracts in emergency situations.
for three years after grantees or sub- (q) 23 U.S.C. 112 requires concurrence
grantees make final payments and all by the Secretary before highway con-
other pending matters are closed. struction contracts can be awarded, ex-
(12) Compliance with all applicable cept for projects authorized under the
standards, orders, or requirements provisions of 23 U.S.C. 17l.
issued under section 306 of the Clean (r) 23 U.S.C. 112(e) requires standard-
Air Act (42 U.S.C. 1857(h)), section 508 ized contract clauses concerning site
of the Clean Water Act (33 U.S.C. 1368), conditions, suspension or work, and
Executive Order 11738, and Environ- material changes in the scope of the
mental Protection Agency regulations work for highway construction con-
(40 CFR part 15). (Contracts, sub- tracts.
contracts, and subgrants of amounts in (s) 23 U.S.C. 140(b) authorizes the
excess of $100,000) preferential employment of Indians on
(13) Mandatory standards and policies Indian Reservation road projects and
relating to energy efficiency which are contracts.
142
(t) FHWA, UMTA, and Federal Avia- (2) Ensure that every subgrant in-
tion Administration (FAA) grantees cludes any clauses required by Federal
and subgrantees shall extend the use of statute and executive orders and their
qualifications-based (e.g., architectural implementing regulations; and
and engineering services) contract se- (3) Ensure that subgrantees are
lection procedures to certain other re- aware of requirements imposed upon
lated areas and shall award such con- them by Federal statutes and regula-
tracts in the same manner as Federal tions.
contracts for architectural and engi- (c) Exceptions. By their own terms,
neering services are negotiated under certain provisions of this part do not
Title IX of the Federal Property and apply to the award and administration
Administrative Services Act of 1949, or of subgrants:
equivalent State (or airport sponsor for (1) Section 18.10;
FAA) qualifications-based require- (2) Section 18.11;
ments. For FHWA and UMTA pro- (3) The letter-of-credit procedures
grams, this provision applies except to specified in Treasury Regulations at 31
the extent that a State adopts or has CFR part 205, cited in § 18.21; and
adopted by statute a formal procedure (4) Section 18.50.
for the procurement of such services.
[53 FR 8086 and 8087, Mar. 11, 1988, as amend- REPORTS, RECORDS, RETENTION, AND
ed at 53 FR 8087, Mar. 11, 1988; 60 FR 19639, ENFORCEMENT
19647, Apr. 19, 1995]
§ 18.40 Monitoring and reporting pro-
§ 18.37 Subgrants. gram performance.
(a) States. States shall follow state (a) Monitoring by grantees. Grantees
law and procedures when awarding and are responsible for managing the day-
administering subgrants (whether on a to-day operations of grant and
cost reimbursement or fixed amount subgrant supported activities. Grantees
basis) of financial assistance to local must monitor grant and subgrant sup-
and Indian tribal governments. States ported activities to assure compliance
shall: with applicable Federal requirements
(1) Ensure that every subgrant in- and that performance goals are being
cludes any clauses required by Federal achieved. Grantee monitoring must
statute and executive orders and their cover each program, function or activ-
implementing regulations; ity.
(2) Ensure that subgrantees are (b) Nonconstruction performance re-
aware of requirements imposed upon ports. The Federal agency may, if it de-
them by Federal statute and regula- cides that performance information
tion; available from subsequent applications
(3) Ensure that a provision for com- contains sufficient information to
pliance with § 18.42 is placed in every meet its programmatic needs, require
cost reimbursement subgrant; and the grantee to submit a performance
(4) Conform any advances of grant report only upon expiration or termi-
funds to subgrantees substantially to nation of grant support. Unless waived
the same standards of timing and by the Federal agency this report will
amount that apply to cash advances by be due on the same date as the final Fi-
Federal agencies. nancial Status Report.
(b) All other grantees. All other grant- (1) Grantees shall submit annual per-
ees shall follow the provisions of this formance reports unless the awarding
part which are applicable to awarding agency requires quarterly or semi-an-
agencies when awarding and admin- nual reports. However, performance re-
istering subgrants (whether on a cost ports will not be required more fre-
reimbursement or fixed amount basis) quently than quarterly. Annual reports
of financial assistance to local and In- shall be due 90 days after the grant
dian tribal governments. Grantees year, quarterly or semi-annual reports
shall: shall be due 30 days after the reporting
(1) Ensure that every subgrant in- period. The final performance report
cludes a provision for compliance with will be due 90 days after the expiration
this part; or termination of grant support. If a
143
justified request is submitted by a (2) Favorable developments which en-

grantee, the Federal agency may ex- able meeting time schedules and objec-
tend the due date for any performance tives sooner or at less cost than antici-
report. Additionally, requirements for pated or producing more beneficial re-
unnecessary performance reports may sults than originally planned.
be waived by the Federal agency. (e) Federal agencies may make site
(2) Performance reports will contain, visits as warranted by program needs.
for each grant, brief information on the (f) Waivers, extensions. (1) Federal
following: agencies may waive any performance
(i) A comparison of actual accom- report required by this part if not need-
plishments to the objectives estab- ed.
lished for the period. Where the output (2) The grantee may waive any per-
of the project can be quantified, a com- formance report from a subgrantee
putation of the cost per unit of output when not needed. The grantee may ex-
may be required if that information tend the due date for any performance
will be useful. report from a subgrantee if the grantee
(ii) The reasons for slippage if estab- will still be able to meet its perform-
lished objectives were not met. ance reporting obligations to the Fed-
(iii) Additional pertinent information eral agency.
including, when appropriate, analysis [53 FR 8086 and 8087, Mar. 11, 1988, as amend-
and explanation of cost overruns or ed at 53 FR 8087, Mar. 11, 1988]
high unit costs.
(3) Grantees will not be required to § 18.41 Financial reporting.
submit more than the original and two (a) General. (1) Except as provided in
copies of performance reports. paragraphs (a) (2) and (5) of this sec-
(4) Grantees will adhere to the stand- tion, grantees will use only the forms
ards in this section in prescribing per- specified in paragraphs (a) through (e)
formance reporting requirements for of this section, and such supple-
subgrantees. mentary or other forms as may from
(c) Construction performance reports. time to time be authorized by OMB,
For the most part, on-site technical infor:
spections and certified percentage-of- (i) Submitting financial reports to
completion data are relied on heavily Federal agencies, or
by Federal agencies to monitor (ii) Requesting advances or reim-
progress under construction grants and bursements when letters of credit are
subgrants. The Federal agency will re- not used.
quire additional formal performance (2) Grantees need not apply the forms
reports only when considered nec- prescribed in this section in dealing
essary, and never more frequently than with their subgrantees. However,
quarterly. grantees shall not impose more burden-
(1) Section 12(h) of the UMT Act of some requirements on subgrantees.
1964, as amended, requires pre-award (3) Grantees shall follow all applica-
testing of new buses models. ble standard and supplemental Federal
(2) [Reserved] agency instructions approved by OMB
(d) Significant developments. Events to the extent required under the Paper-
may occur between the scheduled per- work Reduction Act of 1980 for use in
formance reporting dates which have connection with forms specified in
significant impact upon the grant or paragraphs (b) through (e) of this sec-
subgrant supported activity. In such tion. Federal agencies may issue sub-
cases, the grantee must inform the stantive supplementary instructions
Federal agency as soon as the following only with the approval of OMB. Federal
types of conditions become known: agencies may shade out or instruct the
(1) Problems, delays, or adverse con- grantee to disregard any line item that
ditions which will materially impair the Federal agency finds unnecessary
the ability to meet the objective of the for its decisionmaking purposes.
award. This disclosure must include a (4) Grantees will not be required to
statement of the action taken, or con- submit more than the original and two
templated, and any assistance needed copies of forms required under this
to resolve the situation. part.
144
(5) Federal agencies may provide of the award exempt the grantee from
computer outputs to grantees to expe- this requirement.
dite or contribute to the accuracy of (ii) These reports will be used by the
reporting. Federal agencies may accept Federal agency to monitor cash ad-
the required information from grantees vanced to grantees and to obtain dis-
in machine usable format or computer bursement or outlay information for
printouts instead of prescribed forms. each grant from grantees. The format
(6) Federal agencies may waive any of the report may be adapted as appro-
report required by this section if not priate when reporting is to be accom-
needed. plished with the assistance of auto-
(7) Federal agencies may extend the matic data processing equipment pro-
due date of any financial report upon vided that the information to be sub-
receiving a justified request from a mitted is not changed in substance.
grantee. (2) Forecasts of Federal cash require-
(b) Financial Status Report—(1) Form. ments. Forecasts of Federal cash re-
Grantees will use Standard Form 269 or quirements may be required in the
269A, Financial Status Report, to re- ‘‘Remarks’’ section of the report.
port the status of funds for all non- (3) Cash in hands of subgrantees. When
construction grants and for construc- considered necessary and feasible by
tion grants when required in accord- the Federal agency, grantees may be
ance with § 18.41(e)(2)(iii). required to report the amount of cash
(2) Accounting basis. Each grantee will advances in excess of three days needs
report program outlays and program in the hands of their subgrantees or
income on a cash or accrual basis as contractors and to provide short nar-
prescribed by the awarding agency. If rative explanations of actions taken by
the Federal agency requires accrual in- the grantee to reduce the excess bal-
formation and the grantee’s accounting ances.
records are not normally kept on the (4) Frequency and due date. Grantees
accural basis, the grantee shall not be must submit the report no later than 15
required to convert its accounting sys- working days following the end of each
tem but shall develop such accrual in- quarter. However, where an advance ei-
formation through and analysis of the ther by letter of credit or electronic
documentation on hand. transfer of funds is authorized at an
(3) Frequency. The Federal agency annualized rate of one million dollars
may prescribe the frequency of the re- or more, the Federal agency may re-
port for each project or program. How- quire the report to be submitted within
ever, the report will not be required 15 working days following the end of
more frequently than quarterly. If the each month.
Federal agency does not specify the (d) Request for advance or reimburse-
frequency of the report, it will be sub- ment—(1) Advance payments. Requests
mitted annually. A final report will be for Treasury check advance payments
required upon expiration or termi- will be submitted on Standard Form
nation of grant support. 270, Request for Advance or Reimburse-
(4) Due date. When reports are re- ment. (This form will not be used for
quired on a quarterly or semiannual drawdowns under a letter of credit,
basis, they will be due 30 days after the electronic funds transfer or when
reporting period. When required on an Treasury check advance payments are
annual basis, they will be due 90 days made to the grantee automatically on
after the grant year. Final reports will a predetermined basis.)
be due 90 days after the expiration or (2) Reimbursements. Requests for reim-
termination of grant support. bursement under nonconstruction
(c) Federal Cash Transactions Report— grants will also be submitted on Stand-
(1) Form. (i) For grants paid by letter or ard Form 270. (For reimbursement re-
credit, Treasury check advances or quests under construction grants, see
electronic transfer of funds, the grant- paragraph (e)(1) of this section.)
ee will submit the Standard Form 272, (3) The frequency for submitting pay-
Federal Cash Transactions Report, and ment requests is treated in § 18.41(b)(3).
when necessary, its continuation sheet, (e) Outlay report and request for reim-
Standard Form 272a, unless the terms bursement for construction programs—(1)
145
Grants that support construction activi- tical records, and other records of
ties paid by reimbursement method. (i) grantees or subgrantees which are:
Requests for reimbursement under con- (i) Required to be maintained by the
struction grants will be submitted on terms of this part, program regulations
Standard Form 271, Outlay Report and or the grant agreement, or
Request for Reimbursement for Con- (ii) Otherwise reasonably considered
struction Programs. Federal agencies as pertinent to program regulations or
may, however, prescribe the Request the grant agreement.
for Advance or Reimbursement form, (2) This section does not apply to
specified in § 18.41(d), instead of this
records maintained by contractors or
form.
subcontractors. For a requirement to
(ii) The frequency for submitting re-
place a provision concerning records in
imbursement requests is treated in
certain kinds of contracts, see
§ 18.41(b)(3).
§ 18.36(i)(10).
(2) Grants that support construction ac-
(b) Length of retention period. (1) Ex-
tivities paid by letter of credit, electronic
funds transfer or Treasury check ad- cept as otherwise provided, records
vance. (i) When a construction grant is must be retained for three years from
paid by letter of credit, electronic the starting date specified in paragraph
funds transfer or Treasury check ad- (c) of this section.
vances, the grantee will report its out- (2) If any litigation, claim, negotia-
lays to the Federal agency using tion, audit or other action involving
Standard Form 271, Outlay Report and the records has been started before the
Request for Reimbursement for Con- expiration of the 3-year period, the
struction Programs. The Federal agen- records must be retained until comple-
cy will provide any necessary special tion of the action and resolution of all
instruction. However, frequency and issues which arise from it, or until the
due date shall be governed by § 18.41(b) end of the regular 3-year period, which-
(3) and (4). ever is later.
(ii) When a construction grant is paid (3) To avoid duplicate recordkeeping,
by Treasury check advances based on awarding agencies may make special
periodic requests from the grantee, the arrangements with grantees and sub-
advances will be requested on the form grantees to retain any records which
specified in § 18.41(d). are continuously needed for joint use.
(iii) The Federal agency may sub- The awarding agency will request
stitute the Financial Status Report transfer of records to its custody when
specified in § 18.41(b) for the Outlay Re- it determines that the records possess
port and Request for Reimbursement long-term retention value. When the
for Construction Programs. records are transferred to or main-
(3) Accounting basis. The accounting tained by the Federal agency, the 3-
basis for the Outlay Report and Re- year retention requirement is not ap-
quest for Reimbursement for Construc- plicable to the grantee or subgrantee.
tion Programs shall be governed by (c) Starting date of retention period—(1)
§ 18.41(b)(2). General. When grant support is contin-
(f) Notwithstanding the provisions of ued or renewed at annual or other in-
paragraphs (a)(1) of this section, recipi- tervals, the retention period for the
ents of FHWA and National Highway records of each funding period starts on
Traffic Safety Administration the day the grantee or subgrantee sub-
(NHTSA) grants shall use FHWA, mits to the awarding agency its single
NHTSA or State financial reports. or last expenditure report for that pe-
[53 FR 8086 and 8087, Mar. 11, 1988, as amend- riod. However, if grant support is con-
ed at 53 FR 8087, Mar. 11, 1988] tinued or renewed quarterly, the reten-
tion period for each year’s records
§ 18.42 Retention and access require- starts on the day the grantee submits
ments for records. its expenditure report for the last quar-
(a) Applicability. (1) This section ap- ter of the Federal fiscal year. In all
plies to all financial and programmatic other cases, the retention period starts
records, supporting documents, statis- on the day the grantee submits its
146
final expenditure report. If an expendi- documents, papers, or other records of

ture report has been waived, the reten- grantees and subgrantees which are
tion period starts on the day the report pertinent to the grant, in order to
would have been due. make audits, examinations, excerpts,
(2) Real property and equipment and transcripts.
records. The retention period for real (2) Expiration of right of access. The
property and equipment records starts right of access in this section must not
from the date of the disposition or re- be limited to the required retention pe-
placement or transfer at the direction riod but shall last as long as the
of the awarding agency. records are retained.
(3) Records for income transactions (f) Restrictions on public access. The
after grant or subgrant support. In some Federal Freedom of Information Act (5
cases grantees must report income U.S.C. 552) does not apply to records
after the period of grant support. unless required by Federal, State, or
Where there is such a requirement, the local law, grantees and subgrantees are
retention period for the records per- not required to permit public access to
taining to the earning of the income their records.
starts from the end of the grantee’s fis-
cal year in which the income is earned. § 18.43 Enforcement.
(4) Indirect cost rate proposals, cost al- (a) Remedies for noncompliance. If a
locations plans, etc. This paragraph ap- grantee or subgrantee materially fails
plies to the following types of docu- to comply with any term of an award,
ments, and their supporting records: whether stated in a Federal statute or
indirect cost rate computations or pro- regulation, an assurance, in a State
posals, cost allocation plans, and any plan or application, a notice of award,
similar accounting computations of or elsewhere, the awarding agency may
the rate at which a particular group of take one or more of the following ac-
costs is chargeable (such as computer tions, as appropriate in the cir-
usage chargeback rates or composite cumstances:
fringe benefit rates). (1) Temporarily withhold cash pay-
(i) If submitted for negotiation. If the ments pending correction of the defi-
proposal, plan, or other computation is ciency by the grantee or subgrantee or
required to be submitted to the Federal more severe enforcement action by the
Government (or to the grantee) to form awarding agency,
the basis for negotiation of the rate, (2) Disallow (that is, deny both use of
then the 3-year retention period for its funds and matching credit for) all or
supporting records starts from the date part of the cost of the activity or ac-
of such submission. tion not in compliance,
(ii) If not submitted for negotiation. If (3) Wholly or partly suspend or ter-
the proposal, plan, or other computa- minate the current award for the
tion is not required to be submitted to grantee’s or subgrantee’s program,
the Federal Government (or to the (4) Withhold further awards for the
grantee) for negotiation purposes, then program, or
the 3-year retention period for the pro- (5) Take other remedies that may be
posal plan, or computation and its sup- legally available.
porting records starts from theend of (b) Hearings, appeals. In taking an en-
the fiscal year (or other accounting pe- forcement action, the awarding agency
riod) covered by the proposal, plan, or will provide the grantee or subgrantee
other computation. an opportunity for such hearing, ap-
(d) Substitution of microfilm. Copies peal, or other administrative pro-
made by microfilming, photocopying, ceeding to which the grantee or sub-
or similar methods may be substituted grantee is entitled under any statute
for the original records. or regulation applicable to the action
(e) Access to records—(1) Records of involved.
grantees and subgrantees. The awarding (c) Effects of suspension and termi-
agency and the Comptroller General of nation. Costs of grantee or subgrantee
the United States, or any of their au- resulting from obligations incurred by
thorized representatives, shall have the the grantee or subgrantee during a sus-
right of access to any pertinent books, pension or after termination of an
147
award are not allowable unless the Subpart D—After-The-Grant

awarding agency expressly authorizes Requirements
them in the notice of suspension or ter-
mination or subsequently. Other grant- § 18.50 Closeout.
ee or subgrantee costs during suspen- (a) General. The Federal agency will
sion or after termination which are close out the award when it determines
necessary and not reasonably avoidable that all applicable administrative ac-
are allowable if: tions and all required work of the
(1) The costs result from obligations grant has been completed.
which were properly incurred by the (b) Reports. Within 90 days after the
grantee or subgrantee before the effec- expiration or termination of the grant,
tive date of suspension or termination, the grantee must submit all financial,
are not in anticipation of it, and, in the performance, and other reports re-
case of a termination, are quired as a condition of the grant.
noncancellable, and, Upon request by the grantee, Federal
(2) The costs would be allowable if agencies may extend this timeframe.
the award were not suspended or ex- These may include but are not limited
pired normally at the end of the fund- to:
ing period in which the termination (1) Final performance or progress re-
takes effect. port.
(d) Relationship to debarment and sus- (2) Financial Status Report (SF 269) or
pension. The enforcement remedies Outlay Report and Request for Reim-
identified in this section, including bursement for Construction Programs
suspension and termination, do not (SF–271) (as applicable).
preclude grantee or subgrantee from (3) Final request for payment (SF–270)
being subject to ‘‘Debarment and Sus- (if applicable).
pension’’ under E.O. 12549 (see § 18.35). (4) Invention disclosure (if applicable).
(5) Federally-owned property report:
§ 18.44 Termination for convenience. In accordance with § 18.32(f), a grantee
Except as provided in § 18.43 awards must submit an inventory of all feder-
may be terminated in whole or in part ally owned property (as distinct from
only as follows: property acquired with grant funds) for
(a) By the awarding agency with the which it is accountable and request dis-
consent of the grantee or subgrantee in position instructions from the Federal
which case the two parties shall agree agency of property no longer needed.
upon the termination conditions, in- (c) Cost adjustment. The Federal agen-
cluding the effective date and in the cy will, within 90 days after receipt of
case of partial termination, the portion reports in paragraph (b) of this section,
make upward or downward adjust-
to be terminated, or
ments to the allowable costs.
(b) By the grantee or subgrantee
(d) Cash adjustments. (1) The Federal
upon written notification to the award-
agency will make prompt payment to
ing agency, setting forth the reasons
the grantee for allowable reimbursable
for such termination, the effective costs.
date, and in the case of partial termi-
(2) The grantee must immediately re-
nation, the portion to be terminated. fund to the Federal agency any balance
However, if, in the case of a partial ter- of unobligated (unencumbered) cash
mination, the awarding agency deter- advanced that is not authorized to be
mines that the remaining portion of retained for use on other grants.
the award will not accomplish the pur-
poses for which the award was made, § 18.51 Later disallowances and adjust-
the awarding agency may terminate ments.
the award in its entirety under either The closeout of a grant does not af-
§ 18.43 or paragraph (a) of this section. fect:
(a) The Federal agency’s right to dis-
allow costs and recover funds on the
basis of a later audit or other review;
148
(b) The grantee’s obligation to return 19.12 Forms for applying for Federal assist-
any funds due as a result of later re- ance.
funds, corrections, or other trans- 19.13 Debarment and suspension.
19.14 Special award conditions.
actions; 19.15 Metric system of measurement.
(c) Records retention as required in 19.16 Resource Conservation and Recovery
§ 18.42; Act.
(d) Property management require- 19.17 Certifications and representations.
ments in §§ 18.31 and 18.32; and
(e) Audit requirements in § 18.26. Subpart C—Post-Award Requirements
§ 18.52 Collection of amounts due. FINANCIAL AND PROGRAM MANAGEMENT
(a) Any funds paid to a grantee in ex- 19.20 Purpose of financial and program man-
agement.
cess of the amount to which the grant- 19.21 Standards for financial management
ee is finally determined to be entitled systems.
under the terms of the award con- 19.22 Payment.
stitute a debt to the Federal Govern- 19.23 Cost sharing or matching.
ment. If not paid within a reasonable 19.24 Program income.
period after demand, the Federal agen- 19.25 Revision of budget and program plans.
cy may reduce the debt by: 19.26 Non-Federal audits.
19.27 Allowable costs.
(1) Making an adminstrative offset 19.28 Period of availability of funds.
against other requests for reimburse-
ments, PROPERTY STANDARDS
(2) Withholding advance payments 19.30 Purpose of property standards.
otherwise due to the grantee, or 19.31 Insurance coverage.
(3) Other action permitted by law. 19.32 Real property.
(b) Except where otherwise provided 19.33 Federally-owned and exempt property.
by statutes or regulations, the Federal 19.34 Equipment.
agency will charge interest on an over- 19.35 Supplies and other expendable prop-
erty.
due debt in accordance with the Fed-
19.36 Intangible property.
eral Claims Collection Standards (4 19.37 Property trust relationship.
CFR Ch. II). The date from which inter-
est is computed is not extended by liti- PROCUREMENT STANDARDS
gation or the filing of any form of ap- 19.40 Purpose of procurement standards.
peal. 19.41 Recipient responsibilities.
19.42 Codes of conduct.
Subpart E—Entitlements 19.43 Competition.
19.44 Procurement procedures.
[Reserved] 19.45 Cost and price analysis.
19.46 Procurement records.
PART 19—UNIFORM ADMINISTRA- 19.47 Contract administration.
19.48 Contract provisions.
TIVE REQUIREMENTS FOR GRANTS
AND AGREEMENTS WITH INSTITU- REPORTS AND RECORDS
TIONS OF HIGHER EDUCATION, 19.50 Purpose of reports and records.
HOSPITALS, AND OTHER NON- 19.51 Monitoring and reporting program
PROFIT ORGANIZATIONS performance.
19.52 Financial reporting.
19.53 Retention and access requirements for
Subpart A—General
records.
Sec.
TERMINATION AND ENFORCEMENT
19.1 Purpose.
19.2 Definitions. 19.60 Purpose of termination and enforce-
19.3 Effect on other issuances. ment.
19.4 Deviations. 19.61 Termination.
19.5 Subawards. 19.62 Enforcement.
19.6 Availability of material referenced in
this part. Subpart D—After-the-Award Requirements
Subpart B—Pre-Award Requirements 19.70 Purpose.
19.71 Closeout procedures.
19.10 Purpose. 19.72 Subsequent adjustments and con-
19.11 Pre-award policies. tinuing responsibilities.
149
19.73 Collection of amounts due. surance, shall be included or excluded
APPENDIX A TO PART 19—CONTRACT PROVI- from the unit acquisition cost in ac-
SIONS cordance with the recipient’s regular
AUTHORITY: 49 U.S.C. 322(a). accounting practices.
(d) Advance means a payment made
SOURCE: 59 FR 15639, Apr. 4, 1994, unless
otherwise noted. by Treasury check or other appropriate
payment mechanism to a recipient
upon its request either before outlays
Subpart A—General are made by the recipient or through
§ 19.1 Purpose. the use of predetermined payment
schedules.
This part establishes uniform admin- (e) Award means financial assistance
istrative requirements for Federal that provides support or stimulation to
grants and agreements awarded to in-
accomplish a public purpose. Awards
stitutions of higher education, hos-
include grants and other agreements in
pitals, and other non-profit organiza-
the form of money or property in lieu
tions. Federal awarding agencies shall
of money, by the Federal Government
not impose additional or inconsistent
to an eligible recipient. The term does
requirements, except as provided in
not include: Technical assistance,
§§ 19.4 and 19.14 or unless specifically
which provides services instead of
required by Federal statute or execu-
money; other assistance in the form of
tive order. Non-profit organizations
loans, loan guarantees, interest sub-
that implement Federal programs for
sidies, or insurance; direct payments of
the States are also subject to State re-
quirements. any kind to individuals; and, contracts
which are required to be entered into
§ 19.2 Definitions. and administered under procurement
laws and regulations.
(a) Accrued expenditures means the
(f) Cash contributions means the re-
charges incurred by the recipient dur-
cipient’s cash outlay, including the
ing a given period requiring the provi-
sion of funds for: outlay of money contributed to the re-
cipient by third parties.
(1) Goods and other tangible property
received; (g) Closeout means the process by
(2) Services performed by employees, which a Federal awarding agency de-
contractors, subrecipients, and other termines that all applicable adminis-
payees; and, trative actions and all required work of
(3) Other amounts becoming owed the award have been completed by the
under programs for which no current recipient and Federal awarding agency.
services or performance is required. (h) Contract means a procurement
(b) Accrued income means the sum of: contract under an award or subaward,
(1) Earnings during a given period and a procurement subcontract under a
from: recipient’s or subrecipient’s contract.
(i) Services performed by the recipi- (i) Cost sharing or matching means
ent, and that portion of project or program
(ii) Goods and other tangible prop- costs not borne by the Federal Govern-
erty delivered to purchasers; and ment.
(2) Amounts becoming owed to the (j) Date of completion means the date
recipient for which no current services on which all work under an award is
or performance is required by the re- completed or the date on the award
cipient. document, or any supplement or
(c) Acquisition cost of equipment means amendment thereto, on which Federal
the net invoice price of the equipment, sponsorship ends.
including the cost of modifications, at- (k) Disallowed costs means those
tachments, accessories, or auxiliary charges to an award that the Federal
apparatus necessary to make the prop- awarding agency determines to be un-
erty usable for the purpose for which it allowable, in accordance with the ap-
was acquired. Other charges, such as plicable Federal cost principles or
the cost of installation, transportation, other terms and conditions contained
taxes, duty or protective in-transit in- in the award.
150
(l) Equipment means tangible non- patent applications and such property
expendable personal property including as loans, notes and other debt instru-
exempt property charged directly to ments, lease agreements, stock and
the award having a useful life of more other instruments of property owner-
than one year and an acquisition cost ship, whether considered tangible or in-
of $5,000 or more per unit. However, tangible.
consistent with recipient policy, lower (t) Obligations means the amounts of
limits may be established. orders placed, contracts and grants
(m) Excess property means property awarded, services received and similar
under the control of any Federal transactions during a given period that
awarding agency that, as determined require payment by the recipient dur-
by the head thereof, is no longer re- ing the same or a future period.
quired for its needs or the discharge of (u) Outlays or expenditures means
its responsibilities. charges made to the project or pro-
(n) Exempt property means tangible gram. They may be reported on a cash
personal property acquired in whole or or accrual basis. For reports prepared
in part with Federal funds, where the on a cash basis, outlays are the sum of
Federal awarding agency has statutory cash disbursements for direct charges
authority to vest title in the recipient for goods and services, the amount of
without further obligation to the Fed- indirect expense charged, the value of
eral Government. An example of ex- third party in-kind contributions ap-
empt property authority is contained plied and the amount of cash advances
in the Federal Grant and Cooperative and payments made to subrecipients.
Agreement Act (31 U.S.C. 6306), for For reports prepared on an accrual
property acquired under an award to basis, outlays are the sum of cash dis-
conduct basic or applied research by a bursements for direct charges for goods
non-profit institution of higher edu- and services, the amount of indirect ex-
cation or non-profit organization pense incurred, the value of in-kind
whose principal purpose is conducting contributions applied, and the net in-
scientific research. crease (or decrease) in the amounts
(o) Federal awarding agency means owed by the recipient for goods and
the Federal agency that provides an other property received, for services
award to the recipient. Except for the performed by employees, contractors,
specific review requirements for devi- subrecipients and other payees and
ations in § 19.4, for Department of other amounts becoming owed under
Transportation (DOT) awards, it means programs for which no current services
the DOT operating administration or or performance are required.
departmental office that made the (v) Personal property means property
award. of any kind except real property. It
(p) Federal funds authorized means the may be tangible, having physical exist-
total amount of Federal funds obli- ence, or intangible, having no physical
gated by the Federal Government for existence, such as copyrights, patents,
use by the recipient. This amount may or securities.
include any authorized carryover of un- (w) Prior approval means written ap-
obligated funds from prior funding pe- proval by an authorized official evi-
riods when permitted by agency regula- dencing prior consent.
tions or agency implementing instruc- (x) Program income means gross in-
tions. come earned by the recipient that is di-
(q) Federal share of real property, rectly generated by a supported activ-
equipment, or supplies means that per- ity or earned as a result of the award
centage of the property’s acquisition (see exclusions in §§ 19.24 (e) and (h)).
costs and any improvement expendi- Program income includes, but is not
tures paid with Federal funds. limited to, income from fees for serv-
(r) Funding period means the period of ices performed, the use or rental of real
time when Federal funding is available or personal property acquired under
for obligation by the recipient. federally-funded projects, the sale of
(s) Intangible property and debt instru- commodities or items fabricated under
ments means, but is not limited to, an award, license fees and royalties on
trademarks, copyrights, patents and patents and copyrights, and interest on
151
loans made with award funds. Interest that are supported at universities, col-
earned on advances of Federal funds is leges, and other non-profit institu-
not program income. Except as other- tions. ‘‘Research’’ is defined as a sys-
wise provided in Federal awarding tematic study directed toward fuller
agency regulations or the terms and scientific knowledge or understanding
conditions of the award, program in- of the subject studied. ‘‘Development’’
come does not include the receipt of is the systematic use of knowledge and
principal on loans, rebates, credits, dis- understanding gained from research di-
counts, etc., or interest earned on any rected toward the production of useful
of them. materials, devices, systems, or meth-
(y) Project costs means all allowable ods, including design and development
costs, as set forth in the applicable of prototypes and processes. The term
Federal cost principles, incurred by a research also includes activities in-
recipient and the value of the contribu- volving the training of individuals in
tions made by third parties in accom-
research techniques where such activi-
plishing the objectives of the award
ties utilize the same facilities as other
during the project period.
research and development activities
(z) Project period means the period es-
tablished in the award document dur- and where such activities are not in-
ing which Federal sponsorship begins cluded in the instruction function.
and ends. (ee) Small awards means a grant or
(aa) Property means, unless otherwise cooperative agreement not exceeding
stated, real property, equipment, in- the small purchase threshold fixed at
tangible property and debt instru- 41 U.S.C. 403(11) (currently $25,000).
ments. (ff) Subaward means an award of fi-
(bb) Real property means land, includ- nancial assistance in the form of
ing land improvements, structures and money, or property in lieu of money,
appurtenances thereto, but excludes made under an award by a recipient to
movable machinery and equipment. an eligible subrecipient or by a sub-
(cc) Recipient means an organization recipient to a lower tier subrecipient.
receiving financial assistance directly The term includes financial assistance
from Federal awarding agencies to when provided by any legal agreement,
carry out a project or program. The even if the agreement is called a con-
term includes public and private insti- tract, but does not include procure-
tutions of higher education, public and ment of goods and services nor does it
private hospitals, and other quasi-pub- include any form of assistance which is
lic and private non-profit organizations excluded from the definition of
such as, but not limited to, community ‘‘award’’ in paragraph (e) of this sec-
action agencies, research institutes, tion.
educational associations, and health
(gg) Subrecipient means the legal enti-
centers. The term may include com-
ty to which a subaward is made and
mercial organizations, foreign or inter-
which is accountable to the recipient
national organizations (such as agen-
for the use of the funds provided. The
cies of the United Nations) which are
recipients, subrecipients, or contrac- term may include foreign or inter-
tors or subcontractors of recipients or national organizations (such as agen-
subrecipients at the discretion of the cies of the United Nations) at the dis-
Federal awarding agency. The term cretion of the Federal awarding agen-
does not include government-owned cy.
contractor-operated facilities or re- (hh) Supplies means all personal prop-
search centers providing continued erty excluding equipment, intangible
support for mission-oriented, large- property, and debt instruments as de-
scale programs that are government- fined in this section, and inventions of
owned or controlled, or are designated a contractor conceived or first actually
as federally-funded research and devel- reduced to practice in the performance
opment centers. of work under a funding agreement
(dd) Research and development means (‘‘subject inventions’’), as defined in 37
all research activities, both basic and CFR part 401, ‘‘Rights to Inventions
applied, and all development activities Made by Nonprofit Organizations and
152
Small Business Firms Under Govern- fied program regulations, program

ment Grants, Contracts, and Coopera- manuals, handbooks and other non-reg-
tive Agreements.’’ ulatory materials which are incon-
(ii) Suspension means an action by a sistent with the requirements of this
Federal awarding agency that tempo- part are superseded, except to the ex-
rarily withdraws Federal sponsorship tent they are required by statute, or
under an award, pending corrective ac- authorized in accordance with the devi-
tion by the recipient or pending a deci- ations provision in § 19.4.
sion to terminate the award by the
Federal awarding agency. Suspension § 19.4 Deviations.
of an award is a separate action from The Office of Management and Budg-
suspension under Federal agency regu- et (OMB) may grant exceptions for
lations implementing E.O.s 12549 and classes of grants or recipients subject
12689, ‘‘Debarment and Suspension.’’ to the requirements of this part when
(jj) Termination means the cancella- exceptions are not prohibited by stat-
tion of Federal sponsorship, in whole or ute. However, in the interest of max-
in part, under an agreement at any imum uniformity, exceptions from the
time prior to the date of completion. requirements of this part shall be per-
(kk) Third party in-kind contributions mitted only in unusual circumstances.
means the value of non-cash contribu- Federal awarding agencies may apply
tions provided by non-Federal third more restrictive requirements to a
parties. Third party in-kind contribu- class of recipients when approved by
tions may be in the form of real prop- OMB. All requests for class deviations
erty, equipment, supplies and other ex- shall be processed through the Assist-
pendable property, and the value of ant Secretary for Administration. Fed-
goods and services directly benefiting eral awarding agencies may apply less
and specifically identifiable to the restrictive requirements when award-
project or program. ing small awards, except for those re-
(ll) Unliquidated obligations, for finan- quirements which are statutory, sub-
cial reports prepared on a cash basis, ject to the concurrence of the Assist-
means the amount of obligations in- ant Secretary for Administration. Ex-
curred by the recipient that have not ceptions on a case-by-case basis may
been paid. For reports prepared on an also be made by Federal awarding
accrued expenditure basis, they rep- agencies, with the concurrence of the
resent the amount of obligations in- Assistant Secretary for Administration
curred by the recipient for which an to ensure conformance with Depart-
outlay has not been recorded. ment of Transportation grant adminis-
(mm) Unobligated balance means the tration policies.
portion of the funds authorized by the
Federal awarding agency that has not § 19.5 Subawards.
been obligated by the recipient and is Unless sections of this part specifi-
determined by deducting the cumu- cally exclude subrecipients from cov-
lative obligations from the cumulative erage, the provisions of this part shall
funds authorized. be applied to subrecipients performing
(nn) Unrecovered indirect cost means work under awards if such subrecipi-
the difference between the amount ents are institutions of higher edu-
awarded and the amount which could cation, hospitals or other non-profit or-
have been awarded under the recipi- ganizations. State and local govern-
ent’s approved negotiated indirect cost ment subrecipients are subject to the
rate. provisions of 49 CFR part 18, ‘‘Uniform
(oo) Working capital advance means a Administrative Requirements for
procedure whereby funds are advanced Grants and Cooperative Agreements to
to the recipient to cover its estimated State and Local Governments.’’
disbursement needs for a given initial
period. § 19.6 Availability of material ref-
erenced in this part.
§ 19.3 Effect on other issuances. (a) Copies of Federal Transit Admin-
For awards subject to this part, all istration (FTA) documents identified
administrative requirements of codi- in this part may be obtained by calling
153
the FTA Administrative Services Divi- agency in place of or as a supplement

sion at (202) 366–4865. to the Standard Form 424 (SF–424) se-
(b) Copies of Federal Aviation Ad- ries.
ministration (FAA) documents identi- (b) Applicants shall use the SF–424
fied in this part may be obtained by series or those forms and instructions
calling the FAA Program Guidance prescribed by the Federal awarding
Branch at (202) 267–3831. agency.
(c) For Federal programs covered by
Subpart B—Pre-Award E.O. 12372, ‘‘Intergovernmental Review
Requirements of Federal Programs,’’ as implemented
at 49 CFR part 17, Intergovernmental
§ 19.10 Purpose. review of Department of Transpor-
Sections 19.11 through 19.17 pre- tation programs and activities, the ap-
scribes forms and instructions and plicant shall complete the appropriate
other pre-award matters to be used in sections of the SF–424 (Application for
applying for Federal awards. Federal Assistance) indicating whether
the application was subject to review
§ 19.11 Pre-award policies. by the State Single Point of Contact
(a) Use of grants and cooperative agree- (SPOC). The name and address of the
ments, and contracts. In each instance, SPOC for a particular State can be ob-
the Federal awarding agency shall detained from the Federal awarding agen-
cide on the appropriate award instru- cy or the Catalog of Federal Domestic
ment (i.e., grant, cooperative agree- Assistance. The SPOC shall advise the
ment, or contract). The Federal Grant applicant whether the program for
and Cooperative Agreement Act (31 which application is made has been se-
U.S.C. 6301–08) governs the use of lected by that State for review.
grants, cooperative agreements and (d) Federal awarding agencies that do
contracts. A grant or cooperative not use the SF–424 form should indi-
agreement shall be used only when the cate whether the application is subject
principal purpose of a transaction is to to review by the State under E.O. 12372.
accomplish a public purpose of support
§ 19.13 Debarment and suspension.
or stimulation authorized by Federal
statute. The statutory criterion for Federal awarding agencies and re-
choosing between grants and coopera- cipients shall comply with the non-
tive agreements is that for the latter, procurement debarment and suspension
‘‘substantial involvement is expected rule, 49 CFR part 29, ‘‘Governmentwide
between the executive agency and the Debarment and Suspension (Non-
State, local government, or other re- procurement) and Governmentwide Re-
cipient when carrying out the activity quirements for Drug-Free Workplace
contemplated in the agreement.’’ Con- (Grants),’’ implementing E.O.s 12549
tracts shall be used when the principal and 12689, ‘‘Debarment and Suspen-
purpose is acquisition of property or sion.’’ This rule restricts subawards
services for the direct benefit or use of and contracts with certain parties that
the Federal Government. are debarred, suspended or otherwise
(b) Public notice and priority setting. excluded from or ineligible for partici-
Federal awarding agencies shall notify pation in Federal assistance programs
the public of its intended funding prior- or activities.
ities for discretionary grant programs,
unless funding priorities are estab- § 19.14 Special award conditions.
lished by Federal statute. (a) Federal awarding agencies may
impose additional requirements as
§ 19.12 Forms for applying for Federal needed, if an applicant or recipient:
assistance. (1) Has a history of poor performance,
(a) Federal awarding agencies shall (2) Is not financially stable,
comply with the applicable report (3) Has a management system that
clearance requirements of 5 CFR part does not meet the standards prescribed
1320, ‘‘Controlling Paperwork Burdens in this part,
on the Public,’’ with regard to all (4) Has not conformed to the terms
forms used by the Federal awarding and conditions of a previous award, or
154
(5) Is not otherwise responsible. ingly, State and local institutions of

(b) Additional requirements may higher education, hospitals, and non-
only be imposed provided that such ap- profit organizations that receive direct
plicant or recipient is notified in writ- Federal awards or other Federal funds
ing as to: shall give preference in their procure-
(1) The nature of the additional re- ment programs funded with Federal
quirements, funds to the purchase of recycled prod-
(2) The reason why the additional re- ucts pursuant to the EPA guidelines.
quirements are being imposed,
(3) The nature of the corrective ac- § 19.17 Certifications and representa-
tion needed, tions.
(4) The time allowed for completing Unless prohibited by statute or codi-
the corrective actions, and fied regulation, each Federal awarding
(5) The method for requesting recon- agency is authorized and encouraged to
sideration of the additional require- allow recipients to submit certifi-
ments imposed. cations and representations required
(c) A copy of such notices shall be by statute, executive order, or regula-
sent to the Assistant Secretary for Ad- tion on an annual basis, if the recipi-
ministration. Any special conditions ents have ongoing and continuing rela-
shall be promptly removed once the tionships with the agency. Annual cer-
conditions that prompted them have tifications and representations shall be
been corrected. signed by responsible officials with the
authority to ensure recipients’ compli-
§ 19.15 Metric system of measurement. ance with the pertinent requirements.
The Metric Conversion Act, as
amended by the Omnibus Trade and Subpart C—Post-Award
Competitiveness Act (15 U.S.C. 205), de- Requirements
clares that the metric system is the
preferred measurement system for U.S. FINANCIAL AND PROGRAM MANAGEMENT
trade and commerce. The Act requires
each Federal agency to establish a date § 19.20 Purpose of financial and pro-
or dates in consultation with the Sec- gram management.
retary of Commerce, when the metric Sections 19.21 through 19.28 prescribe
system of measurement will be used in standards for financial management
the agency’s procurements, grants, and systems, methods for making pay-
other business-related activities. Met- ments and rules for: satisfying cost
ric implementation may take longer sharing and matching requirements,
where the use of the system is initially accounting for program income, budget
impractical or likely to cause signifi- revision approvals, making audits, de-
cant inefficiencies in the accomplish- termining allowability of cost, and es-
ment of federally-funded activities. tablishing fund availability.
Federal awarding agencies shall follow
the provisions of E.O. 12770, ‘‘Metric § 19.21 Standards for financial man-
Usage in Federal Government Pro- agement systems.
grams.’’ (a) Federal awarding agencies shall
require recipients to relate financial
§ 19.16 Resource Conservation and Re- data to performance data and develop
covery Act. unit cost information whenever prac-
Under the Act, any State agency or tical.
agency of a political subdivision of a (b) Recipients’ financial management
State which is using appropriated Fed- systems shall provide for the following.
eral funds must comply with section (1) Accurate, current and complete
6002. Section 6002 requires that pref- disclosure of the financial results of
erence be given in procurement pro- each federally-sponsored project or
grams to the purchase of specific prod- program in accordance with the report-
ucts containing recycled materials ing requirements set forth in § 19.52. If
identified in guidelines developed by a Federal awarding agency requires re-
the Environmental Protection Agency porting on an accrual basis from a re-
(EPA) (40 CFR parts 247–254). Accord- cipient that maintains its records on
155
other than an accrual basis, the recipi- not deemed adequate to protect the in-
ent shall not be required to establish terest of the Federal Government.
an accrual accounting system. These (d) The Federal awarding agency may
recipients may develop such accrual require adequate fidelity bond coverage
data for its reports on the basis of an where the recipient lacks sufficient
analysis of the documentation on hand. coverage to protect the Federal Gov-
(2) Records that identify adequately ernment’s interest.
the source and application of funds for (e) Where bonds are required in the
federally-sponsored activities. These situations described above, the bonds
records shall contain information per- shall be obtained from companies hold-
taining to Federal awards, authoriza- ing certificates of authority as accept-
tions, obligations, unobligated bal- able sureties, as prescribed in 31 CFR
ances, assets, outlays, income and in- part 223, ‘‘Surety Companies Doing
terest. Business with the United States.’’
(3) Effective control over and ac-
countability for all funds, property and § 19.22 Payment.
other assets. Recipients shall ade- (a) Payment methods shall minimize
quately safeguard all such assets and
the time elapsing between the transfer
assure they are used solely for author-
of funds from the United States Treas-
ized purposes.
ury and the issuance or redemption of
(4) Comparison of outlays with budg- checks, warrants, or payment by other
et amounts for each award. Whenever means by the recipients. Payment
appropriate, financial information methods of State agencies or instru-
should be related to performance and mentalities shall be consistent with
unit cost data.
Treasury-State CMIA agreements or
(5) Written procedures to minimize default procedures codified at 31 CFR
the time elapsing between the transfer part 205.
of funds to the recipient from the U.S.
(b)(1) Recipients are to be paid in ad-
Treasury and the issuance or redemp-
vance, provided they maintain or dem-
tion of checks, warrants or payments
onstrate the willingness to maintain:
by other means for program purposes
by the recipient. To the extent that the (i) Written procedures that minimize
provisions of the Cash Management Im- the time elapsing between the transfer
provement Act (CMIA) (Pub. L. 101–453) of funds and disbursement by the re-
govern, payment methods of State cipient, and
agencies, instrumentalities, and fiscal (ii) Financial management systems
agents shall be consistent with CMIA that meet the standards for fund con-
Treasury-State Agreements or the trol and accountability as established
CMIA default procedures codified at 31 in section § 19.21.
CFR part 205, ‘‘Withdrawal of Cash (2) Cash advances to a recipient orga-
from the Treasury for Advances under nization shall be limited to the min-
Federal Grant and Other Programs.’’ imum amounts needed and be timed to
(6) Written procedures for deter- be in accordance with the actual, im-
mining the reasonableness, allocability mediate cash requirements of the re-
and allowability of costs in accordance cipient organization in carrying out
with the provisions of the applicable the purpose of the approved program or
Federal cost principles and the terms project. The timing and amount of cash
and conditions of the award. advances shall be as close as is admin-
(7) Accounting records including cost istratively feasible to the actual dis-
accounting records that are supported bursements by the recipient organiza-
by source documentation. tion for direct program or project costs
(c) Where the Federal Government and the proportionate share of any al-
guarantees or insures the repayment of lowable indirect costs.
money borrowed by the recipient, the (c) Whenever possible, advances shall
Federal awarding agency, at its discre- be consolidated to cover anticipated
tion, may require adequate bonding cash needs for all awards made by the
and insurance if the bonding and insur- Federal awarding agency to the recipi-
ance requirements of the recipient are ent.
156
(1) Advance payment mechanisms infor recipients unwilling or unable to

clude, but are not limited to, Treasury provide timely advances to their sub-
check and electronic funds transfer. recipient to meet the subrecipient’s ac-
(2) Advance payment mechanisms are tual cash disbursements.
subject to 31 CFR part 205. (g) To the extent available, recipi-
(3) Recipients shall be authorized to ents shall disburse funds available from
submit requests for advances and reim- repayments to and interest earned on a
bursements at least monthly when revolving fund, program income, re-
electronic fund transfers are not used. bates, refunds, contract settlements,
(d) Requests for Treasury check ad- audit recoveries and interest earned on
vance payment shall be submitted on such funds before requesting additional
SF–270, ‘‘Request for Advance or Reim- cash payments.
bursement,’’ or other forms as may be (h) Unless otherwise required by stat-
authorized by OMB. This form is not to ute, Federal awarding agencies shall
be used when Treasury check advance not withhold payments for proper
payments are made to the recipient charges made by recipients at any time
automatically through the use of a pre- during the project period unless the
determined payment schedule or if pre- conditions in paragraphs (h)(1) or (2) of
cluded by special Federal awarding this section apply.
agency instructions for electronic (1) A recipient has failed to comply
funds transfer.
with the project objectives, the terms
(e) Reimbursement is the preferred
and conditions of the award, or Federal
method when the requirements in para-
reporting requirements.
graph (b) cannot be met. Federal
awarding agencies may also use this (2) The recipient or subrecipient is
method on any construction agree- delinquent in a debt to the United
ment, or if the major portion of the States as defined in OMB Circular A–
construction project is accomplished 129, ‘‘Managing Federal Credit Pro-
through private market financing or grams.’’ Under such conditions, the
Federal loans, and the Federal assist- Federal awarding agency may, upon
ance constitutes a minor portion of the reasonable notice, inform the recipient
project. that payments shall not be made for
(1) When the reimbursement method obligations incurred after a specified
is used, the Federal awarding agency date until the conditions are corrected
shall make payment within 30 days or the indebtedness to the Federal Gov-
after receipt of the billing, unless the ernment is liquidated.
billing is improper. (i) Standards governing the use of
(2) Recipients shall be authorized to banks and other institutions as deposi-
submit request for reimbursement at tories of funds advanced under awards
least monthly when electronic funds are as follows.
transfers are not used. (1) Except for situations described in
(f) If a recipient cannot meet the cri- paragraph (i)(2) of this section, Federal
teria for advance payments and the awarding agencies shall not require
Federal awarding agency has deter- separate depository accounts for funds
mined that reimbursement is not fea- provided to a recipient or establish any
sible because the recipient lacks suffi- eligibility requirements for deposi-
cient working capital, the Federal tories for funds provided to a recipient.
awarding agency may provide cash on a However, recipients must be able to ac-
working capital advance basis. Under count for the receipt, obligation and
this procedure, the Federal awarding expenditure of funds.
agency shall advance cash to the re- (2) Advances of Federal funds shall be
cipient to cover its estimated disburse- deposited and maintained in insured
ment needs for an initial period gen- accounts whenever possible.
erally geared to the awardee’s dis- (j) Consistent with the national goal
bursing cycle. Thereafter, the Federal of expanding the opportunities for
awarding agency shall reimburse the women-owned and minority-owned
recipient for its actual cash disburse- business enterprises, recipients shall be
ments. The working capital advance encouraged to use women-owned and
method of payment shall not be used minority-owned banks (a bank which is
157
owned at least 50 percent by women or this form for construction programs in

minority group members). lieu of the SF–271, ‘‘Outlay Report and
(k) Recipients shall maintain ad- Request for Reimbursement for Con-
vances of Federal funds in interest struction Programs.’’
bearing accounts, unless the conditions (2) SF–271, Outlay Report and Re-
in paragraphs (k)(1), (2) or (3) of this quest for Reimbursement for Construc-
section apply. tion Programs. Each Federal awarding
(1) The recipient receives less than agency shall adopt the SF–271 as the
$120,000 in Federal awards per year. standard form to be used for requesting
(2) The best reasonably available in- reimbursement for construction pro-
terest bearing account would not be ex- grams. However, a Federal awarding
pected to earn interest in excess of $250 agency may substitute the SF–270
per year on Federal cash balances. when the Federal awarding agency de-
(3) The depository would require an termines that it provides adequate in-
average or minimum balance so high formation to meet Federal needs.
that it would not be feasible within the
expected Federal and non-Federal cash § 19.23 Cost sharing or matching.
resources. (a) All contributions, including cash
(l) For those entities where CMIA and third party in-kind, shall be ac-
and its implementing regulations do cepted as part of the recipient’s cost
not apply, interest earned on Federal sharing or matching when such con-
advances deposited in interest bearing tributions meet all of the following cri-
accounts shall be remitted annually to teria.
Department of Health and Human (1) Are verifiable from the recipient’s
Services, Payment Management Sys- records.
tem, P.O. Box 6021, Rockville, MD
(2) Are not included as contributions
20852. Interest amounts up to $250 per
for any other federally-assisted project
year may be retained by the recipient
or program.
for administrative expense. In keeping
(3) Are necessary and reasonable for
with Electric Funds Transfer rules, (31
proper and efficient accomplishment of
CFR part 206), interest should be remit-
project or program objectives.
ted to the HHS Payment Management
System through an electric medium (4) Are allowable under the applica-
such as the FEDWIRE Deposit system. ble cost principles.
Recipients which do not have this ca- (5) Are not paid by the Federal Gov-
pability should use a check. State uni- ernment under another award, except
versities and hospitals shall comply where authorized by Federal statute to
with CMIA, as it pertains to interest. If be used for cost sharing or matching.
an entity subject to CMIA uses its own (6) Are provided for in the approved
funds to pay pre-award costs for discre- budget when required by the Federal
tionary awards without prior written awarding agency.
approval from the Federal awarding (7) Conform to other provisions of
agency, it waives its right to recover this part, as applicable.
the interest under CMIA. (b) Unrecovered indirect costs may be
(m) Except as noted elsewhere in this included as part of cost sharing or
part, only the following forms shall be matching only with the prior approval
authorized for the recipients in re- of the Federal awarding agency.
questing advances and reimburse- (c) Values for recipient contributions
ments. Federal agencies shall not re- of services and property shall be estab-
quire more than an original and two lished in accordance with the applica-
copies of these forms. ble cost principles. If a Federal award-
(1) SF–270, Request for Advance or ing agency authorizes recipients to do-
Reimbursement. Each Federal award- nate buildings or land for construction/
ing agency shall adopt the SF–270 as a facilities acquisition projects or long-
standard form for all nonconstruction term use, the value of the donated
programs when electronic funds trans- property for cost sharing or matching
fer or predetermined advance methods shall be the lesser of (1) or (2).
are not used. Federal awarding agen- (1) The certified value of the remain-
cies, however, have the option of using ing life of the property recorded in the
158
recipient’s accounting records at the may be claimed as cost sharing or

time of donation. matching.
(2) The current fair market value. (2) If the purpose of the award is to
However, when there is sufficient jus- support activities that require the use
tification, the Federal awarding agen- of equipment, buildings or land, nor-
cy may approve the use of the current mally only depreciation or use charges
fair market value of the donated prop- for equipment and buildings may be
erty, even if it exceeds the certified made. However, the full value of equip-
value at the time of donation to the ment or other capital assets and fair
project. rental charges for land may be allowed,
(d) Volunteer services furnished by provided that the Federal awarding
professional and technical personnel, agency has approved the charges.
consultants, and other skilled and un- (h) The value of donated property
skilled labor may be counted as cost shall be determined in accordance with
sharing or matching if the service is an the usual accounting policies of the re-
integral and necessary part of an ap- cipient, with the following qualifica-
proved project or program. Rates for tions.
volunteer services shall be consistent (1) The value of donated land and
with those paid for similar work in the buildings shall not exceed its fair mar-
recipient’s organization. In those in- ket value at the time of donation to
stances in which the required skills are the recipient as established by an inde-
not found in the recipient organization, pendent appraiser (e.g., certified real
rates shall be consistent with those property appraiser or General Services
paid for similar work in the labor mar- Administration representative) and
ket in which the recipient competes for certified by a responsible official of the
the kind of services involved. In either recipient.
case, paid fringe benefits that are rea- (2) The value of donated equipment
sonable, allowable, and allocable may shall not exceed the fair market value
be included in the valuation. of equipment of the same age and con-
(e) When an employer other than the dition at the time of donation.
recipient furnishes the services of an (3) The value of donated space shall
employee, these services shall be val- not exceed the fair rental value of com-
ued at the employee’s regular rate of parable space as established by an inde-
pay (plus an amount of fringe benefits pendent appraisal of comparable space
that are reasonable, allowable, and al- and facilities in a privately-owned
locable, but exclusive of overhead building in the same locality.
costs), provided these services are in (4) The value of loaned equipment
the same skill for which the employee shall not exceed its fair rental value.
is normally paid. (5) The following requirements per-
(f) Donated supplies may include tain to the recipient’s supporting
such items as expendable equipment, records for in-kind contributions from
office supplies, laboratory supplies or third parties.
workshop and classroom supplies. (i) Volunteer services shall be docu-
Value assessed to donated supplies in- mented and, to the extent feasible, sup-
cluded in the cost sharing or matching ported by the same methods used by
share shall be reasonable and shall not the recipient for its own employees.
exceed the fair market value of the (ii) The basis for determining the
property at the time of the donation. valuation for personal service, mate-
(g) The method used for determining rial, equipment, buildings and land
cost sharing or matching for donated shall be documented.
equipment, buildings and land for (iii) Section 18(e) of the Federal
which title passes to the recipient may Transit Act, as amended, (49 U.S.C.
differ according to the purpose of the app. 1614(e)) provides that the Federal
award, if the conditions in paragraph share for operating assistance shall not
(g)(1) or (2) of this section apply. exceed 50 percent of the net cost. At
(1) If the purpose of the award is to least 50 percent of the remainder (the
assist the recipient in the acquisition local share) must be derived from
of equipment, buildings or land, the sources other than Federal funds or
total value of the donated property revenues of the system; and up to half
159
of the local share may be derived from the award or the recipient is subject to
other Federal funds. For purposes of special award conditions, as indicated
determining local share for section 18 in § 19.14.
operating assistance, the term ‘‘Fed- (e) Unless Federal awarding agency
eral funds or revenues’’ does not in- regulations or the terms and condi-
clude funds received pursuant to a tions of the award provide otherwise,
service agreement with a State or local recipients shall have no obligation to
service agency or a private social serv- the Federal Government regarding pro-
ice organization. Nonregulatory guid- gram income earned after the end of
ance is contained in FTA Circular the project period.
9040.1B, section 18 Program Guidance (f) If authorized by Federal awarding
and Grant Application Instructions, agency regulations or the terms and
Chapter III, section 7. conditions of the award, costs incident
to the generation of program income
§ 19.24 Program income. may be deducted from gross income to
(a) Federal awarding agencies shall determine program income, provided
apply the standards set forth in this these costs have not been charged to
section in requiring recipient organiza- the award.
tions to account for program income (g) Proceeds from the sale of property
related to projects financed in whole or shall be handled in accordance with the
in part with Federal funds. requirements of the Property Stand-
(b) Except as provided in paragraph ards (See §§ 19.30 through 19.37).
(h) of this section, program income (h) Unless Federal awarding agency
earned during the project period shall regulations or the terms and condition
be retained by the recipient and, in ac- of the award provide otherwise, recipi-
cordance with Federal awarding agency ents shall have no obligation to the
regulations or the terms and condi- Federal Government with respect to
tions of the award, shall be used in one program income earned from license
or more of the ways listed in the fol- fees and royalties for copyrighted ma-
lowing. terial, patents, patent applications,
(1) Added to funds committed to the trademarks, and inventions produced
project by the Federal awarding agency under an award. However, Patent and
and recipient and used to further eligi- Trademark Amendments (35 U.S.C. 18)
ble project or program objectives. apply to inventions made under an ex-
(2) Used to finance the non-Federal perimental, developmental, or research
share of the project or program. award.
(3) Deducted from the total project or (i) Section 4(a) of the Federal Transit
program allowable cost in determining Act, as amended, (49 U.S.C. app. 1603(a))
the net allowable costs on which the allows FTA recipients to retain pro-
Federal share of costs is based. gram income for allowable capital or
(c) When an agency authorizes the operating expenses, but program in-
disposition of program income as de- come may not be used to refund or re-
scribed in paragraph (b)(1) or (b)(2) of duce the local share of a grant. The
this section, program income in excess section 16 and 18 programs, however,
of any limits stipulated shall be used in operate differently. Under the special
accordance with paragraph (b)(3) of authority to set appropriate terms and
this section. conditions for the section 16(b)(2) pro-
(d) In the event that the Federal gram, program income in the form of
awarding agency does not specify in its contract service revenue may be used
regulations or the terms and condi- as local share without a proportionate
tions of the award how program income reduction in the Federal share. Simi-
is to be used, paragraph (b)(3) of this larly, section 18 allows the use of pro-
section shall apply automatically to gram income in the form of contract
all projects or programs except re- service revenue as local share without
search. For awards that support re- requiring a proportionate reduction in
search, paragraph (b)(1) of this section the Federal share. Grantees must ac-
shall apply automatically unless the count for program income in their ac-
awarding agency indicates in the terms counting systems, which are subject to
and conditions another alternative on audit. The accounting system must be
160
capable of identifying program income (7) The transfer of funds allotted for
and the purpose for which it was used. training allowances (direct payment to
Nonregulatory guidance is contained in trainees) to other categories of ex-
FTA notice N 5.5005.1, Guidance on Pro- pense.
gram Income and Sales Proceeds. (8) Unless described in the applica-
tion and funded in the approved
§ 19.25 Revision of budget and pro- awards, the subaward, transfer or con-
gram plans.
tracting out of any work under an
(a) The budget plan is the financial award. This provision does not apply to
expression of the project or program as the purchase of supplies, material,
approved during the award process. It equipment or general support services.
may include either the Federal and (d) No other prior approval require-
non-Federal share, or only the Federal ments for specific items may be im-
share, depending upon Federal award- posed unless a deviation has been ap-
ing agency requirements. It shall be re- proved by OMB.
lated to performance for program eval- (e) Except for requirements listed in
uation purposes whenever appropriate. paragraphs (c)(1) and (c)(4) of this sec-
(b) Recipients are required to report tion, Federal awarding agencies are au-
deviations from budget and program thorized, at their option, to waive cost-
plans, and request prior approvals for related and administrative prior writ-
budget and program plan revisions, in
ten approvals required by this part and
accordance with this section.
OMB Circulars A–21 and A–122. Such
(c) For nonconstruction awards, re-
waivers may include authorizing re-
cipients shall request prior approvals
cipients to do any one or more of the
from Federal awarding agencies for one
following:
or more of the following program or
(1) Incur pre-award costs 90 calendar
budget related reasons.
days prior to award or more than 90
(1) Change in the scope or the objec-
calendar days with the prior approval
tive of the project or program (even if
of the Federal awarding agency. All
there is no associated budget revision
pre-award costs are incurred at the re-
requiring prior written approval).
cipient’s risk (i.e., the Federal award-
(2) Change in a key person specified
ing agency is under no obligation to re-
in the application or award document.
imburse such costs if for any reason
(3) The absence for more than three
the recipient does not receive an award
months, or a 25 percent reduction in
or if the award is less than anticipated
time devoted to the project, by the ap-
and inadequate to cover such costs).
proved project director or principal in-
vestigator. (2) Initiate a one-time extension of
(4) The need for additional Federal the expiration date of the award of up
funding. to 12 months unless one or more of the
(5) The transfer of amounts budgeted following conditions apply. For one-
for indirect costs to absorb increases in time extensions, the recipient must no-
direct costs, or vice versa, if approval tify the Federal awarding agency in
is required by the Federal awarding writing with the supporting reasons
agency. and revised expiration date at least 10
(6) The inclusion, unless waived by days before the expiration date speci-
the Federal awarding agency, of costs fied in the award. This one-time exten-
that require prior approval in accord- sion may not be exercised merely for
ance with OMB Circular A–21, ‘‘Cost the purpose of using unobligated bal-
Principles for Institutions of Higher ances.
Education,’’ OMB Circular A–122, ‘‘Cost (i) The terms and conditions of award
Principles for Non-Profit Organiza- prohibit the extension.
tions,’’ or 45 CFR part 74 Appendix E, (ii) The extension requires additional
‘‘Principles for Determining Costs Ap- Federal funds.
plicable to Research and Development (iii) The extension involves any
under Grants and Contracts with Hos- change in the approved objectives or
pitals,’’ or 48 CFR part 31, ‘‘Contract scope of the project.
Cost Principles and Procedures,’’ as ap- (3) Carry forward unobligated bal-
plicable. ances to subsequent funding periods.
161
(4) For awards that support research, (k) For both construction and non-
unless the Federal awarding agency construction awards, Federal awarding
provides otherwise in the award or in agencies shall require recipients to no-
the agency’s regulations, the prior ap- tify the Federal awarding agency in
proval requirements described in para- writing promptly whenever the amount
graph (e) of this section are automati- of Federal authorized funds is expected
cally waived (i.e., recipients need not to exceed the needs of the recipient for
obtain such prior approvals) unless one the project period by more than $5,000
of the conditions included in paragraph or five percent of the Federal award,
(e)(2) of this section applies. whichever is greater. This notification
(f) The Federal awarding agency shall not be required if an application
may, at its option, restrict the transfer for additional funding is submitted for
of funds among direct cost categories a continuation award.
or programs, functions and activities
(l) When requesting approval for
for awards in which the Federal share
budget revisions, recipients shall use
of the project exceeds $100,000 and the
cumulative amount of such transfers the budget forms that were used in the
exceeds or is expected to exceed 10 per- application unless the Federal award-
cent of the total budget as last ap- ing agency indicates a letter of request
proved by the Federal awarding agen- suffices.
cy. No Federal awarding agency shall (m) Within 30 calendar days from the
permit a transfer that would cause any date of receipt of the request for budg-
Federal appropriation or part thereof et revisions, Federal awarding agencies
to be used for purposes other than shall review the request and notify the
those consistent with the original in- recipient whether the budget revisions
tent of the appropriation. have been approved. If the revision is
(g) All other changes to nonconstruc- still under consideration at the end of
tion budgets, except for the changes de- 30 calendar days, the Federal awarding
scribed in paragraph (j) of this section, agency shall inform the recipient in
do not require prior approval. writing of the date when the recipient
(h) For construction awards, recipi- may expect the decision.
ents shall request prior written ap-
proval promptly from Federal awarding § 19.26 Non-Federal audits.
agencies for budget revisions whenever (a) Recipients and subrecipients that
the conditions in paragraphs (h) (1), (2) are institutions of higher education or
or (3) of this section apply. other non-profit organizations (includ-
(1) The revision results from changes ing hospitals) shall be subject to the
in the scope or the objective of the audit requirements contained in the
project or program. Single Audit Act Amendments of 1996
(2) The need arises for additional (31 U.S.C. 7501–7507) and revised OMB
Federal funds to complete the project. Circular A–133, ‘‘Audits of States,
(3) A revision is desired which in-
Local Governments, and Non-Profit Or-
volves specific costs for which prior
ganizations.’’
written approval requirements may be
imposed consistent with applicable (b) State and local governments shall
OMB cost principles listed in § 19.27. be subject to the audit requirements
(i) No other prior approval require- contained in the Single Audit Act
ments for specific items may be im- Amendments of 1996 (31 U.S.C. 7501–
posed unless a deviation has been ap- 7507) and revised OMB Circular A–133,
proved by OMB. ‘‘Audits of States, Local Governments,
(j) When a Federal awarding agency and Non-Profit Organizations.’’
makes an award that provides support (c) For-profit hospitals not covered
for both construction and nonconstruc- by the audit provisions of revised OMB
tion work, the Federal awarding agen- Circular A–133 shall be subject to the
cy may require the recipient to request audit requirements of the Federal
prior approval from the Federal award- awarding agencies.
ing agency before making any fund or (d) Commercial organizations shall
budget transfers between the two types be subject to the audit requirements of
of work supported. the Federal awarding agency or the
162
prime recipient as incorporated into Federal awarding agencies shall re-

the award document. quire recipients to observe these stand-
[59 FR 15639, Apr. 4, 1994, as amended at 62
ards under awards and shall not impose
FR 45939, 45947, Aug. 29, 1997] additional requirements, unless specifi-
cally required by Federal statute. The
§ 19.27 Allowable costs. recipient may use its own property
For each kind of recipient, there is a management standards and procedures
set of Federal principles for deter- provided it observes the provisions of
mining allowable costs. Allowability of §§ 19.31 through 19.37.
costs shall be determined in accord- (b) Transfer of capital assets. Section
ance with the cost principles applicable 12(k) of the Federal Transit Act, as
to the entity incurring the costs. Thus, amended, (49 U.S.C. app. 1608(k)) allows
allowability of costs incurred by State, the transfer without compensation of
local or federally-recognized Indian real property (including land) and
tribal governments is determined in equipment acquired under the Act for
accordance with the provisions of OMB another public purpose under certain
Circular A–87, ‘‘Cost Principles for conditions. Procedures to allow these
State and Local Governments.’’ The al- transfers have not been issued.
lowability of costs incurred by non-
§ 19.31 Insurance coverage.
profit organizations is determined in
accordance with the provisions of OMB Recipients shall, at a minimum, pro-
Circular A–122, ‘‘Cost Principles for vide the equivalent insurance coverage
Non-Profit Organizations.’’ The allow- for real property and equipment ac-
ability of costs incurred by institutions quired with Federal funds as provided
of higher education is determined in to property owned by the recipient.
accordance with the provisions of OMB Federally-owned property need not be
Circular A–21, ‘‘Cost Principles for insured unless required by the terms
Educational Institutions.’’ The allow- and conditions of the award.
ability of costs incurred by hospitals is
determined in accordance with the pro- § 19.32 Real property.
visions of Appendix E of 45 CFR part 74, Each Federal awarding agency shall
‘‘Principles for Determining Costs Ap- prescribe requirements for recipients
plicable to Research and Development concerning the use and disposition of
Under Grants and Contracts with Hos- real property acquired in whole or in
pitals.’’ The allowability of costs in- part under awards. Unless otherwise
curred by commercial organizations provided by statute, such require-
and those non-profit organizations list- ments, at a minimum, shall contain
ed in Attachment C to Circular A–122 is the following.
determined in accordance with the pro- (a) Title to real property shall vest in
visions of the Federal Acquisition Reg- the recipient subject to the condition
ulation (FAR) at 48 CFR part 31. that the recipient shall use the real
property for the authorized purpose of
§ 19.28 Period of availability of funds. the project as long as it is needed and
Where a funding period is specified, a shall not encumber the property with-
recipient may charge to the grant only out approval of the Federal awarding
allowable costs resulting from obliga- agency.
tions incurred during the funding pe- (b) The recipient shall obtain written
riod and any pre-award costs author- approval by the Federal awarding agen-
ized by the Federal awarding agency. cy for the use of real property in other
federally-sponsored projects when the
PROPERTY STANDARDS recipient determines that the property
is no longer needed for the purpose of
§ 19.30 Purpose of property standards. the original project. Use in other
(a) Sections 19.31 through 19.37 set projects shall be limited to those under
forth uniform standards governing federally-sponsored projects (i.e.,
management and disposition of prop- awards) or programs that have pur-
erty furnished by the Federal Govern- poses consistent with those authorized
ment whose cost was charged to a for support by the Department of
project supported by a Federal award. Transportation.
163
(c) When the real property is no the General Services Administration,

longer needed as provided in para- unless the Federal awarding agency
graphs (a) and (b) of this section, the has statutory authority to dispose of
recipient shall request disposition in- the property by alternative methods
structions from the Federal awarding (e.g., the authority provided by the
agency or its successor Federal award- Federal Technology Transfer Act (15
ing agency. The Federal awarding U.S.C. 3710(I)) to donate research equip-
agency shall observe one or more of the ment to educational and non-profit or-
following disposition instructions. ganizations in accordance with E.O.
(1) The recipient may be permitted to 12821, ‘‘Improving Mathematics and
retain title without further obligation Science Education in Support of the
to the Federal Government after it National Education Goals.’’) Appro-
compensates the Federal Government priate instructions shall be issued to
for that percentage of the current fair the recipient by the Federal awarding
market value of the property attrib-
agency.
utable to the Federal participation in
the project. (b) Exempt property. When statutory
(2) The recipient may be directed to authority exists, the Federal awarding
sell the property under guidelines pro- agency has the option to vest title to
vided by the Federal awarding agency property acquired with Federal funds
and pay the Federal Government for in the recipient without further obliga-
that percentage of the current fair tion to the Federal Government and
market value of the property attrib- under conditions the Federal awarding
utable to the Federal participation in agency considers appropriate. Such
the project (after deducting actual and property is ‘‘exempt property.’’ Should
reasonable selling and fix-up expenses, a Federal awarding agency not estab-
if any, from the sales proceeds). When lish conditions, title to exempt prop-
the recipient is authorized or required erty upon acquisition shall vest in the
to sell the property, proper sales proce- recipient without further obligation to
dures shall be established that provide the Federal Government.
for competition to the extent prac-
ticable and result in the highest pos- § 19.34 Equipment.
sible return. (a) Title to equipment acquired by a
(3) The recipient may be directed to recipient with Federal funds shall vest
transfer title to the property to the in the recipient, subject to conditions
Federal Government or to an eligible of this section.
third party provided that, in such
(b) The recipient shall not use equip-
cases, the recipient shall be entitled to
ment acquired with Federal funds to
compensation for its attributable per-
provide services to non-Federal outside
centage of the current fair market
organizations for a fee that is less than
value of the property.
private companies charge for equiva-
§ 19.33 Federally-owned and exempt lent services, unless specifically au-
property. thorized by Federal statute, for as long
(a) Federally-owned property. (1) Title as the Federal Government retains an
to federally-owned property remains interest in the equipment.
vested in the Federal Government. Re- (c) The recipient shall use the equip-
cipients shall submit annually an in- ment in the project or program for
ventory listing of federally-owned which it was acquired as long as need-
property in their custody to the Fed- ed, whether or not the project or pro-
eral awarding agency. Upon completion gram continues to be supported by Fed-
of the award or when the property is no eral funds and shall not encumber the
longer needed, the recipient shall re- property without approval of the Fed-
port the property to the Federal award- eral awarding agency. When no longer
ing agency for further Federal agency needed for the original project or pro-
utilization. gram, the recipient shall use the equip-
(2) If the Federal awarding agency ment in connection with its other fed-
has no further need for the property, it erally-sponsored activities, in the fol-
shall be declared excess and reported to lowing order of priority:
164
(1) Activities sponsored by the Fed- (vii) Location and condition of the
eral awarding agency which funded the equipment and the date the informa-
original project, then tion was reported.
(2) Activities sponsored by other Fed- (viii) Unit acquisition cost.
eral awarding agencies. (ix) Ultimate disposition data, in-
(d) During the time that equipment cluding date of disposal and sales price
is used on the project or program for or the method used to determine cur-
which it was acquired, the recipient rent fair market value where a recipi-
shall make it available for use on other ent compensates the Federal awarding
projects or programs if such other use agency for its share.
will not interfere with the work on the
(2) Equipment owned by the Federal
project or program for which the equip-
Government shall be identified to indi-
ment was originally acquired. First
preference for such other use shall be cate Federal ownership.
given to other projects or programs (3) A physical inventory of equipment
sponsored by the Federal awarding shall be taken and the results rec-
agency that financed the equipment; onciled with the equipment records at
second preference shall be given to least once every two years. Any dif-
projects or programs sponsored by ferences between quantities deter-
other Federal awarding agencies. If the mined by the physical inspection and
equipment is owned by the Federal those shown in the accounting records
Government, use on other activities shall be investigated to determine the
not sponsored by the Federal Govern- causes of the difference. The recipient
ment shall be permissible if authorized shall, in connection with the inven-
by the Federal awarding agency. User tory, verify the existence, current uti-
charges shall be treated as program in- lization, and continued need for the
come. equipment.
(e) When acquiring replacement (4) A control system shall be in effect
equipment, the recipient may use the to insure adequate safeguards to pre-
equipment to be replaced as trade-in or vent loss, damage, or theft of the
sell the equipment and use the pro- equipment. Any loss, damage, or theft
ceeds to offset the costs of the replace- of equipment shall be investigated and
ment equipment subject to the ap- fully documented; if the equipment was
proval of the Federal awarding agency. owned by the Federal Government, the
(f) The recipient’s property manage- recipient shall promptly notify the
ment standards for equipment acquired Federal awarding agency.
with Federal funds and federally-owned (5) Adequate maintenance procedures
equipment shall include all of the fol- shall be implemented to keep the
lowing.
equipment in good condition.
(1) Equipment records shall be main-
(6) Where the recipient is authorized
tained accurately and shall include the
following information. or required to sell the equipment, prop-
(i) A description of the equipment. er sales procedures shall be established
(ii) Manufacturer’s serial number, which provide for competition to the
model number, Federal stock number, extent practicable and result in the
national stock number, or other identi- highest possible return.
fication number. (g) When the recipient no longer
(iii) Source of the equipment, includ- needs the equipment, the equipment
ing the award number. may be used for other activities in ac-
(iv) Whether title vests in the recipi- cordance with the following standards.
ent or the Federal Government. For equipment with a current per unit
(v) Acquisition date (or date re- fair market value of $5,000 or more, the
ceived, if the equipment was furnished recipient may retain the equipment for
by the Federal Government) and cost. other uses provided that compensation
(vi) Information from which one can is made to the original Federal award-
calculate the percentage of Federal ing agency or its successor. The
participation in the cost of the equip- amount of compensation shall be com-
ment (not applicable to equipment fur- puted by applying the percentage of
nished by the Federal Government). Federal participation in the cost of the
165
original project or program to the cur- (i) The equipment shall be appro-
rent fair market value of the equip- priately identified in the award or oth-
ment. If the recipient has no need for erwise made known to the recipient in
the equipment, the recipient shall re- writing.
quest disposition instructions from the (ii) The Federal awarding agency
Federal awarding agency. The Federal shall issue disposition instructions
awarding agency shall determine within 120 calendar days after receipt
whether the equipment can be used to of a final inventory. The final inven-
meet the agency’s requirements. If no tory shall list all equipment acquired
requirement exists within that agency, with grant funds and federally-owned
the availability of the equipment shall equipment. If the Federal awarding
be reported to the General Services Ad- agency fails to issue disposition in-
ministration by the Federal awarding structions within the 120 calendar day
agency to determine whether a require- period, the recipient shall apply the
ment for the equipment exists in other standards of this section, as appro-
Federal agencies. The Federal award- priate.
ing agency shall issue instructions to (iii) When the Federal awarding
the recipient no later than 120 calendar agency exercises its right to take title,
days after the recipient’s request and the equipment shall be subject to the
the following procedures shall govern. provisions for federally-owned equip-
(1) If so instructed or if disposition ment.
instructions are not issued within 120
calendar days after the recipient’s re- § 19.35 Supplies and other expendable
quest, the recipient shall sell the property.
equipment and reimburse the Federal
awarding agency an amount computed (a) Title to supplies and other ex-
by applying to the sales proceeds the pendable property shall vest in the re-
percentage of Federal participation in cipient upon acquisition. If there is a
the cost of the original project or pro- residual inventory of unused supplies
gram. However, the recipient shall be exceeding $5000 in total aggregate
permitted to deduct and retain from value upon termination or completion
the Federal share $500 or ten percent of of the project or program and the sup-
the proceeds, whichever is less, for the plies are not needed for any other fed-
recipient’s selling and handling ex- erally-sponsored project or program,
penses. the recipient shall retain the supplies
(2) If the recipient is instructed to for use on non-Federal sponsored ac-
ship the equipment elsewhere, the re- tivities or sell them, but shall, in ei-
cipient shall be reimbursed by the Fed- ther case, compensate the Federal Gov-
eral Government by an amount which ernment for its share. The amount of
is computed by applying the percent- compensation shall be computed in the
age of the recipient’s participation in same manner as for equipment.
the cost of the original project or pro- (b) The recipient shall not use sup-
gram to the current fair market value plies acquired with Federal funds to
of the equipment, plus any reasonable provide services to non-Federal outside
shipping or interim storage costs in- organizations for a fee that is less than
curred. private companies charge for equiva-
(3) If the recipient is instructed to lent services, unless specifically au-
otherwise dispose of the equipment, the thorized by Federal statute as long as
recipient shall be reimbursed by the the Federal Government retains an in-
Federal awarding agency for such costs terest in the supplies.
incurred in its disposition.
(4) The Federal awarding agency may § 19.36 Intangible property.
reserve the right to transfer the title (a) The recipient may copyright any
to the Federal Government or to a work that is subject to copyright and
third party named by the Federal Gov- was developed, or for which ownership
ernment when such third party is oth- was purchased, under an award. The
erwise eligible under existing statutes. Federal awarding agency(ies) reserve a
Such transfer shall be subject to the royalty-free, nonexclusive and irrev-
following standards. ocable right to reproduce, publish, or
166
otherwise use the work for Federal pur- (A) Trade secrets, commercial infor-
poses, and to authorize others to do so. mation, materials necessary to be held
(b) Recipients are subject to applica- confidential by a researcher until they
ble regulations governing patents and are published, or similar information
inventions, including government-wide which is protected under law; and
regulations issued by the Department (B) Personnel and medical informa-
of Commerce at 37 CFR part 401, tion and similar information the dis-
‘‘Rights to Inventions Made by Non- closure of which would constitute a
profit Organizations and Small Busi- clearly unwarranted invasion of per-
ness Firms Under Government Grants, sonal privacy, such as information that
Contracts and Cooperative Agree- could be used to identify a particular
ments.’’ person in a research study.
(ii) Published is defined as either
(c) The Federal Government has the
when:
right to:
(A) Research findings are published
(1) Obtain, reproduce, publish or oth- in a peer-reviewed scientific or tech-
erwise use the data first produced nical journal; or
under an award; and (B) A Federal agency publicly and of-
(2) Authorize others to receive, repro- ficially cites the research findings in
duce, publish, or otherwise use such support of an agency action that has
data for Federal purposes. the force and effect of law.
(d)(1) In addition, in response to a (iii) Used by the Federal Government in
Freedom of Information Act (FOIA) re- developing an agency action that has the
quest for research data relating to pub- force and effect of law is defined as when
lished research findings produced under an agency publicly and officially cites
an award that were used by the Federal the research findings in support of an
Government in developing an agency agency action that has the force and
action that has the force and effect of effect of law.
law, the Federal awarding agency shall (e) Title to intangible property and
request, and the recipient shall pro- debt instruments acquired under an
vide, within a reasonable time, the re- award or subaward vests upon acquisi-
search data so that they can be made tion in the recipient. The recipient
available to the public through the pro- shall use that property for the origi-
cedures established under the FOIA. If nally-authorized purpose, and the re-
the Federal awarding agency obtains cipient shall not encumber the prop-
the research data solely in response to erty without approval of the Federal
a FOIA request, the agency may charge awarding agency. When no longer need-
the requester a reasonable fee equaling ed for the originally authorized pur-
the full incremental cost of obtaining pose, disposition of the intangible prop-
the research data. This fee should re- erty shall occur in accordance with the
flect costs incurred by the agency, the provisions of paragraph § 19.34(g).
recipient, and applicable subrecipients. [59 FR 15639, Apr. 4, 1994, as amended at 65
This fee is in addition to any fees the FR 14407, 14419, Mar. 16, 2000]
agency may assess under the FOIA (5
U.S.C. 552(a)(4)(A)). § 19.37 Property trust relationship.
(2) The following definitions apply Real property, equipment, intangible
for purposes of this paragraph (d): property and debt instruments that are
(i) Research data is defined as the re- acquired or improved with Federal
corded factual material commonly ac- funds shall be held in trust by the re-
cepted in the scientific community as cipient as trustee for the beneficiaries
necessary to validate research findings, of the project or program under which
but not any of the following: prelimi- the property was acquired or improved.
nary analyses, drafts of scientific pa- Agencies may require recipients to
pers, plans for future research, peer re- record liens or other appropriate no-
views, or communications with col- tices of record to indicate that per-
leagues. This ‘‘recorded’’ material ex- sonal or real property has been ac-
cludes physical objects (e.g., laboratory quired or improved with Federal funds
samples). Research data also do not in- and that use and disposition conditions
clude: apply to the property.
167
PROCUREMENT STANDARDS officers, employees, and agents of the

recipient shall neither solicit nor ac-
§ 19.40 Purpose of procurement stand- cept gratuities, favors, or anything of
ards. monetary value from contractors, or
Sections 19.41 through 19.48 set forth parties to subagreements. However, re-
standards for use by recipients in es- cipients may set standards for situa-
tablishing procedures for the procure- tions in which the financial interest is
ment of supplies and other expendable not substantial or the gift is an unso-
property, equipment, real property and licited item of nominal value. The
other services with Federal funds. standards of conduct shall provide for
These standards are furnished to en- disciplinary actions to be applied for
sure that such materials and services violations of such standards by offi-
are obtained in an effective manner cers, employees, or agents of the re-
and in compliance with the provisions cipient.
of applicable Federal statutes and ex-
ecutive orders. No additional procure- § 19.43 Competition.
ment standards or requirements shall All procurement transactions shall
be imposed by the Federal awarding be conducted in a manner to provide,
agencies upon recipients, unless spe- to the maximum extent practical, open
cifically required by Federal statute or and free competition. The recipient
executive order or approved by OMB. shall be alert to organizational con-
flicts of interest as well as noncompeti-
§ 19.41 Recipient responsibilities. tive practices among contractors that
The standards contained in this sec- may restrict or eliminate competition
tion do not relieve the recipient of the or otherwise restrain trade. In order to
contractual responsibilities arising ensure objective contractor perform-
under its contract(s). The recipient is ance and eliminate unfair competitive
the responsible authority, without re- advantage, contractors that develop or
course to the Federal awarding agency, draft specifications, requirements,
regarding the settlement and satisfac- statements of work, invitations for
tion of all contractual and administra- bids and/or requests for proposals shall
tive issues arising out of procurements be excluded from competing for such
entered into in support of an award or procurements. Awards shall be made to
other agreement. This includes dis- the bidder or offeror whose bid or offer
putes, claims, protests of award, source is responsive to the solicitation and is
evaluation or other matters of a con- most advantageous to the recipient,
tractual nature. Matters concerning price, quality and other factors consid-
violation of statute are to be referred ered. Solicitations shall clearly set
to such Federal, State or local author- forth all requirements that the bidder
ity as may have proper jurisdiction. or offeror shall fulfill in order for the
bid or offer to be evaluated by the re-
§ 19.42 Codes of conduct. cipient. Any and all bids or offers may
The recipient shall maintain written be rejected when it is in the recipient’s
standards of conduct governing the interest to do so.
performance of its employees engaged
in the award and administration of § 19.44 Procurement procedures.
contracts. No employee, officer, or (a) All recipients shall establish writ-
agent shall participate in the selection, ten procurement procedures. These
award, or administration of a contract procedures shall provide for, at a min-
supported by Federal funds if a real or imum, that the conditions in para-
apparent conflict of interest would be graphs (a)(1), (2) and (3) of this section
involved. Such a conflict would arise apply.
when the employee, officer, or agent, (1) Recipients avoid purchasing un-
any member of his or her immediate necessary items.
family, his or her partner, or an orga- (2) Where appropriate, an analysis is
nization which employs or is about to made of lease and purchase alter-
employ any of the parties indicated natives to determine which would be
herein, has a financial or other interest the most economical and practical pro-
in the firm selected for an award. The curement for the Federal Government.
168
(3) Solicitations for goods and serv- terprises when a contract is too large
ices provide for all of the following: for one of these firms to handle individ-
(i) A clear and accurate description ually.
of the technical requirements for the (5) Use the services and assistance, as
material, product or service to be pro- appropriate, of such organizations as
cured. In competitive procurements, the Small Business Administration and
such a description shall not contain the Department of Commerce’s Minor-
features which unduly restrict com- ity Business Development Agency in
petition. the solicitation and utilization of
(ii) Requirements which the bidder/ small businesses, minority-owned
offeror must fulfill and all other fac- firms, and women’s business enter-
tors to be used in evaluating bids or prises.
proposals. (c) The type of procuring instruments
(iii) A description, whenever prac- used (e.g., fixed price contracts, cost
ticable, of technical requirements in reimbursable contracts, purchase or-
terms of functions to be performed or ders, and incentive contracts) shall be
performance required, including the determined by the recipient but shall
range of acceptable characteristics or be appropriate for the particular pro-
minimum acceptable standards. curement and for promoting the best
(iv) The specific features of ‘‘brand interest of the program or project in-
name or equal’’ descriptions that bid- volved. The ‘‘cost-plus-a-percentage-of-
ders are required to meet when such cost’’ or ‘‘percentage of construction
items are included in the solicitation. cost’’ methods of contracting shall not
(v) The acceptance, to the extent be used.
practicable and economically feasible, (d) Contracts shall be made only with
of products and services dimensioned in responsible contractors who possess
the metric system of measurement. the potential ability to perform suc-
(vi) Preference, to the extent prac- cessfully under the terms and condi-
ticable and economically feasible, for tions of the proposed procurement.
products and services that conserve Consideration shall be given to such
natural resources and protect the envi- matters as contractor integrity, record
ronment and are energy efficient. of past performance, financial and
(b) Positive efforts shall be made by technical resources or accessibility to
recipients to utilize small businesses, other necessary resources. In certain
minority-owned firms, and women’s circumstances, contracts with certain
business enterprises, whenever pos- parties are restricted by 49 CFR part
sible. Recipients of Federal awards 29, the implementation of E.O.’s 12549
shall take all of the following steps to and 12689, ‘‘Debarment and Suspen-
further this goal. sion.’’
(1) Ensure that small businesses, mi- (e) Recipients shall, on request, make
nority-owned firms, and women’s busi- available for the Federal awarding
ness enterprises are used to the fullest agency, pre-award review and procure-
extent practicable. ment documents, such as request for
(2) Make information on forthcoming proposals or invitations for bids, inde-
opportunities available and arrange pendent cost estimates, etc., when any
timeframes for purchases and contracts of the following conditions apply.
to encourage and facilitate participa- (1) A recipient’s procurement proce-
tion by small businesses, minority- dures or operation fails to comply with
owned firms, and women’s business en- the procurement standards in this part.
terprises. (2) The procurement is expected to
(3) Consider in the contract process exceed the small purchase threshold
whether firms competing for larger fixed at 41 U.S.C. 403 (11) (currently
contracts intend to subcontract with $25,000) and is to be awarded without
small businesses, minority-owned competition or only one bid or offer is
firms, and women’s business enter- received in response to a solicitation.
prises. (3) The procurement, which is ex-
(4) Encourage contracting with con- pected to exceed the small purchase
sortiums of small businesses, minority- threshold, specifies a ‘‘brand name’’
owned firms and women’s business en- product.
169
(4) The proposed award over the ments utilizing exclusionary or dis-
small purchase threshold is to be criminatory specifications. Nonregula-
awarded to other than the apparent tory guidance is contained in FTA Cir-
low bidder under a sealed bid procure- cular 4220.1B, Third Party Contracting
ment. Guidelines, Chapter I, section 15 and
(5) A proposed contract modification Attachment A.
changes the scope of a contract or in- (4) Section 1241(b)(1) of 46 U.S.C. and
creases the contract amount by more 46 CFR part 381, Cargo Preference—
than the amount of the small purchase U.S. Flag Vessels impose cargo pref-
threshold. erence requirements on the shipment
(f) Additional procurement proce- of foreign made goods for FTA recipi-
dures. ents. Nonregulatory guidance is con-
(1) Section 165 of the STAA of 1982, as tained in FTA Circular 4220.1B, Third
amended; section 337 of the Surface Party Contracting Guidelines, Chapter
Transportation and Uniform Reloca- I, section 10.
tion Assistance Act (STURAA) of 1987,
49 U.S.C. 1601, section 1048 of the Inter- § 19.45 Cost and price analysis.
modal Surface Transportation Effi- Some form of cost or price analysis
ciency Act of 1991, and section 9129 of shall be made and documented in the
the Aviation Safety and Capacity Ex- procurement files in connection with
pansion Act of 1990, 49 U.S.C. app. 2226, every procurement action. Price anal-
impose Buy America requirements on ysis may be accomplished in various
the procurement of foreign products ways, including the comparison of
and materials by all recipients of price quotations submitted, market
FHWA, FTA, and Federal Aviation Ad- prices and similar indicia, together
ministration (FAA) funds. Procedures with discounts. Cost analysis is the re-
are contained in 49 CFR part 660, Buy view and evaluation of each element of
America Requirements and part 661, cost to determine reasonableness,
Buy America Requirements—STAA of allocability and allowability.
1982. In addition, for FTA recipients,
nonregulatory guidance is contained in § 19.46 Procurement records.
FTA Circular 4220.1B, Third Party Con- Procurement records and files for
tracting Guidelines, Chapter I, section purchases in excess of the small pur-
11. Non-regulatory guidance for FAA chase threshold shall include the fol-
programs is contained in FAA Order lowing at a minimum:
5100.38A and special conditions in grant (a) Basis for contractor selection,
awards. (b) Justification for lack of competi-
(2) Section 511(a)(16) of the Airport tion when competitive bids or offers
and Airway Improvement Act of 1982, are not obtained, and
49 U.S.C. app. 2210, requires FAA recipi- (c) Basis for award cost or price.
ents and subrecipients to extend the
use of qualifications-based (e.g., archi- § 19.47 Contract administration.
tectural and engineering services) con- A system for contract administration
tract selection procedures to certain shall be maintained to ensure con-
other related areas and to award such tractor conformance with the terms,
contracts in the same manner as Fed- conditions and specifications of the
eral contracts for architectural and en- contract and to ensure adequate and
gineering services are negotiated under timely follow up of all purchases. Re-
Title IX of the 1949 Federal Property cipients shall evaluate contractor per-
and Administrative Services Act, or formance and document, as appro-
equivalent airport sponsor qualifica- priate, whether contractors have met
tions based requirements. Non-regu- the terms, conditions, and specifica-
latory guidance for FAA programs is tions of the contract.
contained in FAA Order 5100.38A and
special conditions in grant awards. § 19.48 Contract provisions.
(3) Section 3(a)(2)(C) of the Federal The recipient shall include, in addi-
Transit Act, as amended, (49 U.S.C. tion to provisions to define a sound and
app. 1602(a)(2)(C)) prohibits the use of complete agreement, the following pro-
grant or loan funds to support procure- visions in all contracts. The following
170
provisions shall also be applied to subcontractor’s obligations under such

contracts. contract.
(a) Contracts in excess of the small (3) A payment bond on the part of the
purchase threshold shall contain con- contractor for 100 percent of the con-
tractual provisions or conditions that tract price. A ‘‘payment bond’’ is one
allow for administrative, contractual, executed in connection with a contract
or legal remedies in instances in which to assure payment as required by stat-
a contractor violates or breaches the ute of all persons supplying labor and
contract terms, and provide for such material in the execution of the work
remedial actions as may be appro- provided for in the contract.
priate. (4) Where bonds are required in the
(b) All contracts in excess of the situations described herein, the bonds
small purchase threshold shall contain shall be obtained from companies hold-
suitable provisions for termination by ing certificates of authority as accept-
the recipient, including the manner by able sureties pursuant to 31 CFR part
which termination shall be effected 223, ‘‘Surety Companies Doing Business
and the basis for settlement. In addi- with the United States.’’
tion, such contracts shall describe con- (d) All negotiated contracts (except
ditions under which the contract may those for less than the small purchase
be terminated for default as well as threshold) awarded by recipients shall
conditions where the contract may be include a provision to the effect that
terminated because of circumstances the recipient, the Federal awarding
beyond the control of the contractor. agency, the Comptroller General of the
United States, or any of their duly au-
(c) Except as otherwise required by
thorized representatives, shall have ac-
statute, an award that requires the
cess to any books, documents, papers
contracting (or subcontracting) for
and records of the contractor which are
construction or facility improvements
directly pertinent to a specific pro-
shall provide for the recipient to follow
gram for the purpose of making audits,
its own requirements relating to bid
examinations, excerpts and tran-
guarantees, performance bonds, and
scriptions.
payment bonds unless the construction
(e) All contracts, including small
contract or subcontract exceeds
purchases, awarded by recipients and
$100,000. For those contracts or sub-
their contractors shall contain the pro-
contracts exceeding $100,000, the Fed- curement provisions of appendix A to
eral awarding agency may accept the this part, as applicable.
bonding policy and requirements of the
recipient, provided the Federal award- REPORTS AND RECORDS
ing agency has made a determination
that the Federal Government’s interest § 19.50 Purpose of reports and records.
is adequately protected. If such a de- Sections 19.51 through 19.53 set forth
termination has not been made, the the procedures for monitoring and re-
minimum requirements shall be as fol- porting on the recipient’s financial and
lows: program performance and the nec-
(1) A bid guarantee from each bidder essary standard reporting forms. They
equivalent to five percent of the bid also set forth record retention require-
price. The ‘‘bid guarantee’’ shall con- ments.
sist of a firm commitment such as a
bid bond, certified check, or other ne- § 19.51 Monitoring and reporting pro-
gotiable instrument accompanying a gram performance.
bid as assurance that the bidder shall, (a) Recipients are responsible for
upon acceptance of his bid, execute managing and monitoring each project,
such contractual documents as may be program, subaward, function or activ-
required within the time specified. ity supported by the award. Recipients
(2) A performance bond on the part of shall monitor subawards to ensure sub-
the contractor for 100 percent of the recipients have met the audit require-
contract price. A ‘‘performance bond’’ ments as delineated in § 19.26.
is one executed in connection with a (b) The Federal awarding agency
contract to secure fulfillment of all the shall prescribe the frequency with
171
which the performance reports shall be § 19.52 Financial reporting.

submitted. Except as provided in
(a) The following forms or such other
§ 19.51(f), performance reports shall not
forms as may be approved by OMB are
be required more frequently than quar-
authorized for obtaining financial in-
terly or, less frequently than annually.
formation from recipients.
Annual reports shall be due 90 calendar
days after the grant year; quarterly or (1) SF–269 or SF–269A, Financial Sta-
semi-annual reports shall be due 30 tus Report.
days after the reporting period. The (i) Each Federal awarding agency
Federal awarding agency may require shall require recipients to use the SF–
annual reports before the anniversary 269 or SF–269A to report the status of
dates of multiple year awards in lieu of funds for all nonconstruction projects
these requirements. The final perform- or programs. A Federal awarding agen-
ance reports are due 90 calendar days cy may, however, have the option of
after the expiration or termination of not requiring the SF–269 or SF–269A
the award. when the SF–270, Request for Advance
(c) If inappropriate, a final technical or Reimbursement, or SF–272, Report
or performance report shall not be re- of Federal Cash Transactions, is deter-
quired after completion of the project. mined to provide adequate information
(d) When required, performance re- to meet its needs, except that a final
ports shall generally contain, for each SF–269 or SF–269A shall be required at
award, brief information on each of the the completion of the project when the
following: SF–270 is used only for advances.
(1) A comparison of actual accom- (ii) The Federal awarding agency
plishments with the goals and objec- shall prescribe whether the report shall
tives established for the period, the be on a cash or accrual basis. If the
findings of the investigator, or both. Federal awarding agency requires ac-
Whenever appropriate and the output crual information and the recipient’s
of programs or projects can be readily accounting records are not normally
quantified, such quantitative data kept on the accrual basis, the recipient
should be related to cost data for com- shall not be required to convert its ac-
putation of unit costs. counting system, but shall develop
(2) Reasons why established goals such accrual information through best
were not met, if appropriate. estimates based on an analysis of the
(3) Other pertinent information in- documentation on hand.
cluding, when appropriate, analysis (iii) The Federal awarding agency
and explanation of cost overruns or shall determine the frequency of the
high unit costs. Financial Status Report for each
(e) Recipients shall not be required to project or program, considering the
submit more than the original and two size and complexity of the particular
copies of performance reports. project or program. However, the re-
(f) Recipients shall immediately no- port shall not be required more fre-
tify the Federal awarding agency of de- quently than quarterly or less fre-
velopments that have a significant im- quently than annually. A final report
pact on the award-supported activities. shall be required at the completion of
Also, notification shall be given in the the agreement.
case of problems, delays, or adverse (iv) The Federal awarding agency
conditions which materially impair the shall require recipients to submit the
ability to meet the objectives of the SF–269 or SF–269A (an original and no
award. This notification shall include a more than two copies) no later than 30
statement of the action taken or con- days after the end of each specified re-
templated, and any assistance needed porting period for quarterly and semi-
to resolve the situation. annual reports, and 90 calendar days
(g) Federal awarding agencies may for annual and final reports. Exten-
make site visits, as needed. sions of reporting due dates may be ap-
(h) Federal awarding agencies shall proved by the Federal awarding agency
comply with clearance requirements of upon request of the recipient.
5 CFR part 1320 when requesting per- (2) SF–272, Report of Federal Cash
formance data from recipients. Transactions.
172
(i) When funds are advanced to re- in § 19.21, additional pertinent informa-
cipients the Federal awarding agency tion to further monitor awards may be
shall require each recipient to submit obtained upon written notice to the re-
the SF–272 and, when necessary, its cipient until such time as the system is
continuation sheet, SF–272a. The Fed- brought up to standard. The Federal
eral awarding agency shall use this re- awarding agency, in obtaining this in-
port to monitor cash advanced to re- formation, shall comply with report
cipients and to obtain disbursement in- clearance requirements of 5 CFR part
formation for each agreement with the 1320.
recipients. (3) Federal awarding agencies are en-
(ii) Federal awarding agencies may couraged to shade out any line item on
require forecasts of Federal cash re- any report if not necessary.
quirements in the ‘‘Remarks’’ section (4) Federal awarding agencies may
of the report. accept the identical information from
(iii) When practical and deemed nec- the recipients in machine readable for-
essary, Federal awarding agencies may mat or computer printouts or elec-
require recipients to report in the tronic outputs in lieu of prescribed for-
‘‘Remarks’’ section the amount of cash mats.
advances received in excess of three (5) Federal awarding agencies may
days. Recipients shall provide short provide computer or electronic outputs
narrative explanations of actions taken to recipients when such expedites or
to reduce the excess balances. contributes to the accuracy of report-
(iv) Recipients shall be required to ing.
submit not more than the original and
two copies of the SF–272 15 calendar § 19.53 Retention and access require-
days following the end of each quarter. ments for records.
The Federal awarding agencies may re- (a) This section sets forth require-
quire a monthly report from those re- ments for record retention and access
cipients receiving advances totaling $1 to records for awards to recipients.
million or more per year. Federal awarding agencies shall not
(v) Federal awarding agencies may impose any other record retention or
waive the requirement for submission access requirements upon recipients.
of the SF–272 for any one of the fol- (b) Financial records, supporting doc-
lowing reasons: uments, statistical records, and all
(A) When monthly advances do not other records pertinent to an award
exceed $25,000 per recipient, provided shall be retained for a period of three
that such advances are monitored years from the date of submission of
through other forms contained in this the final expenditure report or, for
section; awards that are renewed quarterly or
(B) If, in the Federal awarding agen- annually, from the date of the submis-
cy’s opinion, the recipient’s accounting sion of the quarterly or annual finan-
controls are adequate to minimize ex- cial report, as authorized by the Fed-
cessive Federal advances; or, eral awarding agency. The only excep-
(C) When the electronic payment tions are the following.
mechanisms provide adequate data. (1) If any litigation, claim, or audit is
(b) When the Federal awarding agen- started before the expiration of the 3-
cy needs additional information or year period, the records shall be re-
more frequent reports, the following tained until all litigation, claims or
shall be observed. audit findings involving the records
(1) When additional information is have been resolved and final action
needed to comply with legislative re- taken.
quirements, Federal awarding agencies (2) Records for real property and
shall issue instructions to require re- equipment acquired with Federal funds
cipients to submit such information shall be retained for 3 years after final
under the ‘‘Remarks’’ section of the re- disposition.
ports. (3) When records are transferred to or
(2) When a Federal awarding agency maintained by the Federal awarding
determines that a recipient’s account- agency, the 3-year retention require-
ing system does not meet the standards ment is not applicable to the recipient.
173
(4) Indirect cost rate proposals, cost rates or composite fringe benefit
allocations plans, etc. as specified in rates).
paragraph § 19.53(g). (1) If submitted for negotiation. If the
(c) Copies of original records may be recipient submits to the Federal
substituted for the original records if awarding agency or the subrecipient
authorized by the Federal awarding submits to the recipient the proposal,
agency. plan, or other computation to form the
(d) The Federal awarding agency basis for negotiation of the rate, then
shall request transfer of certain the 3-year retention period for its sup-
records to its custody from recipients porting records starts on the date of
when it determines that the records such submission.
possess long term retention value.
(2) If not submitted for negotiation. If
However, in order to avoid duplicate
the recipient is not required to submit
recordkeeping, a Federal awarding
to the Federal awarding agency or the
agency may make arrangements for re-
cipients to retain any records that are subrecipient is not required to submit
continuously needed for joint use. to the recipient the proposal, plan, or
(e) The Federal awarding agency, the other computation for negotiation pur-
Inspector General, Comptroller Gen- poses, then the 3-year retention period
eral of the United States, or any of for the proposal, plan, or other com-
their duly authorized representatives, putation and its supporting records
have the right of timely and unre- starts at the end of the fiscal year (or
stricted access to any books, docu- other accounting period) covered by
ments, papers, or other records of re- the proposal, plan, or other computa-
cipients that are pertinent to the tion.
awards, in order to make audits, ex-
aminations, excerpts, transcripts and TERMINATION AND ENFORCEMENT
copies of such documents. This right
also includes timely and reasonable ac- § 19.60 Purpose of termination and en-
forcement.
cess to a recipient’s personnel for the
purpose of interview and discussion re- Sections 19.61 and 19.62 set forth uni-
lated to such documents. The rights of form suspension, termination and en-
access in this paragraph are not lim- forcement procedures.
ited to the required retention period,
but shall last as long as records are re- § 19.61 Termination.
tained. (a) Awards may be terminated in
(f) Unless required by statute, no whole or in part only if the conditions
Federal awarding agency shall place in paragraph (a) (1), (2) or (3) of this
restrictions on recipients that limit section apply.
public access to the records of recipi-
(1) By the Federal awarding agency,
ents that are pertinent to an award, ex-
if a recipient materially fails to com-
cept when the Federal awarding agency
ply with the terms and conditions of an
can demonstrate that such records
award.
shall be kept confidential and would
have been exempted from disclosure (2) By the Federal awarding agency
pursuant to the Freedom of Informa- with the consent of the recipient, in
tion Act (5 U.S.C. 552) if the records which case the two parties shall agree
had belonged to the Federal awarding upon the termination conditions, in-
agency. cluding the effective date and, in the
(g) Indirect cost rate proposals, cost case of partial termination, the portion
allocations plans, etc. Paragraphs (g)(1) to be terminated.
and (g)(2) of this section apply to the (3) By the recipient upon sending to
following types of documents, and their the Federal awarding agency written
supporting records: Indirect cost rate notification setting forth the reasons
computations or proposals, cost alloca- for such termination, the effective
tion plans, and any similar accounting date, and, in the case of partial termi-
computations of the rate at which a nation, the portion to be terminated.
particular group of costs is chargeable However, if the Federal awarding agen-
(such as computer usage chargeback cy determines in the case of partial
174
termination that the reduced or modi- quently. Other recipient costs during
fied portion of the grant will not ac- suspension or after termination which
complish the purposes for which the are necessary and not reasonably
grant was made, it may terminate the avoidable are allowable if the condi-
grant in its entirety under either para- tions in paragraph (c) (1) or (2) of this
graph (a) (1) or (2) of this section. section apply.
(b) If costs are allowed under an (1) The costs result from obligations
award, the responsibilities of the re- which were properly incurred by the re-
cipient referred to in § 19.71(a), includ- cipient before the effective date of sus-
ing those for property management as pension or termination, are not in an-
applicable, shall be considered in the ticipation of it, and in the case of a ter-
termination of the award, and provi- mination, are noncancellable.
sion shall be made for continuing re- (2) The costs would be allowable if
sponsibilities of the recipient after ter- the award were not suspended or ex-
mination, as appropriate. pired normally at the end of the fund-
ing period in which the termination
§ 19.62 Enforcement. takes effect.
(a) Remedies for noncompliance. If a (d) Relationship to debarment and
recipient materially fails to comply suspension. The enforcement remedies
with the terms and conditions of an identified in this section, including
award, whether stated in a Federal suspension and termination, do not
statute, regulation, assurance, applica- preclude a recipient from being subject
tion, or notice of award, the Federal to debarment and suspension under
awarding agency may, in addition to E.O.s 12549 and 12689 and 49 CFR part 29
imposing any of the special conditions (see § 19.13).
outlined in § 19.14, take one or more of
the following actions, as appropriate in Subpart D—After-the-Award
the circumstances. Requirements
(1) Temporarily withhold cash pay-
ments pending correction of the defi- § 19.70 Purpose.
ciency by the recipient or more severe Sections 19.71 through 19.73 contain
enforcement action by the Federal closeout procedures and other proce-
awarding agency. dures for subsequent disallowances and
(2) Disallow (that is, deny both use of adjustments.
funds and any applicable matching
credit for) all or part of the cost of the § 19.71 Closeout procedures.
activity or action not in compliance. (a) Recipients shall submit, within 90
(3) Wholly or partly suspend or ter- calendar days after the date of comple-
minate the current award. tion of the award, all financial, per-
(4) Withhold further awards for the formance, and other reports as required
project or program. by the terms and conditions of the
(5) Take other remedies that may be award. The Federal awarding agency
legally available. may approve extensions when re-
(b) Hearings and appeals. In taking quested by the recipient.
an enforcement action, the awarding (b) Unless the Federal awarding agen-
agency shall provide the recipient an cy authorizes an extension, a recipient
opportunity for hearing, appeal, or shall liquidate all obligations incurred
other administrative proceeding to under the award not later than 90 cal-
which the recipient is entitled under endar days after the funding period or
any statute or regulation applicable to the date of completion as specified in
the action involved. the terms and conditions of the award
(c) Effects of suspension and termi- or in agency implementing instruc-
nation. Costs of a recipient resulting tions.
from obligations incurred by the re- (c) The Federal awarding agency
cipient during a suspension or after shall make prompt payments to a re-
termination of an award are not allow- cipient for allowable reimbursable
able unless the awarding agency ex- costs under the award being closed out.
pressly authorizes them in the notice (d) The recipient shall promptly re-
of suspension or termination or subse- fund any balances of unobligated cash
175
that the Federal awarding agency has tled under the terms and conditions of
advanced or paid and that is not au- the award constitute a debt to the Fed-
thorized to be retained by the recipient eral Government. If not paid within a
for use in other projects. OMB Circular reasonable period after the demand for
A–129 governs unreturned amounts that payment, the Federal awarding agency
become delinquent debts. may reduce the debt by the provisions
(e) When authorized by the terms and of paragraph (a) (1), (2) or (3) of this
conditions of the award, the Federal section.
awarding agency shall make a settle- (1) Making an administrative offset
ment for any upward or downward ad- against other requests for reimburse-
justments to the Federal share of costs ments.
after closeout reports are received. (2) Withholding advance payments
(f) The recipient shall account for otherwise due to the recipient.
any real and personal property ac- (3) Taking other action permitted by
quired with Federal funds or received statute.
from the Federal Government in ac- (b) Except as otherwise provided by
cordance with §§ 19.31 through 19.37. law, the Federal awarding agency shall
(g) In the event a final audit has not charge interest on an overdue debt in
been performed prior to the closeout of accordance with 4 CFR chapter II,
an award, the Federal awarding agency ‘‘Federal Claims Collection Stand-
shall retain the right to recover an ap- ards.’’
propriate amount after fully consid-
ering the recommendations on dis- APPENDIX A TO PART 19—CONTRACT
allowed costs resulting from the final PROVISIONS
audit. All contracts, awarded by a recipient in-
cluding small purchases, shall contain the
§ 19.72 Subsequent adjustments and following provisions as applicable:
continuing responsibilities. 1. Equal Employment Opportunity—All con-
(a) The closeout of an award does not tracts shall contain a provision requiring
affect any of the following. compliance with E.O. 11246, ‘‘Equal Employ-
(1) The right of the Federal awarding ment Opportunity,’’ as amended by E.O.
11375, ‘‘Amending Executive Order 11246 Re-
agency to disallow costs and recover lating to Equal Employment Opportunity,’’
funds on the basis of a later audit or and as supplemented by regulations at 41
other review. CFR part 60, ‘‘Office of Federal Contract
(2) The obligation of the recipient to Compliance Programs, Equal Employment
return any funds due as a result of Opportunity, Department of Labor.’’
later refunds, corrections, or other 2. Copeland ‘‘Anti-Kickback’’ Act (18 U.S.C.
transactions. 874 and 40 U.S.C. 276c)—All contracts and sub-
(3) Audit requirements in § 19.26. grants in excess of $2,000 for construction or
repair awarded by recipients and subrecipi-
(4) Property management require-
ents shall include a provision for compliance
ments in §§ 19.31 through 19.37. with the Copeland ‘‘Anti-Kickback’’ Act (18
(5) Records retention as required in U.S.C. 874), as supplemented by Department
§ 19.53. of Labor regulations (29 CFR part 3, ‘‘Con-
(b) After closeout of an award, a rela- tractors and Subcontractors on Public Build-
tionship created under an award may ing or Public Work Financed in Whole or in
be modified or ended in whole or in part by Loans or Grants from the United
part with the consent of the Federal States’’). The Act provides that each con-
tractor or subrecipient shall be prohibited
awarding agency and the recipient,
from inducing, by any means, any person
provided the responsibilities of the re- employed in the construction, completion, or
cipient referred to in § 19.73(a), includ- repair of public work, to give up any part of
ing those for property management as the compensation to which he is otherwise
applicable, are considered and provi- entitled. The recipient shall report all sus-
sions made for continuing responsibil- pected or reported violations to the Federal
ities of the recipient, as appropriate. awarding agency.
3. Davis-Bacon Act, as amended (40 U.S.C.
§ 19.73 Collection of amounts due. 276a to a–7)—When required by Federal pro-
gram legislation, all construction contracts
(a) Any funds paid to a recipient in awarded by the recipients and subrecipients
excess of the amount to which the re- of more than $2000 shall include a provision
cipient is finally determined to be enti- for compliance with the Davis-Bacon Act (40
176
U.S.C. 276a to a(7) and as supplemented by tions issued pursuant to the Clean Air Act
Department of Labor regulations (29 CFR (42 U.S.C. 7401 et seq.) and the Federal Water
part 5, ‘‘Labor Standards Provisions Applica- Pollution Control Act as amended (33 U.S.C.
ble to Contracts Governing Federally Fi- 1251 et seq.). Violations shall be reported to
nanced and Assisted Construction’’). Under the Federal awarding agency and the Re-
this Act, contractors shall be required to pay gional Office of the Environmental Protec-
wages to laborers and mechanics at a rate tion Agency (EPA).
not less than the minimum wages specified 7. Byrd Anti-Lobbying Amendment (31 U.S.C.
in a wage determination made by the Sec- 1352)—Contractors who apply or bid for an
retary of Labor. In addition, contractors award of $100,000 or more shall file the cer-
shall be required to pay wages not less than tification required by 49 CFR part 20, ‘‘New
once a week. The recipient shall place a copy Restrictions on Lobbying.’’ Each tier cer-
of the current prevailing wage determination tifies to the tier above that it will not and
issued by the Department of Labor in each has not used Federal appropriated funds to
solicitation and the award of a contract shall pay any person or organization for influ-
be conditioned upon the acceptance of the encing or attempting to influence an officer
wage determination. The recipient shall re- or employee of any agency, a member of
port all suspected or reported violations to Congress, officer or employee of Congress, or
the Federal awarding agency. an employee of a member of Congress in con-
4. Contract Work Hours and Safety Standards nection with obtaining any Federal contract,
Act (40 U.S.C. 327–333)—Where applicable, all grant or any other award covered by 31
contracts awarded by recipients in excess of U.S.C. 1352. Each tier shall also disclose any
$2,000 for construction contracts and in ex- lobbying with non-Federal funds that takes
cess of $2,500 for other contracts that involve place in connection with obtaining any Fed-
the employment of mechanics or laborers eral award. Such disclosures are forwarded
shall include a provision for compliance with from tier to tier up to the recipient.
sections 102 and 107 of the Contract Work 8. Debarment and Suspension (E.O.s 12549
Hours and Safety Standards Act (40 U.S.C. and 12689)—No contract shall be made to par-
327–333), as supplemented by Department of ties listed on the General Services Adminis-
Labor regulations (29 CFR part 5). Under sec- tration’s List of Parties Excluded from Fed-
tion 102 of the Act, each contractor shall be eral Procurement or Nonprocurement Pro-
required to compute the wages of every me- grams in accordance with E.O.s 12549 and
chanic and laborer on the basis of a standard 12689, ‘‘Debarment and Suspension’’ and 49
work week of 40 hours. Work in excess of the CFR part 29. This list contains the names of
standard work week is permissible provided parties debarred, suspended, or otherwise ex-
that the worker is compensated at a rate of cluded by agencies, and contractors declared
not less than 11⁄2 times the basic rate of pay ineligible under statutory or regulatory au-
for all hours worked in excess of 40 hours in thority other than E.O. 12549. Contractors
the work week. Section 107 of the Act is ap- with awards that exceed the small purchase
plicable to construction work and provides threshold shall provide the required certifi-
that no laborer or mechanic shall be required cation regarding its exclusion status and
to work in surroundings or under working that of its principal employees.
conditions which are unsanitary, hazardous
or dangerous. These requirements do not
apply to the purchases of supplies or mate- PART 20—NEW RESTRICTIONS ON
rials or articles ordinarily available on the LOBBYING
open market, or contracts for transportation
or transmission of intelligence. Subpart A—General
5. Rights to Inventions Made Under a Con-
tract or Agreement—Contracts or agreements Sec.
for the performance of experimental, devel- 20.100 Conditions on use of funds.
opmental, or research work shall provide for 20.105 Definitions.
the rights of the Federal Government and 20.110 Certification and disclosure.
the recipient in any resulting invention in
accordance with 37 CFR part 401, ‘‘Rights to Subpart B—Activities by Own Employees
Inventions Made by Nonprofit Organizations
20.200 Agency and legislative liaison.
and Small Business Firms Under Govern-
20.205 Professional and technical services.
ment Grants, Contracts and Cooperative
20.210 Reporting.
Agreements,’’ and any implementing regula-
tions issued by the awarding agency. Subpart C—Activities by Other Than Own
6. Clean Air Act (42 U.S.C. 7401 et seq.) and
the Federal Water Pollution Control Act (33 Employees
U.S.C. 1251 et seq.), as amended—Contracts 20.300 Professional and technical services.
and subgrants of amounts in excess of
$100,000 shall contain a provision that re- Subpart D—Penalties and Enforcement
quires the recipient to agree to comply with
all applicable standards, orders or regula- 20.400 Penalties.
177
20.405 Penalty procedures. its from any covered Federal action),
20.410 Enforcement. which would be prohibited under para-
graph (a) of this section if paid for with
Subpart E—Exemptions appropriated funds.
20.500 Secretary of Defense. (d) Each person who requests or re-
ceives from an agency a commitment
Subpart F—Agency Reports providing for the United States to in-
sure or guarantee a loan shall file with
20.600 Semi-annual compilation.
20.605 Inspector General report.
that agency a statement, set forth in
appendix A, whether that person has
APPENDIX A TO PART 20—CERTIFICATION RE-
GARDING LOBBYING
made or has agreed to make any pay-
APPENDIX B TO PART 20—DISCLOSURE FORM ment to influence or attempt to influ-
TO REPORT LOBBYING ence an officer or employee of any
agency, a Member of Congress, an offi-
AUTHORITY: Sec. 319, Public Law 101–121 (31
U.S.C. 1352); 49 U.S.C. 322(a).
cer or employee of Congress, or an em-
ployee of a Member of Congress in con-
CROSS REFERENCE: See also Office of Man- nection with that loan insurance or
agement and Budget notice published at 54 guarantee.
FR 52306, December 20, 1989.
(e) Each person who requests or re-
SOURCE: 55 FR 6737, 6756, Feb. 26, 1990, un- ceives from an agency a commitment
less otherwise noted. providing for the United States to in-
sure or guarantee a loan shall file with
Subpart A—General that agency a disclosure form, set forth
in appendix B, if that person has made
§ 20.100 Conditions on use of funds. or has agreed to make any payment to
(a) No appropriated funds may be ex- influence or attempt to influence an of-
pended by the recipient of a Federal ficer or employee of any agency, a
contract, grant, loan, or cooperative Member of Congress, an officer or em-
ageement to pay any person for influ- ployee of Congress, or an employee of a
encing or attempting to influence an Member of Congress in connection with
officer or employee of any agency, a that loan insurance or guarantee.
Member of Congress, an officer or em-
ployee of Congress, or an employee of a § 20.105 Definitions.
Member of Congress in connection with For purposes of this part:
any of the following covered Federal (a) Agency, as defined in 5 U.S.C.
actions: the awarding of any Federal 552(f), includes Federal executive de-
contract, the making of any Federal partments and agencies as well as inde-
grant, the making of any Federal loan, pendent regulatory commissions and
the entering into of any cooperative Government corporations, as defined in
agreement, and the extension, continu- 31 U.S.C. 9101(1).
ation, renewal, amendment, or modi- (b) Covered Federal action means any
fication of any Federal contract, grant, of the following Federal actions:
loan, or cooperative agreement. (1) The awarding of any Federal con-
(b) Each person who requests or retract;
ceives from an agency a Federal con- (2) The making of any Federal grant;
tract, grant, loan, or cooperative (3) The making of any Federal loan;
agreement shall file with that agency a (4) The entering into of any coopera-
certification, set forth in appendix A, tive agreement; and,
that the person has not made, and will (5) The extension, continuation, re-
not make, any payment prohibited by newal, amendment, or modification of
paragraph (a) of this section. any Federal contract, grant, loan, or
(c) Each person who requests or re- cooperative agreement.
ceives from an agency a Federal con- Covered Federal action does not in-
tract, grant, loan, or a cooperative clude receiving from an agency a com-
agreement shall file with that agency a mitment providing for the United
disclosure form, set forth in appendix States to insure or guarantee a loan.
B, if such person has made or has Loan guarantees and loan insurance
agreed to make any payment using are addressed independently within
nonappropriated funds (to include prof- this part.
178
(c) Federal contract means an acquisi- (1) An individual who is appointed to

tion contract awarded by an agency, a position in the Government under
including those subject to the Federal title 5, U.S. Code, including a position
Acquisition Regulation (FAR), and any under a temporary appointment;
other acquisition contract for real or (2) A member of the uniformed serv-
personal property or services not sub- ices as defined in section 101(3), title 37,
ject to the FAR. U.S. Code;
(d) Federal cooperative agreement (3) A special Government employee
means a cooperative agreement en- as defined in section 202, title 18, U.S.
tered into by an agency. Code; and,
(e) Federal grant means an award of (4) An individual who is a member of
financial assistance in the form of a Federal advisory committee, as de-
money, or property in lieu of money, fined by the Federal Advisory Com-
by the Federal Government or a direct mittee Act, title 5, U.S. Code appendix
appropriation made by law to any per- 2.
son. The term does not include tech- (l) Person means an individual, cor-
nical assistance which provides serv- poration, company, association, au-
ices instead of money, or other assist- thority, firm, partnership, society,
ance in the form of revenue sharing, State, and local government, regard-
loans, loan guarantees, loan insurance, less of whether such entity is operated
interest subsidies, insurance, or direct for profit or not for profit. This term
United States cash assistance to an in- excludes an Indian tribe, tribal organi-
dividual. zation, or any other Indian organiza-
tion with respect to expenditures spe-
(f) Federal loan means a loan made by
cifically permitted by other Federal
an agency. The term does not include
law.
loan guarantee or loan insurance.
(m) Reasonable compensation means,
(g) Indian tribe and tribal organization with respect to a regularly employed
have the meaning provided in section 4 officer or employee of any person, com-
of the Indian Self-Determination and pensation that is consistent with the
Education Assistance Act (25 U.S.C. normal compensation for such officer
450B). Alaskan Natives are included or employee for work that is not fur-
under the definitions of Indian tribes in nished to, not funded by, or not fur-
that Act. nished in cooperation with the Federal
(h) Influencing or attempting to influ- Government.
ence means making, with the intent to (n) Reasonable payment means, with
influence, any communication to or ap- respect to perfessional and other tech-
pearance before an officer or employee nical services, a payment in an amount
or any agency, a Member of Congress, that is consistent with the amount nor-
an officer or employee of Congress, or mally paid for such services in the pri-
an employee of a Member of Congress vate sector.
in connection with any covered Federal (o) Recipient includes all contractors,
action. subcontractors at any tier, and sub-
(i) Loan guarantee and loan insurance grantees at any tier of the recipient of
means an agency’s guarantee or insur- funds received in connection with a
ance of a loan made by a person. Federal contract, grant, loan, or coop-
(j) Local government means a unit of erative agreement. The term excludes
government in a State and, if char- an Indian tribe, tribal organization, or
tered, established, or otherwise recog- any other Indian organization with re-
nized by a State for the performance of spect to expenditures specifically per-
a governmental duty, including a local mitted by other Federal law.
public authority, a special district, an (p) Regularly employed means, with
intrastate district, a council of govern- respect to an officer or employee of a
ments, a sponsor group representative person requesting or receiving a Fed-
organization, and any other instrumen- eral contract, grant, loan, or coopera-
tality of a local government. tive agreement or a commitment pro-
(k) Officer or employee of an agency in- viding for the United States to insure
cludes the following individuals who or guarantee a loan, an officer or em-
are employed by an agency: ployee who is employed by such person
179
for at least 130 working days within under paragraphs (a) or (b) of this sec-
one year immediately preceding the tion. An event that materially affects
date of the submission that initiates the accuracy of the information re-
agency consideration of such person for ported includes:
receipt of such contract, grant, loan, (1) A cumulative increase of $25,000 or
cooperative agreement, loan insurance more in the amount paid or expected to
commitment, or loan guarantee com- be paid for influencing or attempting
mitment. An officer or employee who is to influence a covered Federal action;
employed by such person for less than or
130 working days within one year im- (2) A change in the person(s) or indi-
mediately preceding the date of the vidual(s) influencing or attempting to
submission that initiates agency con- influence a covered Federal action; or,
sideration of such person shall be con- (3) A change in the officer(s), em-
sidered to be regularly employed as ployee(s), or Member(s) contacted to
soon as he or she is employed by such influence or attempt to influence a
person for 130 working days. covered Federal action.
(q) State means a State of the United (d) Any person who requests or re-
States, the District of Columbia, the ceives from a person referred to in
Commonwealth of Puerto Rico, a terri- paragraphs (a) or (b) of this section:
tory or possession of the United States,
(1) A subcontract exceeding $100,000
an agency or instrumentality of a
at any tier under a Federal contract;
State, and a multi-State, regional, or
interstate entity having governmental (2) A subgrant, contract, or sub-
duties and powers. contract exceeding $100,000 at any tier
under a Federal grant;
§ 20.110 Certification and disclosure. (3) A contract or subcontract exceed-
(a) Each person shall file a certifi- ing $100,000 at any tier under a Federal
cation, and a disclosure form, if re- loan exceeding $150,000; or,
quired, with each submission that ini- (4) A contract or subcontract exceed-
tiates agency consideration of such ing $100,000 at any tier under a Federal
person for: cooperative agreement,
(1) Award of a Federal contract, Shall file a certification, and a disclo-
grant, or cooperative agreement ex- sure form, if required, to the next tier
ceeding $100,000; or above.
(2) An award of a Federal loan or a (e) All disclosure forms, but not cer-
commitment providing for the United tifications, shall be forwarded from
States to insure or guarantee a loan tier to tier until received by the person
exceeding $150,000. referred to in paragraphs (a) or (b) of
(b) Each person shall file a certifi- this section. That person shall forward
cation, and a disclosure form, if re- all disclosure forms to the agency.
quired, upon receipt by such person of: (f) Any certification or disclosure
(1) A Federal contract, grant, or co- form filed under paragraph (e) of this
operative agreement exceeding $100,000; section shall be treated as a material
or representation of fact upon which all
(2) A Federal loan or a commitment receiving tiers shall rely. All liability
providing for the United States to in- arising from an erroneous representa-
sure or guarantee a loan exceeding tion shall be borne solely by the tier
$150,000, filing that representation and shall not
Unless such person previously filed a be shared by any tier to which the er-
certification, and a disclosure form, if roneous representation is forwarded.
required, under paragraph (a) of this Submitting an erroneous certification
section. or disclosure constitutes a failure to
(c) Each person shall file a disclosure file the required certification or disclo-
form at the end of each calendar quar- sure, respectively. If a person fails to
ter in which there occurs any event file a required certification or disclo-
that requires disclosure or that materi- sure, the United States may pursue all
ally affects the accuracy of the infor- available remedies, including those au-
mation contained in any disclosure thorized by section 1352, title 31, U.S.
form previously filed by such person Code.
180
(g) For awards and commitments in (1) Providing any information not
process prior to December 23, 1989, but specifically requested but necessary for
not made before that date, certifi- an agency to make an informed deci-
cations shall be required at award or sion about initiation of a covered Fed-
commitment, covering activities oc- eral action;
curring between December 23, 1989, and (2) Technical discussions regarding
the date of award or commitment. the preparation of an unsolicited pro-
However, for awards and commitments posal prior to its official submission;
in process prior to the December 23, and,
1989 effective date of these provisions, (3) Capability presentations by per-
but not made before December 23, 1989, sons seeking awards from an agency
disclosure forms shall not be required pursuant to the provisions of the Small
at time of award or commitment but Business Act, as amended by Public
shall be filed within 30 days. Law 95–507 and other subsequent
(h) No reporting is required for an ac- amendments.
tivity paid for with appropriated funds (e) Only those activities expressly au-
if that activity is allowable under ei- thorized by this section are allowable
ther subpart B or C. under this section.
Subpart B—Activities by Own § 20.205 Professional and technical

Employees services.
(a) The prohibition on the use of ap-
§ 20.200 Agency and legislative liaison. propriated funds, in § 20.100 (a), does
(a) The prohibition on the use of ap- not apply in the case of a payment of
propriated funds, in § 20.100 (a), does reasonable compensation made to an
not apply in the case of a payment of officer or employee of a person request-
reasonable compensation made to an ing or receiving a Federal contract,
officer or employee of a person request- grant, loan, or cooperative agreement
ing or receiving a Federal contract, or an extension, continuation, renewal,
grant, loan, or cooperative agreement amendment, or modification of a Fed-
if the payment is for agency and legis- eral contract, grant, loan, or coopera-
lative liaison activities not directly re- tive agreement if payment is for pro-
lated to a covered Federal action. fessional or technical services rendered
(b) For purposes of paragraph (a) of directly in the preparation, submis-
this section, providing any information sion, or negotiation of any bid, pro-
specifically requested by an agency or posal, or application for that Federal
Congress is allowable at any time. contract, grant, loan, or cooperative
(c) For purposes of paragraph (a) of agreement or for meeting requirements
this section, the following agency and imposed by or pursuant to law as a
legislative liaison activities are allow- condition for receiving that Federal
able at any time only where they are contract, grant, loan, or cooperative
not related to a specific solicitation for agreement.
any covered Federal action: (b) For purposes of paragraph (a) of
(1) Discussing with an agency (in- this section, ‘‘professional and tech-
cluding individual demonstrations) the nical services’’ shall be limited to ad-
qualities and characteristics of the per- vice and analysis directly applying any
son’s products or services, conditions professional or technical discipline.
or terms of sale, and service capabili- For example, drafting of a legal docu-
ties; and, ment accompanying a bid or proposal
(2) Technical discussions and other by a lawyer is allowable. Similarly,
activities regarding the application or technical advice provided by an engi-
adaptation of the person’s products or neer on the performance or operational
services for an agency’s use. capability of a piece of equipment ren-
(d) For purposes of paragraph (a) of dered directly in the negotiation of a
this section, the following agencies and contract is allowable. However, com-
legislative liaison activities are allow- munications with the intent to influ-
able only where they are prior to for- ence made by a professional (such as a
mal solicitation of any covered Federal licensed lawyer) or a technical person
action: (such as a licensed accountant) are not
181
allowable under this section unless gotiation of any bid, proposal, or appli-
they provide advice and analysis di- cation for that Federal contract, grant,
rectly applying their professional or loan, or cooperative agreement or for
technical expertise and unless the ad- meeting requirements imposed by or
vice or analysis is rendered directly pursuant to law as a condition for re-
and solely in the preparation, submis- ceiving that Federal contract, grant,
sion or negotiation of a covered Fed- loan, or cooperative agreement.
eral action. Thus, for example, commu- (b) The reporting requirements in
nications with the intent to influence § 20.110 (a) and (b) regarding filing a dis-
made by a lawyer that do not provide closure form by each person, if re-
legal advice or analysis directly and quired, shall not apply with respect to
solely related to the legal aspects of professional or technical services ren-
his or her client’s proposal, but gen-
dered directly in the preparation, sub-
erally advocate one proposal over an-
mission, or negotiation of any commit-
other are not allowable under this sec-
ment providing for the United States
tion because the lawyer is not pro-
viding professional legal services. to insure or guarantee a loan.
Similarly, communications with the (c) For purposes of paragraph (a) of
intent to influence made by an engi- this section, ‘‘professional and tech-
neer providing an engineering analysis nical services’’ shall be limited to ad-
prior to the preparation or submission vice and analysis directly applying any
of a bid or proposal are not allowable professional or technical discipline.
under this section since the engineer is For example, drafting or a legal docu-
providing technical services but not di- ment accompanying a bid or proposal
rectly in the preparation, submission by a lawyer is allowable. Similarly,
or negotiation of a covered Federal ac- technical advice provided by an engi-
tion. neer on the performance or operational
(c) Requirements imposed by or pur- capability of a piece of equipment ren-
suant to law as a condition for receiv- dered directly in the negotiation of a
ing a covered Federal award include contract is allowable. However, com-
those required by law or regulation, or munications with the intent to influ-
reasonably expected to be required by ence made by a professional (such as a
law or regulation, and any other re- licensed lawyer) or a technical person
quirements in the actual award docu- (such as a licensed accountant) are not
ments. allowable under this section unless
(d) Only those services expressly au- they provide advice and analysis di-
thorized by this section are allowable rectly applying their professional or
under this section. technical expertise and unless the ad-
vice or analysis is rendered directly
§ 20.210 Reporting. and solely in the preparation, submis-
No reporting is required with respect sion or negotiation of a covered Fed-
to payments of reasonable compensa- eral action. Thus, for example, commu-
tion made to regularly employed offi- nications with the intent to influence
cers or employees of a person. made by a lawyer that do not provide
legal advice or analysis directly and
Subpart C—Activities by Other solely related to the legal aspects of
Than Own Employees his or her client’s proposal, but gen-
erally advocate one proposal over an-
§ 20.300 Professional and technical other are not allowable under this sec-
services. tion because the lawyer is not pro-
(a) The prohibition on the use of ap- viding professional legal services.
propriated funds, in § 20.100 (a), does Similarly, communications with the
not apply in the case of any reasonable intent to influence made by an engi-
payment to a person, other than an of- neer providing an engineering analysis
ficer or employee of a person request- prior to the preparation or submission
ing or receiving a covered Federal ac- of a bid or proposal are not allowable
tion, if the payment is for professional under this section since the engineer is
or technical services rendered directly providing technical services but not di-
in the preparation, submission, or ne- rectly in the preparation, submission
182
or negotiation of a covered Federal ac- (e) First offenders under paragraphs

tion. (a) or (b) of this section shall be subject
(d) Requirements imposed by or pur- to a civil penalty of $10,000, absent ag-
suant to law as a condition for receiv- gravating circumstances. Second and
ing a covered Federal award include subsequent offenses by persons shall be
those required by law or regulation, or subject to an appropriate civil penalty
reasonably expected to be required by between $10,000 and $100,000, as deter-
law or regulation, and any other re- mined by the agency head or his or her
quirements in the actual award docu- designee.
ments. (f) An imposition of a civil penalty
(e) Persons other than officers or em- under this section does not prevent the
ployees of a person requesting or re- United States from seeking any other
ceiving a covered Federal action in- remedy that may apply to the same
clude consultants and trade associa- conduct that is the basis for the impo-
tions. sition of such civil penalty.
(f) Only those services expressly au-
thorized by this section are allowable § 20.405 Penalty procedures.
under this section. Agencies shall impose and collect
civil penalties pursuant to the provi-
Subpart D—Penalties and sions of the Program Fraud and Civil
Remedies Act, 31 U.S.C. sections 3803
Enforcement (except subsection (c)), 3804, 3805, 3806,
§ 20.400 Penalties. 3807, 3808, and 3812, insofar as these pro-
visions are not inconsistent with the
(a) Any person who makes an expend- requirements herein.
iture prohibited herein shall be subject
to a civil penalty of not less than § 20.410 Enforcement.
$10,000 and not more than $100,000 for The head of each agency shall take
each such expenditure. such actions as are necessary to ensure
(b) Any person who fails to file or that the provisions herein are vigor-
amend the disclosure form (see appen- ously implemented and enforced in
dix B) to be filed or amended if re- that agency.
quired herein, shall be subject to a civil
penalty of not less than $10,000 and not
more than $100,000 for each such fail- Subpart E—Exemptions
ure. § 20.500 Secretary of Defense.
(c) A filing or amended filing on or
after the date on which an administra- (a) The Secretary of Defense may ex-
tive action for the imposition of a civil empt, on a case-by-case basis, a cov-
penalty is commenced does not prevent ered Federal action from the prohibi-
the imposition of such civil penalty for tion whenever the Secretary deter-
a failure occurring before that date. An mines, in writing, that such an exemp-
administrative action is commenced tion is in the national interest. The
with respect to a failure when an inves- Secretary shall transmit a copy of each
tigating official determines in writing such written exemption to Congress
to commence an investigation of an al- immediately after making such a de-
legation of such failure. termination.
(d) In determining whether to impose (b) The Department of Defense may
a civil penalty, and the amount of any issue supplemental regulations to im-
such penalty, by reason of a violation plement paragraph (a) of this section.
by any person, the agency shall con-
sider the nature, circumstances, ex- Subpart F—Agency Reports
tent, and gravity of the violation, the
effect on the ability of such person to § 20.600 Semi-annual compilation.
continue in business, any prior viola- (a) The head of each agency shall col-
tions by such person, the degree of cul- lect and compile the disclosure reports
pability of such person, the ability of (see appendix B) and, on May 31 and
the person to pay the penalty, and such November 30 of each year, submit to
other matters as may be appropriate. the Secretary of the Senate and the
183
Clerk of the House of Representatives a and the Clerk of the House of Rep-
report containing a compilation of the resentatives.
information contained in the disclo- (h) Agencies shall keep the originals
sure reports received during the six- of all disclosure reports in the official
month period ending on March 31 or files of the agency.
September 30, respectively, of that
year. § 20.605 Inspector General report.
(b) The report, including the com- (a) The Inspector General, or other
pilation, shall be available for public official as specified in paragraph (b) of
inspection 30 days after receipt of the this section, of each agency shall pre-
report by the Secretary and the Clerk. pare and submit to Congress each year,
(c) Information that involves intel- commencing with submission of the
ligence matters shall be reported only President’s Budget in 1991, an evalua-
to the Select Committee on Intel- tion of the compliance of that agency
ligence of the Senate, the Permanent with, and the effectiveness of, the re-
Select Committee on Intelligence of quirements herein. The evaluation may
the House of Representatives, and the include any recommended changes that
Committees on Appropriations of the may be necessary to strengthen or im-
Senate and the House of Representa- prove the requirements.
(b) In the case of an agency that does
tives in accordance with procedures
not have an Inspector General, the
agreed to by such committees. Such in-
agency official comparable to an In-
formation shall not be available for
spector General shall prepare and sub-
public inspection.
mit the annual report, or, if there is no
(d) Information that is classified such comparable official, the head of
under Executive Order 12356 or any suc- the agency shall prepare and submit
cessor order shall be reported only to the annual report.
the Committee on Foreign Relations of (c) The annual report shall be sub-
the Senate and the Committee on For- mitted at the same time the agency
eign Affairs of the House of Represent- submits its annual budget justifica-
atives or the Committees on Armed tions to Congress.
Services of the Senate and the House of (d) The annual report shall include
Representatives (whichever such com- the following: All alleged violations re-
mittees have jurisdiction of matters lating to the agency’s covered Federal
involving such information) and to the actions during the year covered by the
Committees on Appropriations of the report, the actions taken by the head
Senate and the House of Representa- of the agency in the year covered by
tives in accordance with procedures the report with respect to those alleged
agreed to by such committees. Such in- violations and alleged violations in
formation shall not be available for previous years, and the amounts of
public inspection. civil penalties imposed by the agency
(e) The first semi-annual compilation in the year covered by the report.
shall be submitted on May 31, 1990, and
shall contain a compilation of the dis- APPENDIX A TO PART 20—CERTIFICATION
closure reports received from Decem- REGARDING LOBBYING
ber 23, 1989 to March 31, 1990. Certification for Contracts, Grants, Loans, and
(f) Major agencies, designated by the Cooperative Agreements
Office of Management and Budget
The undersigned certifies, to the best of his
(OMB), are required to provide ma- or her knowledge and belief, that:
chine-readable compilations to the (1) No Federal appropriated funds have
Secretary of the Senate and the Clerk been paid or will be paid, by or on behalf of
of the House of Representatives no the undersigned, to any person for influ-
later than with the compilations due encing or attempting to influence an officer
on May 31, 1991. OMB shall provide de- or employee of an agency, a Member of Con-
tailed specifications in a memorandum gress, an officer or employee of Congress, or
an employee of a Member of Congress in con-
to these agencies. nection with the awarding of any Federal
(g) Non-major agencies are requested contract, the making of any Federal grant,
to provide machine-readable compila- the making of any Federal loan, the entering
tions to the Secretary of the Senate into of any cooperative agreement, and the
184
Office of the Secretary of Transportation Pt. 20, App. A
extension, continuation, renewal, amend- U.S. Code. Any person who fails to file the
ment, or modification of any Federal con- required certification shall be subject to a
tract, grant, loan, or cooperative agreement. civil penalty of not less than $10,000 and not
(2) If any funds other than Federal appro- more than $100,000 for each such failure.
priated funds have been paid or will be paid
to any person for influencing or attempting Statement for Loan Guarantees and Loan
to influence an officer or employee of any Insurance
agency, a Member of Congress, an officer or
employee of Congress, or an employee of a The undersigned states, to the best of his
Member of Congress in connection with this or her knowledge and belief, that:
Federal contract, grant, loan, or cooperative If any funds have been paid or will be paid
agreement, the undersigned shall complete to any person for influencing or attempting
and submit Standard Form-LLL, ‘‘Disclosure to influence an officer or employee of any
Form to Report Lobbying,’’ in accordance agency, a Member of Congress, an officer or
with its instructions. employee of Congress, or an employee of a
(3) The undersigned shall require that the Member of Congress in connection with this
language of this certification be included in commitment providing for the United States
the award documents for all subawards at all to insure or guarantee a loan, the under-
tiers (including subcontracts, subgrants, and signed shall complete and submit Standard
contracts under grants, loans, and coopera- Form-LLL, ‘‘Disclosure Form to Report Lob-
tive agreements) and that all subrecipients bying,’’ in accordance with its instructions.
shall certify and disclose accordingly. Submission of this statement is a pre-
This certification is a material representa- requisite for making or entering into this
tion of fact upon which reliance was placed transaction imposed by section 1352, title 31,
when this transaction was made or entered U.S. Code. Any person who fails to file the
into. Submission of this certification is a required statement shall be subject to a civil
prerequisite for making or entering into this penalty of not less than $10,000 and not more
transaction imposed by section 1352, title 31, than $100,000 for each such failure.
185
Pt. 20, App. B 49 CFR Subtitle A (10–1–07 Edition)
APPENDIX B TO PART 20—DISCLOSURE FORM TO REPORT LOBBYING

186
EC02FE91.097</GPH>
Office of the Secretary of Transportation Pt. 20, App. B
187
EC02FE91.098</GPH>
188
EC02FE91.099</GPH>
PART 21—NONDISCRIMINATION IN proved before that effective date. This

FEDERALLY-ASSISTED PROGRAMS part does not apply to:
OF THE DEPARTMENT OF TRANS- (1) Any Federal financial assistance
by way of insurance or guaranty con-
PORTATION—EFFECTUATION OF
tracts;
TITLE VI OF THE CIVIL RIGHTS ACT (2) Money paid, property transferred,
OF 1964 or other assistance extended before the
effective date of this part, except
Sec.
21.1 Purpose.
where such assistance was subject to
21.3 Application of this part. the title VI regulations of any agency
21.5 Discrimination prohibited. whose responsibilities are now exer-
21.7 Assurances required. cised by this Department;
21.9 Compliance information. (3) Any assistance to any individual
21.11 Conduct of investigations. who is the ultimate beneficiary; or
21.13 Procedure for effecting compliance.
21.15 Hearings. (4) Any employment practice, under
21.17 Decisions and notices. any such program, of any employer,
21.19 Judicial review. employment agency, or labor organiza-
21.21 Effect on other regulations, forms, and tion, except to the extent described in
instructions. § 21.5(c).
21.23 Definitions.
The fact that a type of Federal finan-
APPENDIX A TO PART 21—ACTIVITIES TO WHICH
THIS PART APPLIES cial assistance is not listed in appendix
APPENDIX B TO PART 21—ACTIVITIES TO WHICH A to this part shall not mean, if title
THIS PART APPLIES WHEN A PRIMARY OB- VI of the Act is otherwise applicable,
JECTIVE OF THE FEDERAL FINANCIAL AS- that a program is not covered. Other
SISTANCE IS TO PROVIDE EMPLOYMENT types of Federal financial assistance
APPENDIX C TO PART 21—APPLICATION OF under statutes now in force or herein-
PART 21 TO CERTAIN FEDERAL FINANCIAL
after enacted may be added to appendix
ASSISTANCE OF THE DEPARTMENT OF
TRANSPORTATION A to this part.
(b) In any program receiving Federal
AUTHORITY: 42 U.S.C. 2000d-2000d–7.
financial assistance in the form, or for
SOURCE: 35 FR 10080, June 18, 1970, unless the acquisition, of real property or an
otherwise noted. interest in real property, to the extent
that rights to space on, over, or under
§ 21.1 Purpose.
any such property are included as part
The purpose of this part is to effec- of the program receiving that assist-
tuate the provisions of title VI of the ance, the nondiscrimination require-
Civil Rights Act of 1964 (hereafter re- ment of this part shall extend to any
ferred to as the Act) to the end that no facility located wholly or in part in
person in the United States shall, on that space.
the grounds of race, color, or national
origin, be excluded from participation [35 FR 10080, June 18, 1970, as amended at 68
in, be denied the benefits of, or be oth- FR 51389, Aug. 26, 2003]
erwise subjected to discrimination
§ 21.5 Discrimination prohibited.
under any program or activity receiv-
ing Federal financial assistance from (a) General. No person in the United
the Department of Transportation. States shall, on the grounds of race,
color, or national origin be excluded
§ 21.3 Application of this part. from participation in, be denied the
(a) This part applies to any program benefits of, or be otherwise subjected
for which Federal financial assistance to discrimination under, any program
is authorized under a law administered to which this part applies.
by the Department, including the types (b) Specific discriminatory actions
of Federal financial assistance listed in prohibited:
appendix A to this part. It also applies (1) A recipient to which this part ap-
to money paid, property transferred, or plies may not, directly or through con-
other Federal financial assistance ex- tractual or other arrangements, on the
tended after the effective date of this grounds of race, color, or national ori-
part pursuant to an application ap- gin.
189
(i) Deny a person any service, finan- cant may not make selections with the
cial aid, or other benefit provided purpose or effect of excluding persons
under the program; from, denying them the benefits of, or
(ii) Provide any service, financial aid, subjecting them to discrimination
or other benefit to a person which is under any program to which this regu-
different, or is provided in a different lation applies, on the grounds of race,
manner, from that provided to others color, or national origin; or with the
under the program; purpose or effect of defeating or sub-
(iii) Subject a person to segregation stantially impairing the accomplish-
or separate treatment in any matter ment of the objectives of the Act or
related to his receipt of any service, fi- this part.
nancial aid, or other benefit under the (4) As used in this section the serv-
program; ices, financial aid, or other benefits
(iv) Restrict a person in any way in provided under a program receiving
the enjoyment of any advantage or Federal financial assistance include
privilege enjoyed by others receiving any service, financial aid, or other ben-
any service, financial aid, or other benefit provided in or through a facility
efit under the program; provided with the aid of Federal finan-
(v) Treat a person differently from cial assistance.
others in determining whether he satis- (5) The enumeration of specific forms
fies any admission, enrollment, quota, of prohibited discrimination in this
eligibility, membership, or other re- paragraph does not limit the generality
quirement or condition which persons
of the prohibition in paragraph (a) of
must meet in order to be provided any
this section.
service, financial aid, or other benefit
(6) Examples demonstrating the ap-
provided under the program;
(vi) Deny a person an opportunity to plication of the provisions of this sec-
participate in the program through the tion to certain types of Federal finan-
provision of services or otherwise or af- cial assistance administered by the De-
ford him an opportunity to do so which partment of Transportation are con-
is different from that afforded others tained in appendix C of this part.
under the program; or (7) This part does not prohibit the
(vii) Deny a person the opportunity consideration of race, color, or na-
to participate as a member of a plan- tional origin if the purpose and effect
ning, advisory, or similar body which is are to remove or overcome the con-
an integral part of the program. sequences of practices or impediments
(2) A recipient, in determining the which have restricted the availability
types of services, financial aid, or other of, or participation in, the program or
benefits, or facilities which will be pro- activity receiving Federal financial as-
vided under any such program, or the sistance, on the grounds of race, color,
class of person to whom, or the situa- or national origin. Where prior dis-
tions in which, such services, financial criminatory practice or usage tends, on
aid, other benefits, or facilities will be the grounds of race, color, or national
provided under any such program, or origin to exclude individuals from par-
the class of persons to be afforded an ticipation in, to deny them the benefits
opportunity to participate in any such of, or to subject them to discrimina-
program; may not, directly or through tion under any program or activity to
contractual or other arrangements, which this part applies, the applicant
utilize criteria or methods of adminis- or recipient must take affirmative ac-
tration which have the effect of sub- tion to remove or overcome the effects
jecting persons to discrimination be- of the prior discriminatory practice or
cause of their race, color, or national usage. Even in the absence of prior dis-
origin, or have the effect of defeating criminatory practice or usage, a recipi-
or substantially impairing accomplish- ent in administering a program or ac-
ment of the objectives of the program tivity to which this part applies, is ex-
with respect to individuals of a par- pected to take affirmative action to as-
ticular race, color, or national origin. sure that no person is excluded from
(3) In determining the site or loca- participation in or denied the benefits
tion of facilities, a recipient or appli- of the program or activity on the
190
grounds of race, color, or national ori- (d) A recipient may not make a selec-
gin. tion of a site or location of a facility if
(c) Employment practices: the purpose of that selection, or its ef-
(1) Where a primary objective of the fect when made, is to exclude individ-
Federal financial assistance to a pro- uals from participation in, to deny
gram to which this part applies is to them the benefits of, or to subject
provide employment, a recipient or them to discrimination under any pro-
other party subject to this part shall gram or activity to which this rule ap-
not, directly or through contractual or plies, on the grounds of race, color, or
other arrangements, subject a person national origin; or if the purpose is to,
or its effect when made will, substan-
to discrimination on the ground of
tially impair the accomplishment of
race, color, or national origin in its
the objectives of this part.
employment practices under such pro-
gram (including recruitment or re- [35 FR 10080, June 18, 1970, as amended by
cruitment advertising, hiring, firing, Amdt. 72–2, 38 FR 17997, July 5, 1973; 68 FR
upgrading, promotion, demotion, trans- 51389, Aug. 26, 2003]
fer, layoff, termination, rates of pay or § 21.7 Assurances required.
other forms of compensation or bene-
fits, selection for training or appren- (a) General. (1) Every application for
ticeship, use of facilities, and treat- Federal financial assistance to which
ment of employees). Such recipient this part applies, except an application
shall take affirmative action to insure to which paragraph (b) of this section
that applicants are employed, and em- applies, and every application for Fed-
ployees are treated during employ- eral financial assistance to provide a
ment, without regard to their race, facility shall, as a condition to its ap-
proval and the extension of any Fed-
color, or national origin. The require-
eral financial assistance pursuant to
ments applicable to construction em-
the application, contain or be accom-
ployment under any such program
panied by, an assurance that the pro-
shall be those specified in or pursuant
gram will be conducted or the facility
to Part III of Executive Order 11246 or
operated in compliance with all re-
any Executive order which supersedes
quirements imposed by or pursuant to
it.
this part. Every awardof Federal finan-
(2) Federal financial assistance to cial assistance shall require the sub-
programs under laws funded or admin- mission of such an assurance. In the
istered by the Department which have case where the Federal financial assist-
as a primary objective the providing of ance is to provide or is in the form of
employment include those set forth in personal property, or real property or
appendix B to this part. interest therein or structures thereon,
(3) Where a primary objective of the the assurance shall obligate the recipi-
Federal financial assistance is not to ent, or, in the case of a subsequent
provide employment, but discrimina- transfer, the transferee, for the period
tion on the grounds of race, color, or during which the property is used for a
national origin in the employment purpose for which the Federal financial
practices of the recipient or other per- assistance is extended or for another
sons subject to the regulation tends, on purpose involving the provision of
the grounds of race, color, or national similar services or benefits, or for as
origin, to exclude individuals from par- long as the recipient retains ownership
ticipation in, to deny them the benefits or possession of the property, which-
of, or to subject them to discrimina- ever is longer. In all other cases the as-
tion under any program to which this surance shall obligate the recipient for
regulation applies, the provisions of the period during which Federal finan-
paragraph (c)(1) of this section shall cial assistance is extended to the pro-
apply to the employment practices of gram. The Secretary shall specify the
the recipient or other persons subject form of the foregoing assurances, and
to the regulation, to the extent nec- the extent to which like assurances
essary to assure equality of oppor- will be required of subgrantees, con-
tunity to, and nondiscriminatory tractors and subcontractors, trans-
treatment of, beneficiaries. ferees, successors in interest, and other
191
participants. Any such assurance shall to the application: (1) Contain or be ac-
include provisions which give the companied by a statement that the
United States a right to seek its judi- program is (or, in the case of a new
cial enforcement. program, will be) conducted in compli-
(2) In the case where Federal finan- ance with all requirements imposed by
cial assistance is provided in the form or pursuant to this part, and (2) provide
of a transfer of real property, struc- or be accompanied by provision for
tures, or improvements thereon, or in- such methods of administration for the
terest therein, from the Federal Gov- program as are found by the Secretary
ernment, the instrument effecting or to give reasonable guarantee that the
recording the transfer shall contain a applicant and all recipients of Federal
covenant running with the land assur- financial assistance under such pro-
ing nondiscrimination for the period gram will comply with all require-
during which the real property is used ments imposed by or pursuant to this
for a purpose for which the Federal fi- part.
nancial assistance is extended or for
another purpose involving the provi- [35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
sion of similar services or benefits.
Where no transfer of property or inter- § 21.9 Compliance information.
est therein from the Federal Govern-
ment is involved, but property is ac- (a) Cooperation and assistance. The
quired or improved with Federal finan- Secretary shall to the fullest extent
cial assistance, the recipient shall practicable seek the cooperation of re-
agree to include such covenant in any cipients in obtaining compliance with
subsequent transfer of such property. this part and shall provide assistance
When the property is obtained from the and guidance to recipients to help
Federal Government, such covenant them comply voluntarily with this
may also include a condition coupled part.
with a right to be reserved by the De- (b) Compliance reports. Each recipient
partment to revert title to the prop- shall keep such records and submit to
erty in the event of a breach of the cov- the Secretary timely, complete, and
enant where, in the discretion of the accurate compliance reports at such
Secretary, such a condition and right times, and in such form and containing
of reverter is appropriate to the stat- such information, as the Secretary
ute under which the real property is may determine to be necessary to en-
obtained and to the nature of the grant able him to ascertain whether the re-
and the grantee. In such event if a cipient has complied or is complying
transferee of real property proposes to with this part. In the case in which a
mortgage or otherwise encumber the primary recipient extends Federal fi-
real property as security for financing nancial assistance to any other recipi-
construction of new, or improvement of ent, such other recipient shall also sub-
existing, facilities on such property for mit such compliance reports to the pri-
the purposes for which the property mary recipient as may be necessary to
was transferred, the Secretary may enable the primary recipient to carry
agree, upon request of the transferee out its obligations under this part. In
and if necessary to accomplish such fi- general recipients should have avail-
nancing, and upon such conditions as able for the Secretary racial and ethnic
he deems appropriate, to subordinate data showing the extent to which mem-
such right of reversion to the lien of bers of minority groups are bene-
such mortgage or other encumbrance. ficiaries of programs receiving Federal
(b) Continuing Federal financial assist- financial assistance.
ance. Every application by a State or a (c) Access to sources of information.
State agency for continuing Federal fi- Each recipient shall permit access by
nancial assistance to which this part the Secretary during normal business
applies (including the types of Federal hours to such of its books, records, ac-
financial assistance listed in appendix counts, and other sources of informa-
A to this part) shall as a condition to tion, and its facilities as may be perti-
its approval and the extension of any nent to ascertain compliance with this
Federal financial assistance pursuant part. Where any information required
192
of a recipient is in the exclusive posses- comply with this part, the Secretary
sion of any other agency, institution, will so inform the recipient and the
or person and this agency, institution, matter will be resolved by informal
or person fails or refuses to furnish this means whenever possible. If it has been
information, the recipient shall so cer- determined that the matter cannot be
tify in its report and shall set forth resolved by informal means, action will
what efforts it has made to obtain the be taken as provided for in § 21.13.
information. (2) If an investigation does not war-
(d) Information to beneficiaries and rant action pursuant to paragraph
participants. Each recipient shall make (d)(1) of this section the Secretary will
available to participants, beneficiaries, so inform the recipient and the com-
and other interested persons such in- plainant, if any, in writing.
formation regarding the provisions of (e) Intimidatory or retaliatory acts pro-
this part and its applicability to the hibited. No recipient or other person
program for which the recipient re- shall intimidate, threaten, coerce, or
ceives Federal financial assistance, and discriminate against any individual for
make such information available to the purpose of interfering with any
them in such manner, as the Secretary right or privilege secured by section 601
finds necessary to apprise such persons of the Act or this part, or because he
of the protections against discrimina- has made a complaint, testified, as-
tion assured them by the Act and this sisted, or participated in any manner
part. in an investigation, proceeding, or
hearing under this part. The identity of
[35 FR 10080, June 18, 1970, as amended by
Amdt. 72–2, 38 FR 17997, July 5, 1973; 68 FR complainants shall be kept confiden-
51389, Aug. 26, 2003] tial except to the extent necessary to
carry out the purposes of this part, in-
§ 21.11 Conduct of investigations. cluding the conduct of any investiga-
(a) Periodic compliance reviews. The tion, hearing, or judicial proceeding
Secretary shall from time to time re- arising thereunder.
view the practices of recipients to de- [35 FR 10080, June 18, 1970, as amended by
termine whether they are complying Amdt. 72–2, 38 FR 17997, July 5, 1973]
with this part.
(b) Complaints. Any person who be- § 21.13 Procedure for effecting compli-
lieves himself or any specific class of ance.
persons to be subjected to discrimina- (a) General. If there appears to be a
tion prohibited by this part may by failure or threatened failure to comply
himself or by a representative file with with this part, and if the noncompli-
the Secretary a written complaint. A ance or threatened noncompliance can-
complaint must be filed not later than not be corrected by informal means,
180 days after the date of the alleged compliance with this part may be ef-
discrimination, unless the time for fil- fected by the suspension or termi-
ing is extended by the Secretary. nation of or refusal to grant or to con-
(c) Investigations. The Secretary will tinue Federal financial assistance or by
make a prompt investigation whenever any other means authorized by law.
a compliance review, report, com- Such other means may include, but are
plaint, or any other information indi- not limited to: (1) A reference to the
cates a possible failure to comply with Department of Justice with a rec-
this part. The investigation will in- ommendation that appropriate pro-
clude, where appropriate, a review of ceedings be brought to enforce any
the pertinent practices and policies of rights of the United States under any
the recipient, the circumstances under law of the United States (including
which the possible noncompliance with other titles of the Act), or any assur-
this part occurred, and other factors ance or other contractual undertaking,
relevant to a determination as to and (2) any applicable proceeding under
whether the recipient has failed to State or local law.
comply with this part. (b) Noncompliance with § 21.7. If an ap-
(d) Resolution of matters. (1) If an in- plicant fails or refuses to furnish an as-
vestigation pursuant to paragraph (c) surance required under § 21.7 or other-
of this section indicates a failure to wise fails or refuses to comply with a
193
requirement imposed by or pursuant to (2) The recipient or other person has

that section, Federal financial assist- been notified of its failure to comply
ance may be refused in accordance with and of the action to be taken to effect
the procedures of paragraph (c) of this compliance; and
section. The Department shall not be (3) The expiration of at least 10 days
required to provide assistance in such a from the mailing of such notice to the
case during the pendency of the admin- recipient or other person. During this
istrative proceedings under such para- period of at least 10 days, additional ef-
graph. However, subject to § 21.21, the forts shall be made to persuade the re-
Department shall continue assistance cipient or other person to comply with
during the pendency of such pro- the regulation and to take such correc-
ceedings where such assistance is due tive action as may be appropriate.
and payable pursuant to an application
approved prior to the effective date of § 21.15 Hearings.
this part. (a) Opportunity for hearing. Whenever
(c) Termination of or refusal to grant or an opportunity for a hearing is re-
to continue Federal financial assistance. quired by § 21.13(c), reasonable notice
No order suspending, terminating, or shall be given by registered or certified
refusing to grant or continue Federal mail, return receipt requested, to the
financial assistance shall become effec- affected applicant or recipient. This
tive until: notice shall advise the applicant or re-
(1) The Secretary has advised the ap- cipient of the action proposed to be
plicant or recipient of his failure to taken, the specific provision under
comply and has determined that com- which the proposed action against it is
pliance cannot be secured by voluntary to be taken, and the matters of fact or
means; law asserted as the basis for this ac-
(2) There has been an express finding tion, and either: (1) Fix a date not less
on the record, after opportunity for than 20 days after the date of such no-
hearing, of a failure by the applicant or tice within which the applicant or re-
recipient to comply with a requirement cipient may request of the Secretary
imposed by or pursuant to this part; that the matter be scheduled for hear-
(3) The action has been approved by ing or (2) advise the applicant or recipi-
the Secretary pursuant to § 21.17(e); and ent that the matter in question has
been set down for hearing at a stated
(4) The expiration of 30 days after the
place and time. The time and place so
Secretary has filed with the committee
fixed shall be reasonable and shall be
of the House and the committee of the
subject to change for cause. The com-
Senate having legislative jurisdiction
plainant, if any, shall be advised of the
over the program involved, a full writ-
time and place of the hearing. An ap-
ten report of the circumstances and the
plicant or recipient may waive a hear-
grounds for such action.
ing and submit written information
Any action to suspend or terminate or and argument for the record. The fail-
to refuse to grant or to continue Fed- ure of an applicant or recipient to re-
eral financial assistance shall be lim- quest a hearing under this paragraph
ited to the particular political entity, or to appear at a hearing for which a
or part thereof, or other applicant or date has been set shall be deemed to be
recipient as to whom such a finding has a waiver of the right to a hearing under
been made and shall be limited in its section 602 of the Act and § 21.13(c) and
effect to the particular program, or consent to the making of a decision on
part thereof, in which such noncompli- the basis of such information as is
ance has been so found. available.
(d) Other means authorized by law. No (b) Time and place of hearing. Hear-
action to effect compliance with title ings shall be held at the offices of the
VI of the Act by any other means au- Department in Washington, D.C., at a
thorized by law shall be taken by this time fixed by the Secretary unless he
Department until: determines that the convenience of the
(1) The Secretary has determined applicant or recipient or of the Depart-
that compliance cannot be secured by ment requires that another place be se-
voluntary means; lected. Hearings shall be held before
194
the Secretary, or at his discretion, be- Federal financial assistance is ex-

fore a hearing examiner appointed in tended and to which this part applies,
accordance with section 3105 of title 5, or noncompliance with this part and
United States Code, or detailed under the regulations of one or more other
section 3344 of title 5, United States Federal departments or agencies issued
Code. under title VI of the Act, the Secretary
(c) Right to counsel. In all proceedings may, by agreement with such other de-
under this section, the applicant or re- partments or agencies, where applica-
cipient and the Department shall have ble, provide for the conduct of consoli-
the right to be represented by counsel. dated or joint hearings, and for the ap-
(d) Procedures, evidence, and record. (1) plication to such hearings of rules or
The hearing, decision, and any admin- procedures not inconsistent with this
istrative review thereof shall be con- part. Final decisions in such cases, in-
ducted in conformity with sections 554 sofar as this regulation is concerned,
through 557 of title 5, United States shall be made in accordance with
Code, and in accordance with such § 21.17.
rules of procedure as are proper (and
not inconsistent with this section) re- [35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
lating to the conduct of the hearing,
giving of notices subsequent to those
§ 21.17 Decisions and notices.
provided for in paragraph (a) of this
section, taking of testimony, exhibits, (a) Procedure on decisions by hearing
arguments and briefs, requests for find- examiner. If the hearing is held by a
ings, and other related matters. Both hearing examiner, the hearing exam-
the Department and the applicant or iner shall either make an initial deci-
recipient shall be entitled to introduce sion, if so authorized, or certify the en-
all relevant evidence on the issues as tire record including his recommended
stated in the notice for hearing or as findings and proposed decision to the
determined by the officer conducting Secretary for a final decision, and a
the hearing at the outset of or during copy of such initial decision or certifi-
the hearing. cation shall be mailed to the applicant
(2) Technical rules of evidence do not or recipient. Where the initial decision
apply to hearings conducted pursuant is made by the hearing examiner the
to this part, but rules or principles de- applicant or recipient may, within 30
signed to assure production of the most days after the mailing of such notice of
credible evidence available and to sub- initial decision, file with the Secretary
ject testimony to test by cross-exam- his exceptions to the initial decision,
ination shall be applied where reason- with his reasons therefor. In the ab-
ably necessary by the officer con- sence of exceptions, the Secretary may,
ducting the hearing. The hearing offi- on his own motion, within 45 days after
cer may exclude irrelevant, immate- the initial decision, serve on the appli-
rial, or unduly repetitious evidence. All cant or recipient a notice that he will
documents and other evidence offered review the decision. Upon the filing of
or taken for the record shall be open to such exceptions or of notice of review,
examination by the parties and oppor- the Secretary shall review the initial
tunity shall be given to refute facts decision and issue his own decision
and arguments advanced on either side thereon including the reasons therefor.
of the issues. A transcript shall be In the absence of either exceptions or a
made of the oral evidence except to the notice of review the initial decision
extent the substance thereof is stipu- shall, subject to paragraph (e) of this
lated for the record. All decisions shall section, constitute the final decision of
be based upon the hearing record and the Secretary.
written findings shall be made. (b) Decisions on record or review by the
(e) Consolidated or joint hearings. In Secretary. Whenever a record is cer-
cases in which the same or related tified to the Secretary for decision or
facts are asserted to constitute non- he reviews the decision of a hearing ex-
compliance with this part with respect aminer pursuant to paragraph (a) of
to two or more Federal statutes, au- this section, or whenever the Secretary
thorities, or other means by which conducts the hearing, the applicant or
195
recipient shall be given reasonable op- fected by an order issued under para-
portunity to file with him briefs or graph (f) of this section shall be re-
other written statements of its conten- stored to full eligibility to receive Fed-
tions, and a written copy of the final eral financial assistance if it satisfies
decision of the Secretary shall be sent the terms and conditions of that order
to the applicant or recipient and to the for such eligibility or if it brings itself
complainant, if any. into compliance with this part and pro-
(c) Decisions on record where a hearing vides reasonable assurance that it will
is waived. Whenever a hearing is waived fully comply with this part.
pursuant to § 21.15, a decision shall be (2) Any applicant or recipient ad-
made by the Secretary on the record versely affected by an order entered
and a written copy of such decision pursuant to paragraph (f) of this sec-
shall be sent to the applicant or recipi- tion may at any time request the Sec-
ent, and to the complainant, if any. retary to restore fully its eligibility to
(d) Rulings required. Each decision of receive Federal financial assistance.
a hearing examiner or the Secretary Any such request shall be supported by
shall set forth his ruling on each find- information showing that the applicant
ing, conclusion, or exception presented, or recipient has met the requirements
and shall identify the requirement or of paragraph (g)(1) of this section. If
requirements imposed by or pursuant the Secretary determines that those
to this part with which it is found that requirements have been satisfied, he
the applicant or recipient has failed to shall restore such eligibility.
comply. (3) If the Secretary denies any such
(e) Approval by Secretary. Any final request, the applicant or recipient may
decision by an official of the Depart- submit a request for a hearing in writ-
ment, other than the Secretary person- ing, specifying who it believes such of-
ally, which provides for the suspension ficial to have been in error. It shall
or termination of, or the refusal to thereupon be given an expeditious
grant or continue Federal financial as- hearing, with a decision on the record
sistance, or the imposition of any other in accordance with rules or procedures
sanction available under this part or issued by the Secretary. The applicant
the Act, shall promptly be transmitted or recipient will be restored to such eli-
to the Secretary personally, who may gibility if it proves at such a hearing
approve such decision, may vacate it, that it satisfied the requirements of
or remit or mitigate any sanction im- paragraph (g)(1) of this section.
posed. While proceedings under this paragraph
(f) Content of orders. The final deci- are pending, the sanctions imposed by
sion may provide for suspension or ter- the order issued under paragraph (f) of
mination of, or refusal to grant or con- this section shall remain in effect.
tinue Federal financial assistance, in
whole or in part, to which this regula- [35 FR 10080, June 18, 1970, as amended at 68
tion applies, and may contain such FR 51389, Aug. 26, 2003]
terms, conditions, and other provisions
§ 21.19 Judicial review.
as are consistent with and will effec-
tuate the purposes of the Act and this Action taken pursuant to section 602
part, including provisions designed to of the Act is subject to judicial review
assure that no Federal financial assist- as provided in section 603 of the Act.
ance to which this regulation applies
will thereafter be extended to the ap- § 21.21 Effect on other regulations,
plicant or recipient determined by such forms, and instructions.
decision to be in default in its perform- (a) Effect on other regulations. All reg-
ance of an assurance given by it pursu- ulations, orders, or like directions
ant to this part, or to have otherwise issued before the effective date of this
failed to comply with this part, unless part by any officer of the Department
and until it corrects its noncompliance which impose requirements designed to
and satisfies the Secretary that it will prohibit any discrimination against in-
fully comply with this part. dividuals on the grounds of race, color,
(g) Post termination proceedings. (1) An or national origin under any program
applicant or recipient adversely af- to which this part applies, and which
196
authorize the suspension or termi- tion had been taken by the Secretary
nation of or refusal to grant or to con- of this Department.
tinue Federal financial assistance to
[35 FR 10080, June 18, 1970, as amended at 68
any applicant for a recipient of such FR 51389, Aug. 26, 2003]
assistance for failure to comply with
such requirements, are hereby super- § 21.23 Definitions.
seded to the extent that such discrimi-
Unless the context requires other-
nation is prohibited by this part, ex-
wise, as used in this part:
cept that nothing in this part may be
(a) Applicant means a person who sub-
considered to relieve any person of any
mits an application, request, or plan
obligation assumed or imposed under
required to be approved by the Sec-
any such superseded regulation, order,
retary, or by a primary recipient, as a
instruction, or like direction before the
condition to eligibility for Federal fi-
effective date of this part. Nothing in nancial assistance, and ‘‘application’’
this part, however, supersedes any of means such an application, request, or
the following (including future amend- plan.
ments thereof): (1) Executive Order (b) Facility includes all or any part of
11246 (3 CFR, 1965 Supp., p. 167) and reg- structures, equipment, or other real or
ulations issued thereunder or (2) any personal property or interests therein,
other orders, regulations, or instruc- and the provision of facilities includes
tions, insofar as such orders, regula- the construction, expansion, renova-
tions, or instructions prohibit discrimi- tion, remodeling, alteration or acquisi-
nation on the ground of race, color, or tion of facilities.
national origin in any program or situ- (c) Federal financial assistance in-
ation to which this part is inapplicable, cludes:
or prohibit discrimination on any other (1) Grants and loans of Federal funds;
ground. (2) The grant or donation of Federal
(b) Forms and instructions. The Sec- property and interests in property;
retary shall issue and promptly make (3) The detail of Federal personnel;
available to all interested persons
(4) The sale and lease of, and the per-
forms and detailed instructions and
mission to use (on other than a casual
procedures for effectuating this part as or transient basis), Federal property or
applied to programs to which this part any interest in such property without
applies and for which he is responsible. consideration or at a nominal consider-
(c) Supervision and coordination. The ation, or at a consideration which is re-
Secretary may from time to time as- duced for the purpose of assisting the
sign to officials of the Department, or recipient, or in recognition of the pub-
to officials of other departments or lic interest to be served by such sale or
agencies of the Government with the lease to the recipient; and
consent of such departments or agen- (5) Any Federal agreement, arrange-
cies, responsibilities in connection ment, or other contract which has as
with the effectuation of the purposes of one of its purposes the provision of as-
title VI of the Act and this part (other sistance.
than responsibility for final decision as (d) Primary recipient means any re-
provided in § 21.17), including the cipient that is authorized or required
achievement of effective coordination to extend Federal financial assistance
and maximum uniformity within the to another recipient.
Department and within the Executive (e) Program or activity and program
Branch of the Government in the appli- mean all of the operations of any enti-
cation of title VI and this part to simi- ty described in paragraphs (e)(1)
lar programs and in similar situations. through (4) of this section, any part of
Any action taken, determination made which is extended Federal financial as-
or requirement imposed by an official sistance:
of another department or agency act- (1)(i) A department, agency, special
ing pursuant to an assignment of re- purpose district, or other instrumen-
sponsibility under this paragraph shall tality of a State or of a local govern-
have the same effect as though such ac- ment; or
197
Pt. 21, App. A 49 CFR Subtitle A (10–1–07 Edition)
(ii) The entity of such State or local APPENDIX A TO PART 21—ACTIVITIES TO

government that distributes such as- WHICH THIS PART APPLIES
sistance and each such department or
1. Use of grants made in connection with
agency (and each other State or local
Federal-aid highway systems (23 U.S.C. 101 et
government entity) to which the as- seq.).
sistance is extended, in the case of as- 2. Use of grants made in connection with
sistance to a State or local govern- the Highway Safety Act of 1966 (23 U.S.C. 401
ment; et seq.).
(2)(i) A college, university, or other 3. Use of grants in connection with the Na-
postsecondary institution, or a public tional Traffic and Motor Vehicle Safety Act
system of higher education; or of 1966 (15 U.S.C. 1391–1409, 1421–1425).
4. Lease of real property and the grant of
(ii) A local educational agency (as de- permits, licenses, easements and rights-of-
fined in 20 U.S.C. 7801), system of voca- way covering real property under control of
tional education, or other school sys- the Coast Guard (14 U.S.C. 93 (n) and (o)).
tem; 5. Utilization of Coast Guard personnel and
(3)(i) An entire corporation, partner- facilities by any State, territory, possession,
ship, or other private organization, or or political subdivision thereof (14 U.S.C.
141(a)).
an entire sole proprietorship—
6. Use of Coast Guard personnel for duty in
(A) If assistance is extended to such connection with maritime instruction and
corporation, partnership, private orga- training by the States, territories, and Puer-
nization, or sole proprietorship as a to Rico (14 U.S.C. 148).
whole; or 7. Use of obsolete and other Coast Guard
(B) Which is principally engaged in material by sea scout service of Boy Scouts
the business of providing education, of America, any incorporated unit of the
Coast Guard auxiliary, and public body or
health care, housing, social services, or
private organization not organized for profit
parks and recreation; or (14 U.S.C. 641(a)).
(ii) The entire plant or other com- 8. U.S. Coast Guard Auxiliary Program (14
parable, geographically separate facil- U.S.C. 821–832).
ity to which Federal financial assist- 9. Use of grants for the support of basic sci-
ance is extended, in the case of any entific research by nonprofit institutions of
other corporation, partnership, private higher education and nonprofit organizations
organization, or sole proprietorship; or whose primary purpose is conduct of sci-
entific research (42 U.S.C. 1891).
(4) Any other entity which is estab- 10. Use of grants made in connection with
lished by two or more of the entities the Federal-aid Airport Program (secs. 1–15
described in paragraph (e)(1), (2), or (3) and 17–20 of the Federal Airport Act, 49
of this section. U.S.C. 1101–1114, 1116–1120).
(f) Recipient may mean any State, 11. Use of U.S. land acquired for public air-
territory, possession, the District of ports under:
Columbia, or Puerto Rico, or any polit- a. Section 16 of the Federal Airport Act, 49
ical subdivision thereof, or instrumen- U.S.C. 1115; and
b. Surplus Property Act (sec. 13(g) of the
tality thereof, any public or private
Surplus Property Act of 1944, 50 U.S.C. App.
agency, institution, or organization, or 1622(g), and sec. 3 of the Act of Oct. 1, 1949,
other entity, or any individual, in any 50 U.S.C. App. 1622b).
State, territory, possession, the Dis- 12. Activities carried out in connection
trict of Columbia, or Puerto Rico, to with the Aviation Education Program of the
whom Federal financial assistance is Federal Aviation Administration under sec-
extended, directly or through another tions 305, 311, and 313(a) of the Federal Avia-
recipient, including any successor, as- tion Act of 1958, as amended (49 U.S.C. 1346,
1352, and 1354(a)).
signee, or transferee thereof, but such
13. Use of grants and loans made in connec-
term does not include any ultimate tion with Urban Mass Transportation Cap-
beneficiary. ital Facilities Grant and Loan Program—
(g) Secretary means the Secretary of Urban Mass Transportation Act of 1964, as
Transportation or, except in § 21.17 (e), amended (49 U.S.C. 1602).
any person to whom he has delegated 14. Use of grants made in connection with
his authority in the matter concerned. Urban Mass Transportation Research and
Demonstration Grant Program—Urban Mass
[35 FR 10080, June 18, 1970, as amended at 68 Transportation Act of 1964, as amended (49
FR 51389, Aug. 26, 2003] U.S.C. 1605).
198
Office of the Secretary of Transportation Pt. 21, App. C
15. Use of grants made in connection with (iii) An aircraft operator may not be re-
Urban Mass Transportation Technical Stud- quired to park his aircraft at a location that
ies Grant Program—Urban Mass Transpor- is less protected, or less accessible from the
tation Act of 1964, as amended (49 U.S.C. terminal facilities, than locations offered to
1607a). others, because of his race, color, or national
16. Use of grants made in connection with origin.
Urban Mass Transportation Managerial (iv) The pilot of an aircraft may not be re-
Training Grant Program—Urban Mass quired to help more extensively in fueling
Transportation Act of 1964, as amended (49 operations, and may not be offered less inci-
U.S.C. 1607b). dental service (such as windshield wiping),
17. Use of grants made in connection with than other pilots, because of his race, color,
Urban Mass Transportation Grants for Re- or national origin.
search and Training Programs in Institu- (v) No pilot or crewmember eligible for ac-
tions of Higher Learning—Urban Mass cess to a pilot’s lounge or to unofficial com-
Transportation Act of 1964, as amended (49 munication facilities such as a UNICOM fre-
U.S.C. 1607c). quency may be restricted in that access be-
18. Use of grants made in connection with cause of his race, color, or national origin.
the High Speed Ground Transportation Act, (vi) Access to facilities maintained at the
as amended (49 U.S.C. 631–642). airport by air carriers or commercial opera-
tors for holders of first-class transportation
tickets or frequent users of the carrier’s or
APPENDIX B TO PART 21—ACTIVITIES TO
operator’s services may not be restricted on
WHICH THIS PART APPLIES WHEN A the basis of race, color, or national origin.
PRIMARY OBJECTIVE OF THE FED- (vii) Passengers and crewmembers seeking
ERAL FINANCIAL ASSISTANCE IS TO ground transportation from the airport may
PROVIDE EMPLOYMENT not be assigned to different vehicles, or de-
layed or embarrassed in assignment to vehi-
1. Appalachia Regional Development Act of cles, by the airport sponsor or his lessees,
1965 (40 U.S.C. App. 1 et seq.). concessionaires, or contractors, because of
race, color, or national origin.
APPENDIX C TO PART 21—APPLICATION (viii) Where there are two or more sites
OF PART 21 TO CERTAIN FEDERAL FI- having equal potential to serve the aero-
NANCIAL ASSISTANCE OF THE DE- nautical needs of the area, the airport spon-
PARTMENT OF TRANSPORTATION sor shall select the site least likely to ad-
versely affect existing communities. Such
NONDISCRIMINATION ON FEDERALLY ASSISTED site selection shall not be made on the basis
PROJECTS of race, color, or national origin.
(ix) Employment at obligated airports, in-
(a) Examples. The following examples, with- cluding employment by tenants and conces-
out being exhaustive, illustrate the applica- sionaires shall be available to all regardless
tion of the nondiscrimination provisions of of race, creed, color, sex, or national origin.
this part on projects receiving Federal finan- The sponsor shall coordinate his airport plan
cial assistance under the programs of certain with his local transit authority and the
Department of Transportation operating ad- Urban Mass Transportation Administration
ministrations: to assure public transportation, convenient
(1) Federal Aviation Administration. (i) The to the disadvantaged areas of nearby com-
airport sponsor or any of his lessees, conces- munities to enhance employment opportuni-
sionaires, or contractors may not differen- ties for the disadvantaged and minority pop-
tiate between members of the public because ulation.
of race, color, or national origin in fur- (x) The sponsor shall assure that the mi-
nishing, or admitting to, waiting rooms, pas- nority business community in his area is ad-
senger holding areas, aircraft tiedown areas, vised of the opportunities offered by airport
restaurant facilities, restrooms, or facilities concessions, and that bids are solicited from
operated under the compatible land use con- such qualified minority firms, and awards
cept. made without regard to race, color, or na-
(ii) The airport sponsor and any of his les- tional origin.
sees, concessionaires, or contractors must (2) Federal Highway Administration. (i) The
offer to all members of the public the same State, acting through its highway depart-
degree and type of service without regard to ment, may not discriminate in its selection
race, color, or national origin. This rule ap- and retention of contractors, including with-
plies to fixed base operators, restaurants, out limitation, those whose services are re-
snack bars, gift shops, ticket counters, bag- tained for, or incidental to, construction,
gage handlers, car rental agencies, lim- planning, research, highway safety, engi-
ousines and taxis franchised by the airport neering, property management, and fee con-
sponsor, insurance underwriters, and other tracts and other commitments with person
businesses catering to the public at the air- for services and expenses incidental to the
port. acquisition of right-of-way.
199
(ii) The State may not discriminate location of routes may not be determined on
against eligible persons in making relocation the basis of race, color, or national origin.
payments and in providing relocation advi- (iv) The location of projects requiring land
sory assistance where relocation is neces- acquisition and the displacement of persons
sitated by highway right-of-way acquisi- from their residences and businesses may not
tions. be determined on the basis of race, color, or
(iii) Federal-aid contractors may not dis- national origin.
criminate in their selection and retention of (b) Obligations of the airport operator—(1)
first-tier subcontractors, and first-tier sub- Tenants, contractors, and concessionaires. Each
contractors may not discriminate in their airport operator shall require each tenant,
selection and retention of second-tier subcontractor, and concessionaire who provides
contractors, who participate in Federal-aid any activity, service, or facility at the air-
highway construction, acquisition of right- port under lease, contract with, or franchise
of-way and related projects, including those from the airport, to covenant in a form spec-
who supply materials and lease equipment. ified by the Administrator, Federal Aviation
(iv) The State may not discriminate Administration, that he will comply with
against the traveling public and business the nondiscrimination requirements of this
users of the federally assisted highway in part.
their access to and use of the facilities and (2) Notification of beneficiaries. The airport
services provided for public accommodations operator shall: (i) Make a copy of this part
(such as eating, sleeping, rest, recreation, available at his office for inspection during
and vehicle servicing) constructed on, over normal working hours by any person asking
or under the right-of-way of such highways. for it, and (ii) conspicuously display a sign,
(v) Neither the State, any other persons or signs, furnished by the FAA, in the main
subject to this part, nor its contractors and public area or areas of the airport, stating
subcontractors may discriminate in their that discrimination based on race, color, or
employment practices in connection with national origin is prohibited on the airport.
highway construction projects or other (3) Reports. Each airport owner subject to
projects assisted by the Federal Highway Ad- this part shall, within 15 days after he re-
ministration. ceives it, forward to the Area Manager of the
(vi) The State shall not locate or design a FAA Area in which the airport is located a
highway in such a manner as to require, on copy of each written complaint charging dis-
the basis of race, color, or national origin, crimination because of race, color, or na-
the relocation of any persons. tional origin by any person subject to this
(vii) The State shall not locate, design, or part, together with a statement describing
construct a highway in such a manner as to all actions taken to resolve the matter, and
deny reasonable access to, and use thereof, the results thereof. Each airport operator
to any persons on the basis of race, color, or shall submit to the area manager of the FAA
national origin. area in which the airport is located a report
(3) Urban Mass Transportation Administra-
for the preceding year on the date and in a
tion. (i) Any person who is, or seeks to be, a
form prescribed by the Federal Aviation Ad-
patron of any public vehicle which is oper-
ministrator.
ated as a part of, or in conjunction with, a
project shall be given the same access, seat- [35 FR 10080, June 18, 1970, as amended by
ing, and other treatment with regard to the Amdt. 21–1, 38 FR 5875, Mar. 5, 1973; Amdt. 21–
use of such vehicle as other persons without 3, 40 FR 14318, Mar. 31, 1975]
regard to their race, color, or national ori-
gin. PART 23—PARTICIPATION OF DIS-
(ii) No person who is, or seeks to be, an em-
ployee of the project sponsor or lessees, con- ADVANTAGED BUSINESS ENTER-
cessionaires, contractors, licensees, or any PRISE IN AIRPORT CONCES-
organization furnishing public transpor- SIONS
tation service as a part of, or in conjunction
with, the project shall be treated less favor- Subpart A—General
ably than any other employee or applicant
with regard to hiring, dismissal, advance- Sec.
ment, wages, or any other conditions and 23.1 What are the objectives of this part?
benefits of employment, on the basis of race, 23.3 What do the terms used in this part
color, or national origin. mean?
(iii) No person or group of persons shall be 23.5 To whom does this part apply?
discriminated against with regard to the 23.7 How long do the provisions of this part
routing, scheduling, or quality of service of remain in effect?
transportation service furnished as a part of 23.9 What are the nondiscrimination and as-
the project on the basis of race, color, or na- surance requirements of this part for re-
tional origin. Frequency of service, age and cipients?
quality of vehicles assigned to routes, qual- 23.11 What compliance and enforcement
ity of stations serving different routes, and provisions are used under this part?
200
23.13 How does the Department issue guid- 23.73 What requirements apply to privately-
ance, interpretations, exemptions, and owned or leased terminal buildings?
waivers pertaining to this part? 23.75 Can recipients enter into long-term,
exclusive agreements with conces-
Subpart B—ACDBE programs sionaires?
23.77 Does this part preempt local require-
23.21 Who must submit an ACDBE program ments?
to FAA, and when? 23.79 Does this part permit recipients to use
23.23 What administrative provisions must local geographic preferences?
be in a recipient’s ACDBE program?
APPENDIX A TO PART 23—UNIFORM REPORT OF
23.25 What measures must recipients in-
ACDBE PARTICIPATION
clude in their ACDBE programs to ensure
nondiscriminatory participation of AUTHORITY: 49 U.S.C. 47107; 42 U.S.C. 2000d;
ACDBEs in concessions? 49 U.S.C. 322; Executive Order 12138.
23.27 What information does a recipient
SOURCE: 70 FR 14508, Mar. 22, 2005, unless
have to retain and report about imple-
otherwise noted.
mentation of its ACDBE program?
23.29 What monitoring and compliance pro-
cedures must recipients follow? Subpart A—General
Subpart C—Certification of ACDBEs § 23.1 What are the objectives of this
part?
23.31 What certification standards and pro-
cedures do recipients use to certify This part seeks to achieve several ob-
ACDBEs? jectives:
23.33 What size standards do recipients use (a) To ensure nondiscrimination in
to determine the eligibility of ACDBEs? the award and administration of oppor-
23.35 What is the personal net worth stand- tunities for concessions by airports re-
ard for disadvantaged owners of ceiving DOT financial assistance;
ACDBEs? (b) To create a level playing field on
23.37 Are firms certified under 49 CFR part
26 eligible to participate as ACDBEs?
which ACDBEs can compete fairly for
23.39 What other certification requirements opportunities for concessions;
apply in the case of ACDBEs? (c) To ensure that the Department’s
ACDBE program is narrowly tailored
Subpart D—Goals, Good Faith Efforts, and in accordance with applicable law;
Counting (d) To ensure that only firms that
fully meet this part’s eligibility stand-
23.41 What is the basic overall goal require-
ment for recipients?
ards are permitted to participate as
23.43 What are the consultation require- ACDBEs;
ments in the development of recipients’ (e) To help remove barriers to the
overall goals? participation of ACDBEs in opportuni-
23.45 What are the requirements for submit- ties for concessions at airports receiv-
ting overall goal information to the ing DOT financial assistance; and
FAA? (f) To provide appropriate flexibility
23.47 What is the base for a recipient’s goals to airports receiving DOT financial as-
for concessions other than car rentals?
23.49 What is the base for a recipient’s goals
sistance in establishing and providing
for car rentals? opportunities for ACDBEs.
23.51 How are a recipient’s overall goals ex-
pressed and calculated? § 23.3 What do the terms used in this
23.53 How do car rental companies count part mean?
ACDBE participation toward their goals? Administrator means the Adminis-
23.55 How do recipients count ACDBE par- trator of the Federal Aviation Admin-
ticipation toward goals for items other istration (FAA).
than car rentals?
23.57 What happens if a recipient falls short
Affiliation has the same meaning the
of meeting its overall goals? term has in the Small Business Admin-
23.59 What is the role of the statutory 10 istration (SBA) regulations, 13 CFR
percent goal in the ACDBE program? part 121, except that the provisions of
23.61 Can recipients use quotas or set-asides SBA regulations concerning affiliation
as part of their their ACDBE programs? in the context of joint ventures (13
CFR § 121.103(f)) do not apply to this
Subpart E—Other Provisions part.
23.71 Does a recipient have to change exist- (1) Except as otherwise provided in 13
ing concession agreements? CFR part 121, concerns are affiliates of
201
each other when, either directly or in- (1) A business, located on an airport
directly: subject to this part, that is engaged in
(i) One concern controls or has the the sale of consumer goods or services
power to control the other; or to the public under an agreement with
(ii) A third party or parties controls the recipient, another concessionaire,
or has the power to control both; or or the owner or lessee of a terminal, if
(iii) An identity of interest between other than the recipient.
or among parties exists such that af- (2) A business conducting one or
filiation may be found. more of the following covered activi-
(2) In determining whether affiliation ties, even if it does not maintain an of-
exists, it is necessary to consider all fice, store, or other business location
appropriate factors, including common on an airport subject to this part, as
long as the activities take place on the
ownership, common management, and
airport: Management contracts and
contractual relationships. Affiliates
subcontracts, a web-based or other
must be considered together in deter-
electronic business in a terminal or
mining whether a concern meets small
which passengers can access at the ter-
business size criteria and the statutory
minal, an advertising business that
cap on the participation of firms in the
provides advertising displays or mes-
ACDBE program.
sages to the public on the airport, or a
Airport Concession Disadvantaged Busi- business that provides goods and serv-
ness Enterprise (ACDBE) means a con- ices to concessionaires.
cession that is a for-profit small busi-
ness concern— Example to paragraph (2): A supplier of
(1) That is at least 51 percent owned goods or a management contractor main-
tains its office or primary place of business
by one or more individuals who are
off the airport. However the supplier pro-
both socially and economically dis- vides goods to a retail establishment in the
advantaged or, in the case of a corpora- airport; or the management contractor oper-
tion, in which 51 percent of the stock is ates the parking facility on the airport.
owned by one or more such individuals; These businesses are considered concessions
and for purposes of this part.
(2) Whose management and daily (3) For purposes of this subpart, a
business operations are controlled by business is not considered to be ‘‘lo-
one or more of the socially and eco- cated on the airport’’ solely because it
nomically disadvantaged individuals picks up and/or delivers customers
who own it. under a permit, license, or other agree-
Alaska Native Corporation (ANC) ment. For example, providers of taxi,
means any Regional Corporation, Vil- limousine, car rental, or hotel services
lage Corporation, Urban Corporation, are not considered to be located on the
or Group Corporation organized under airport just because they send shuttles
the laws of the State of Alaska in ac- onto airport grounds to pick up pas-
cordance with the Alaska Native sengers or drop them off. A business is
Claims Settlement Act (43 U.S.C. 1601 considered to be ‘‘located on the air-
et seq.) port,’’ however, if it has an on-airport
Car dealership means an establish- facility. Such facilities include in the
ment primarily engaged in the retail case of a taxi operator, a dispatcher; in
sale of new and/or used automobiles. the case of a limousine, a booth selling
Car dealerships frequently maintain re- tickets to the public; in the case of a
pair departments and carry stocks of car rental company, a counter at which
replacement parts, tires, batteries, and its services are sold to the public or a
automotive accessories. Such estab- ready return facility; and in the case of
lishments also frequently sell pickup a hotel operator, a hotel located any-
trucks and vans at retail. In the stand- where on airport property.
ard industrial classification system, (4) Any business meeting the defini-
car dealerships are categorized in tion of concession is covered by this
NAICS code 441110. subpart, regardless of the name given
Concession means one or more of the to the agreement with the recipient,
types of for-profit businesses listed in concessionaire, or airport terminal
paragraph (1) or (2) of this definition: owner or lessee. A concession may be
202
operated under various types of agree- Indian tribe means any Indian tribe,
ments, including but not limited to the band, nation, or other organized group
following: or community of Indians, including
(i) Leases. any ANC, which is recognized as eligi-
(ii) Subleases. ble for the special programs and serv-
(iii) Permits. ices provided by the United States to
(iv) Contracts or subcontracts. Indians because of their status as Indi-
(v) Other instruments or arrange- ans, or is recognized as such by the
ments. State in which the tribe, band, nation,
(5) The conduct of an aeronautical group, or community resides. See defi-
activity is not considered a concession nition of ‘‘tribally-owned concern’’ in
for purposes of this subpart. Aero- this section.
nautical activities include scheduled Joint venture means an association of
and non-scheduled air carriers, air an ACDBE firm and one or more other
taxis, air charters, and air couriers, in firms to carry out a single, for-profit
their normal passenger or freight car- business enterprise, for which the par-
rying capacities; fixed base operators; ties combine their property, capital, ef-
flight schools; recreational service pro- forts, skills and knowledge, and in
viders (e.g., sky-diving, parachute- which the ACDBE is responsible for a
jumping, flying guides); and air tour distinct, clearly defined portion of the
services. work of the contract and whose shares
(6) Other examples of entities that do in the capital contribution, control,
not meet the definition of a concession management, risks, and profits of the
include flight kitchens and in-flight ca- joint venture are commensurate with
terers servicing air carriers, govern- its ownership interest. Joint venture
ment agencies, industrial plants, farm entities are not certified as ACDBEs.
leases, individuals leasing hangar Large hub primary airport means a
space, custodial and security contracts, commercial service airport that has a
telephone and electric service to the number of passenger boardings equal to
airport facility, holding companies, at least one percent of all passenger
and skycap services under contract boardings in the United States.
with an air carrier or airport. Management contract or subcontract
Concessionaire means a firm that means an agreement with a recipient
owns and controls a concession or a or another management contractor
portion of a concession. under which a firm directs or operates
Department (DOT) means the U.S. De- one or more business activities, the as-
partment of Transportation, including sets of which are owned, leased, or oth-
the Office of the Secretary and the erwise controlled by the recipient. The
Federal Aviation Administration managing agent generally receives, as
(FAA). compensation, a flat fee or a percent-
Direct ownership arrangement means a age of the gross receipts or profit from
joint venture, partnership, sublease, li- the business activity. For purposes of
censee, franchise, or other arrange- this subpart, the business activity op-
ment in which a firm owns and con- erated or directed by the managing
trols a concession. agent must be other than an aero-
Good faith efforts means efforts to nautical activity, be located at an air-
achieve an ACDBE goal or other report subject to this subpart, and be en-
quirement of this part that, by their gaged in the sale of consumer goods or
scope, intensity, and appropriateness provision of services to the public.
to the objective, can reasonably be ex- Material amendment means a signifi-
pected to meet the program require- cant change to the basic rights or obli-
ment. gations of the parties to a concession
Immediate family member means fa- agreement. Examples of material
ther, mother, husband, wife, son, amendments include an extension to
daughter, brother, sister, grandmother, the term not provided for in the origi-
grandfather, grandson, granddaughter, nal agreement or a substantial increase
mother-in-law, father-in-law, brother- in the scope of the concession privi-
in-law, sister-in-law, or registered do- lege. Examples of nonmaterial amend-
mestic partner. ments include a change in the name of
203
the concessionaire or a change to the Primary industry classification means

payment due dates. the North American Industrial Classi-
Medium hub primary airport means a fication System (NAICS) code designa-
commercial service airport that has a tion that best describes the primary
number of passenger boardings equal to business of a firm. The NAICS Manual
at least 0.25 percent of all passenger is available through the National Tech-
boardings in the United States but less nical Information Service (NTIS) of the
than one percent of such passenger U.S. Department of Commerce (Spring-
boardings. field, VA, 22261). NTIS also makes ma-
Native Hawaiian means any indi- terials available through its Web site
vidual whose ancestors were natives, (http://www.ntis.gov/naics).
prior to 1778, of the area that now com- Primary recipient means a recipient to
prises the State of Hawaii. which DOT financial assistance is ex-
Native Hawaiian Organization means tended through the programs of the
any community service organization FAA and which passes some or all of it
serving Native Hawaiians in the State on to another recipient.
of Hawaii that is a not-for-profit orga- Principal place of business means the
nization chartered by the State of Ha- business location where the individuals
waii, and is controlled by Native Ha- who manage the firm’s day-to-day op-
waiians erations spend most working hours and
Noncompliance means that a recipient where top management’s business
has not correctly implemented the re- records are kept. If the offices from
quirements of this part. which management is directed and
Nonhub primary airport means a com- where business records are kept are in
mercial service airport that has more different locations, the recipient will
than 10,000 passenger boardings each determine the principal place of busi-
year but less than 0.05 percent of all ness for ACDBE program purposes.
passenger boardings in the United
Race-conscious means a measure or
States.
program that is focused specifically on
Part 26 means 49 CFR part 26, the De-
assisting only ACDBEs, including
partment of Transportation’s disadvan-
women-owned ACDBEs. For the pur-
taged business enterprise regulation
poses of this part, race-conscious meas-
for DOT-assisted contracts.
ures include gender-conscious meas-
Personal net worth means the net
ures.
value of the assets of an individual re-
Race-neutral means a measure or pro-
maining after total liabilities are de-
gram that is, or can be, used to assist
ducted. An individual’s personal net
all small businesses, without making
worth does not include the following:
distinctions or classifications on the
The individual’s ownership interest in
basis of race or gender.
an ACDBE firm or a firm that is apply-
ing for ACDBE certification; the indi- Secretary means the Secretary of
vidual’s equity in his or her primary Transportation or his/her designee.
place of residence; and other assets Set-aside means a contracting prac-
that the individual can document are tice restricting eligibility for the com-
necessary to obtain financing or a fran- petitive award of a contract solely to
chise agreement for the initiation or ACDBE firms.
expansion of his or her ACDBE firm (or Small Business Administration or SBA
have in fact been encumbered to sup- means the United States Small Busi-
port existing financing for the individ- ness Administration.
ual’s ACDBE business), to a maximum Small business concern means a for
of $3 million. An individual’s personal profit business that does not exceed the
net worth includes only his or her own size standards of § 23.33 of this part.
share of assets held jointly or as com- Small hub airport means a publicly
munity property with the individual’s owned commercial service airport that
spouse. has a number of passenger boardings
Primary airport means a commercial equal to at least 0.05 percent of all pas-
service airport that the Secretary de- senger boardings in the United States
termines to have more than 10,000 pas- but less than 0.25 percent of such pas-
sengers enplaned annually. senger boardings.
204
Socially and economically disadvan- You refers to a recipient, unless a

taged individual means any individual statement in the text of this part or
who is a citizen (or lawfully admitted the context requires otherwise (i.e.,
permanent resident) of the United ‘‘You must do XYZ’’ means that recipi-
States and who is— ents must do XYZ).
(1) Any individual determined by a [70 FR 14508, Mar. 22, 2005, as amended at 72
recipient to be a socially and economi- FR 15616, Apr. 2, 2007]
cally disadvantaged individual on a
case-by-case basis. § 23.5 To whom does this part apply?
(2) Any individual in the following If you are a recipient that has re-
groups, members of which are ceived a grant for airport development
rebuttably presumed to be socially and at any time after January 1988 that
economically disadvantaged: was authorized under Title 49 of the
(i) ‘‘Black Americans,’’ which in- United States Code, this part applies to
cludes persons having origins in any of you.
the Black racial groups of Africa;
(ii) ‘‘Hispanic Americans,’’ which in- § 23.7 How long do the provisions of
this part remain in effect?
cludes persons of Mexican, Puerto
Rican, Cuban, Dominican, Central or Unless extended by the Department,
South American, or other Spanish or the provisions of this rule will termi-
Portuguese culture or origin, regard- nate and become inoperative on April
less of race; 21, 2010.
(iii) ‘‘Native Americans,’’ which in-
§ 23.9 What are the nondiscrimination
cludes persons who are American Indi- and assurance requirements of this
ans, Eskimos, Aleuts, or Native Hawai- part for recipients?
ians;
(a) As a recipient, you must meet the
(iv) ‘‘Asian-Pacific Americans,’’
non-discrimination requirements pro-
which includes persons whose origins
vided in part 26, § 26.7 with respect to
are from Japan, China, Taiwan, Korea,
the award and performance of any con-
Burma (Myanmar), Vietnam, Laos,
cession agreement, management con-
Cambodia (Kampuchea), Thailand, Ma-
tract or subcontract, purchase or lease
laysia, Indonesia, the Philippines,
agreement, or other agreement covered
Brunei, Samoa, Guam, the U.S. Trust
by this subpart.
Territories of the Pacific Islands (Re-
(b) You must also take all necessary
public of Palau), the Commonwealth of
and reasonable steps to ensure non-
the Northern Marianas Islands, Macao,
discrimination in the award and ad-
Fiji, Tonga, Kirbati, Juvalu, Nauru,
ministration of contracts and agree-
Federated States of Micronesia, or
ments covered by this part.
Hong Kong;
(c) You must include the following
(v) ‘‘Subcontinent Asian Americans,’’ assurances in all concession agree-
which includes persons whose origins ments and management contracts you
are from India, Pakistan, Bangladesh, execute with any firm after April 21,
Bhutan, the Maldives Islands, Nepal or 2005:
Sri Lanka; (1) ‘‘This agreement is subject to the
(vi) Women; requirements of the U.S. Department
(vii) Any additional groups whose of Transportation’s regulations, 49 CFR
members are designated as socially and part 23. The concessionaire or con-
economically disadvantaged by the tractor agrees that it will not discrimi-
SBA, at such time as the SBA designa- nate against any business owner be-
tion becomes effective. cause of the owner’s race, color, na-
Recipient means any entity, public or tional origin, or sex in connection with
private, to which DOT financial assist- the award or performance of any con-
ance is extended, whether directly or cession agreement, management con-
through another recipient, through the tract, or subcontract, purchase or lease
programs of the FAA. agreement, or other agreement covered
Tribally-owned concern means any by 49 CFR part 23.
concern at least 51 percent owned by an (2) ‘‘The concessionaire or contractor
Indian tribe as defined in this section. agrees to include the above statements
205
in any subsequent concession agree- Department specifies to comply with

ment or contract covered by 49 CFR the intent of the provision from which
part 23, that it enters and cause those an exemption is granted. The Secretary
businesses to similarly include the will issue a written response to all ex-
statements in further agreements.’’ emption requests.
(d) You can apply for a waiver of any
§ 23.11 What compliance and enforce- provision of subpart B or D of this part
ment provisions are used under this including, but not limited to, any pro-
part?
visions regarding administrative re-
The compliance and enforcement pro- quirements, overall goals, contract
visions of part 26 (§§ 26.101 and 26.105 goals or good faith efforts. Program
through 26.109) apply to this part in the waivers are for the purpose of author-
same way that they apply to FAA re- izing you to operate an ACDBE pro-
cipients and programs under part 26. gram that achieves the objectives of
[70 FR 14508, Mar. 22, 2005, as amended at 72 this part by means that may differ
FR 15616, Apr. 2, 2007] from one or more of the requirements
of subpart B or D of this part. To re-
§ 23.13 How does the Department issue ceive a program waiver, you must fol-
guidance, interpretations, exemp- low these procedures:
tions, and waivers pertaining to
this part? (1) You must apply through the FAA.
The application must include a specific
(a) Only guidance and interpretations program proposal and address how you
(including interpretations set forth in will meet the criteria of paragraph
certification appeal decisions) con- (d)(2) of this section. Before submitting
sistent with this part 23 and issued your application, you must have had
after April 21, 2005, express the official public participation in developing your
positions and views of the Department proposal, including consultation with
of Transportation or the Federal Avia- the ACDBE community and at least
tion Administration. one public hearing. Your application
(b) The Secretary of Transportation, must include a summary of the public
Office of the Secretary of Transpor- participation process and the informa-
tation, and the FAA may issue written tion gathered through it.
interpretations of or written guidance (2) Your application must show
concerning this part. Written interpre- that—
tations and guidance are valid, and ex- (i) There is a reasonable basis to con-
press the official positions and views of clude that you could achieve a level of
the Department of Transportation or
ACDBE participation consistent with
the FAA, only if they are issued over
the objectives of this part using dif-
the signature of the Secretary of
ferent or innovative means other than
Transportation or if they contain the
those that are provided in subpart B or
following statement:
D of this part;
The General Counsel of the Department of (ii) Conditions at your airport are ap-
Transportation has reviewed this document propriate for implementing the pro-
and approved it as consistent with the lan- posal;
guage and intent of 49 CFR part 23.
(iii) Your proposal would prevent dis-
(c) You may apply for an exemption crimination against any individual or
from any provision of this part. To group in access to concession opportu-
apply, you must request the exemption nities or other benefits of the program;
in writing from the Office of the Sec- and
retary of Transportation or the FAA. (iv) Your proposal is consistent with
The Secretary will grant the request applicable law and FAA program re-
only if it documents special or excep- quirements.
tional circumstances, not likely to be (3) The FAA Administrator has the
generally applicable, and not con- authority to approve your application.
templated in connection with the rule- If the Administrator grants your appli-
making that established this part, that cation, you may administer your
make your compliance with a specific ACDBE program as provided in your
provision of this part impractical. You proposal, subject to the following con-
must agree to take any steps that the ditions:
206
(i) ACDBE eligibility is determined you must submit an ACDBE program

as provided in subpart C of this part, to the FAA at the time of your applica-
and ACDBE participation is counted as tion. Timely submission and FAA ap-
provided in §§ 23.53 through 23.55. proval of your ACDBE program are
(ii) Your level of ACDBE participa- conditions of eligibility for FAA finan-
tion continues to be consistent with cial assistance.
the objectives of this part; (c) If you are the owner of more than
(iii) There is a reasonable limitation one airport that is required to have an
on the duration of the your modified ACDBE program, you may implement
program; and one plan for all your locations. If you
(iv) Any other conditions the Admin- do so, you must establish a separate
istrator makes on the grant of the ACDBE goal for each location.
waiver. (d) If you make any significant
(4) The Administrator may end a pro- changes to your ACDBE program at
gram waiver at any time and require any time, you must provide the amend-
you to comply with this part’s provi- ed program to the FAA for approval be-
sions. The Administrator may also ex- fore implementing the changes.
tend the waiver, if he or she determines (e) If you are a non-primary airport,
that all requirements of this section non-commercial service airport, a gen-
continue to be met. Any such extension eral aviation airport, reliever airport,
shall be for no longer than period origi- or any other airport that does not have
nally set for the duration of the pro- scheduled commercial service, you are
gram waiver. not required to have an ACDBE pro-
[70 FR 14508, Mar. 22, 2005, as amended at 72
gram. However, you must take appro-
FR 15616, Apr. 2, 2007] priate outreach steps to encourage
available ACDBEs to participate as
concessionaires whenever there is a
Subpart B—ACDBE Programs concession opportunity.
§ 23.21 Who must submit an ACDBE § 23.23 What administrative provisions
program to FAA, and when? must be in a recipient’s ACDBE pro-
(a) Except as provided in paragraph gram?
(e) of this section, if you are a primary (a) If, as a recipient that must have
airport that has or was required to an ACDBE program, the program must
have a concessions DBE program prior include provisions for a policy state-
to April 21, 2005, you must submit a ment, liaison officer, and directory, as
revisesd ACDBE program meeting the provided in part 26, §§ 26.23, 26.25, and
requirements of this part to the appro- 26.31, as well as certification of
priate FAA regional office for ap- ACDBEs as provided by Subpart C of
proval. this part. You must include a state-
(1) You must submit this revised pro- ment in your program committing you
gram on the same schedule provided for to operating your ACDBE program in a
your first submission of overall goals nondiscriminatory manner.
in § 23.45(a) of this part. (b) You may combine your provisions
(2) Timely submission and FAA ap- for implementing these requirements
proval of your revised ACDBE program under this part and part 26 (e.g., a sin-
is a condition of eligibility for FAA fi- gle policy statement can cover both
nancial assistance. Federally-assisted airport contracts
(3) Until your new ACDBE program is and concessions; the same individual
submitted and approved, you must con- can act as the liaison officer for both
tinue to implement your concessions part 23 and part 26 matters).
DBE program that was in effect before
the effective date of this amendment to § 23.25 What measures must recipients
part 23, except with respect to any pro- include in their ACDBE programs
vision that is contrary to this part. to ensure nondiscriminatory par-
(b) If you are a primary airport that ticipation of ACDBEs in conces-
does not now have a DBE concessions sions?
program, and you apply for a grant of (a) You must include in your ACDBE
FAA funds for airport planning and de- program a narrative description of the
velopment under 49 U.S.C. 47107 et seq., types of measures you intend to make
207
to ensure nondiscriminatory participa- sufficient to meet an overall goal. The

tion of ACDBEs in concession and following are examples of race-con-
other covered activities. scious measures you can implement:
(b) Your ACDBE program must pro- (1) Establishing concession-specific
vide for setting goals consistent with goals for particular concession oppor-
the requirements of Subpart D of this tunities.
part. (i) If the objective of the concession-
(c) Your ACDBE program must pro- specific goal is to obtain ACDBE par-
vide for seeking ACDBE participation ticipation through a direct ownership
in all types of concession activities,
arrangement with a ACDBE, calculate
rather than concentrating participa-
the goal as a percentage of the total es-
tion in one category or a few categories
to the exclusion of others. timated annual gross receipts from the
(d) Your ACDBE program must in- concession.
clude race-neutral measures that you (ii) If the goal applies to purchases
will take. You must maximize the use and/or leases of goods and services, cal-
of race-neutral measures, obtaining as culate the goal by dividing the esti-
much as possible of the ACDBE partici- mated dollar value of such purchases
pation needed to meet overall goals and/or leases from ACDBEs by the
through such measures. These are re- total estimated dollar value of all pur-
sponsibilities that you directly under- chases to be made by the conces-
take as a recipient, in addition to the sionaire.
efforts that concessionaires make, to (iii) To be eligible to be awarded the
obtain ACDBE participation. The fol- concession, competitors must make
lowing are examples of race-neutral good faith efforts to meet this goal. A
measures you can implement: competitor may do so either by obtain-
(1) Locating and identifying ACDBEs ing enough ACDBE participation to
and other small businesses who may be meet the goal or by documenting that
interested in participating as conces- it made sufficient good faith efforts to
sionaires under this part; do so.
(2) Notifying ACDBEs of concession
(iv) The administrative procedures
opportunities and encouraging them to
compete, when appropriate; applicable to contract goals in part 26,
(3) When practical, structuring con- § 26.51–53, apply with respect to conces-
cession activities so as to encourage sion-specific goals.
and facilitate the participation of (2) Negotiation with a potential con-
ACDBEs cessionaire to include ACDBE partici-
(4) Providing technical assistance to pation, through direct ownership ar-
ACDBEs in overcoming limitations, rangements or measures, in the oper-
such as inability to obtain bonding or ation of the concession.
financing; (3) With the prior approval of FAA,
(5) Ensuring that competitors for other methods that take a competitor’s
concession opportunities are informed ability to provide ACDBE participation
during pre-solicitation meetings about into account in awarding a concession.
how the recipient’s ACDBE program (f) Your ACDBE program must re-
will affect the procurement process; quire businesses subject to ACDBE
(6) Providing information concerning goals at the airport (except car rental
the availability of ACDBE firms to companies) to make good faith efforts
competitors to assist them in obtain- to explore all available options to meet
ing ACDBE participation; and goals, to the maximum extent prac-
(7) Establishing a business develop-
ticable, through direct ownership ar-
ment program (see part 26, § 26.35); tech-
rangements with DBEs.
nical assistance program; or taking
other steps to foster ACDBE participa- (g) As provided in § 23.61 of this part,
tion in concessions. you must not use set-asides and quotas
(e) Your ACDBE program must also as means of obtaining ACDBE partici-
provide for the use of race-conscious pation.
measures when race-neutral measures,
standing alone, are not projected to be
208
§ 23.27 What information does a recipi- be made by the Unified Certification

ent have to retain and report about Program (UCP) in your state (see part
implementation of its ACDBE pro- 26, § 26.81).
gram? (b) The UCP’s directory of eligible
(a) As a recipient, you must retain DBEs must specify whether a firm is
sufficient basic information about your certified as a DBE for purposes of part
program implementation, your certifi- 26, an ACDBE for purposes of part 23, or
cation of ACDBEs, and the award and both.
performance of agreements and con- (c) As an airport or UCP, you must
tracts to enable the FAA to determine review the eligibility of currently cer-
your compliance with this part. You tified ACDBE firms to make sure that
must retain this data for a minimum of they meet the eligibility standards of
three years following the end of the this part.
concession agreement or other covered (1) You must complete these reviews
contract. as soon as possible, but in no case later
(b) Beginning March 1, 2006, you must than April 21, 2006 or three years from
submit an annual report on ACDBE the anniversary date of each firm’s
participation using the form found in most recent certification, whichever is
appendix A to this part. You must sub- later.
mit the report to the appropriate FAA (2) You must direct all currently cer-
Regional Civil Rights Office. tified ACDBEs to submit to you by
April 21, 2006, a personal net worth
§ 23.29 What monitoring and compli- statement, a certification of disadvan-
ance procedures must recipients tage, and an affidavit of no change.
follow?
As a recipient, you must implement § 23.33 What size standards do recipi-
appropriate mechanisms to ensure ents use to determine the eligibility
compliance with the requirements of of ACDBEs?
this part by all participants in the pro- (a) As a recipient, you must, except
gram. You must include in your con- as provided in paragraph (b) of this sec-
cession program the specific provisions tion, treat a firm as a small business
to be inserted into concession agree- eligible to be certified as an ACDBE if
ments and management contracts, the its gross receipts, averaged over the
enforcement mechanisms, and other firm’s previous three fiscal years, do
means you use to ensure compliance. not exceed $47.78 million.
These provisions must include a moni- (b) The following types of businesses
toring and enforcement mechanism to have size standards that differ from the
verify that the work committed to standard set forth in paragraph (a) of
ACDBEs is actually performed by the this section:
ACDBEs. Your program must describe (1) Banks and financial institutions:
in detail the level of effort and re- $750 million in assets;
sources devoted to monitoring and en- (2) Car rental companies: $63.71 mil-
forcement. lion average annual gross receipts over
the firm’s three previous fiscal years;
Subpart C—Certification and (3) Companies providing pay tele-
phones: 1,500 employees;
Eligibility of ACDBEs (4) Automobile dealers: 200 employ-
§ 23.31 What certification standards ees.
and procedures do recipients use to (c) The Department adjusts the num-
certify ACDBEs? bers in paragraphs (a) and (b)(2) of this
(a) As a recipient, you must use, ex- section using the Department of Com-
cept as provided in this subpart, the merce price deflators for purchases by
procedures and standards of part 26, state and local governments as the
§§ 26.61–91 for certification of ACDBEs basis for this adjustment. These adjust-
to participate in your concessions pro- ments are made every two years from
gram. Your ACDBE program must in- May 2, 2007. The Department publishes
corporate the use of these standards a final rule informing the public of
and procedures and must provide that each adjustment.
certification decisions for ACDBEs will [72 FR 15617, Apr. 2, 2007]
209
§ 23.35 What is the personal net worth tracts or other contracts it wishes to
standard for disadvantaged owners receive;
of ACDBEs? (6) Obtain a statement from the firm
The personal net worth standard used of the type(s) of concession(s) it prefers
in determining eligibility for purposes to operate or the type(s) of other con-
of this part is $750,000. Any individual tract(s) it prefers to perform.
who has a personal net worth exceeding (b) In reviewing the affidavit re-
this amount is not a socially and eco- quired by part 26, § 26.83(j), you must
nomically disadvantaged individual for ensure that the ACDBE firm meets the
purposes of this part, even if the indi- applicable size standard in § 23.33.
vidual is a member of a group other- (c) For purposes of this part, the
wise presumed to be disadvantaged. term prime contractor in part 26,
§ 26.87(i) includes a firm holding a
§ 23.37 Are firms certified under 49 prime contract with an airport conces-
CFR part 26 eligible to participate sionaire to provide goods or services to
as ACDBEs? the concessionaire or a firm holding a
(a) You must presume that a firm prime concession agreement with a re-
that is certified as a DBE under part 26 cipient.
is eligible to participate as an ACDBE. (d) With respect to firms owned by
By meeting the size, disadvantage (in- Alaska Native Corporations (ANCs),
cluding personal net worth), ownership the provisions of part 26, § 26.73(i) do
and control standards of part 26, the not apply under this part. The eligi-
firm will have also met the eligibility bility of ANC-owned firms for purposes
standards for part 23. of this part is governed by § 26.73(h).
(b) However, before certifying such a (e) When you remove a conces-
firm, you must ensure that the dis- sionaire’s eligibility after the conces-
advantaged owners of a DBE certified sionaire has entered a concession
under part 26 are able to control the agreement, because the firm exceeded
firm with respect to its activity in the the small business size standard or be-
concessions program. In addition, you cause an owner has exceeded the per-
are not required to certify a part 26 sonal net worth standard, and the firm
DBE as a part 23 ACDBE if the firm in all other respects remains an eligi-
does not do work relevant to the air- ble DBE, you may continue to count
port’s concessions program. the concessionaire’s participation to-
ward DBE goals during the remainder
§ 23.39 What other certification re- of the current concession agreement.
quirements apply in the case of However, you must not count the con-
ACDBEs? cessionaire’s participation toward DBE
(a) The provisions of part 26, §§ 26.83 goals beyond the termination date for
(c)(2) through (c)(6) do not apply to cer- the concession agreement in effect at
tifications for purposes of this part. In- the time of the decertification (e.g., in
stead, in determining whether a firm is a case where the agreement is renewed
an eligible ACDBE, you must take the or extended, or an option for continued
following steps: participation beyond the current term
(1) Obtain the resumes or work his- of the agreement is exercised).
tories of the principal owners of the (f) When UCPs are established in a
firm and personally interview these in- state (see part 26, § 26.81), the UCP,
dividuals; rather than individual recipients, cer-
(2) Analyze the ownership of stock of tifies firms for the ACDBE concession
the firm, if it is a corporation; program.
(3) Analyze the bonding and financial (g) You must use the Uniform Appli-
capacity of the firm; cation Form found in appendix F to
(4) Determine the work history of the part 26. However, you must instruct ap-
firm, including any concession con- plicants to take the following addi-
tracts or other contracts it may have tional steps:
received; (1) In the space available in section
(5) Obtain or compile a list of the li- 2(B)(7) of the form, the applicant must
censes of the firm and its key per- state that it is applying for certifi-
sonnel to perform the concession con- cation as an ACDBE.
210
(2) With respect to section 4(C) of the FAA any significant adjustments that
form, the applicant must provide infor- you make to your goal in the time be-
mation on an attached page concerning fore your next scheduled submission.
the address/location, ownership/lease (d) Your goals established under this
status, current value of property or part must provide for participation by
lease, and fees/lease payments paid to all certified ACDBEs and may not be
the airport. subdivided into group-specific goals.
(3) The applicant need not complete (e) If you fail to establish and imple-
section 4(I) and (J). However, the appli- ment goals as provided in this section,
cant must provide information on an you are not in compliance with this
attached page concerning any other part. If you establish and implement
airport concession businesses the appli- goals in a way different from that pro-
cant firm or any affiliate owns and/or vided in this part, you are not in com-
operates, including name, location, pliance with this part. If you fail to
type of concession, and start date of comply with this requirement, you are
concession. not eligible to receive FAA financial
(h) Car rental companies and private assistance.
terminal owners or lessees are not au-
thorized to certify firms as ACDBEs. § 23.43 What are the consultation re-
As a car rental company or private ter- quirements in the development of
minal owner or lessee, you must obtain recipients’ overall goals?
ACDBE participation from firms which (a) As a recipient, you must consult
a recipient or UCPs have certified as with stakeholders before submitting
ACDBEs. your overall goals to FAA.
(i) You must use the certification (b) Stakeholders with whom you
standards of this part to determine the must consult include, but are not lim-
ACDBE eligibility of firms that provide ited to, minority and women’s business
goods and services to concessionaires. groups, community organizations,
trade associations representing conces-
Subpart D—Goals, Good Faith sionaires currently located at the air-
Efforts, and Counting port, as well as existing conces-
sionaires themselves, and other offi-
§ 23.41 What is the basic overall goal cials or organizations which could be
requirement for recipients? expected to have information con-
(a) If you are a recipient who must cerning the availability of disadvan-
implement an ACDBE program, you taged businesses, the effects of dis-
must, except as provided in paragraph crimination on opportunities for
(b) of this section, establish two sepa- ACDBEs, and the recipient’s efforts to
rate overall ACDBE goals. The first is increase participation of ACDBEs.
for car rentals; the second is for con-
cessions other than car rentals. § 23.45 What are the requirements for
(b) If your annual car rental conces- submitting overall goal information
to the FAA?
sion revenues, averaged over the three-
years preceding the date on which you (a) You must submit your overall
are required to submit overall goals, do goals to the appropriate FAA Regional
not exceed $200,000, you are not re- Civil Rights Office for approval. Your
quired to submit a car rental overall first set of overall goals meeting the
goal. If your annual revenues for con- requirements of this subpart are due on
cessions other than car rentals, aver- the following schedule:
aged over the three years preceding the (1) If you are a large or medium hub
date on which you are required to sub- primary airport on April 21, 2005, by
mit overall goals, do not exceed January 1, 2006. You must make your
$200,000, you are not required to submit next submissions by October 1, 2008.
a non-car rental overall goal. (2) If you are a small hub primary
(c) Each overall goal must cover a airport on April 21, 2005, by October 1,
three-year period. You must review 2006.
your goals annually to make sure they (3) If you are a nonhub primary air-
continue to fit your circumstances ap- port on April 21, 2005, by October 1,
propriately. You must report to the 2007.
211
(b) You must then submit new goals six months before executing the con-
every three years after the date that cession agreement for the new conces-
applies to you. sion opportunity.
(c) Timely submission and FAA ap-
proval of your overall goals is a condi- § 23.47 What is the base for a recipi-
tion of eligibility for FAA financial as- ent’s goal for concessions other
than car rentals?
sistance.
(d) In the time before you make your (a) As a recipient, the base for your
first submission under paragraph (a) of goal includes the total gross receipts of
this section, you must continue to use concessions, except as otherwise pro-
the overall goals that have been ap- vided in this section.
proved by the FAA before the effective (b) This base does not include the
date of this part. gross receipts of car rental operations.
(e) Your overall goal submission (c) The dollar amount of a manage-
must include a description of the meth- ment contract or subcontract with a
od used to calculate your goals and the non-ACDBE and the gross receipts of
data you relied on. You must ‘‘show business activities to which a manage-
your work’’ to enable the FAA to un- ment or subcontract with a non-
derstand how you concluded your goals ACDBE pertains are not added to this
were appropriate. This means that you base.
must provide to the FAA the data, cal- (d) This base does not include any
culations, assumptions, and reasoning portion of a firm’s estimated gross re-
used in establishing your goals. ceipts that will not be generated from
(f) Your submission must include a concession.
your projection of the portions of your Example to paragraph (d): A firm operates a
overall goals you propose to meet restaurant in the airport terminal which
through use of race-neutral and race- serves the traveling public and, under the
conscious means, respectively, and the same lease agreement, provides in-flight ca-
tering service to air carriers. The projected
basis for making this projection (see
gross receipts from the restaurant are in-
§ 23.51(d)(5)) cluded in the overall goal calculation, while
(g) FAA may approve or disapprove the gross receipts to be earned by the in-
the way you calculated your goal, in- flight catering services are not.
cluding your race-neutral/race-con-
scious ‘‘split,’’ as part of its review of § 23.49 What is the base for a recipi-
your plan or goal submission. Except ent’s goal for car rentals?
as provided in paragraph (h) of this sec- Except in the case where you use the
tion, the FAA does not approve or dis- alternative goal approach of
approve the goal itself (i.e., the num- § 23.51(c)(5)(ii), the base for your goal is
ber). the total gross receipts of car rental
(h) If the FAA determines that your operations at your airport. You do not
goals have not been correctly cal- include gross receipts of other conces-
culated or the justification is inad- sions in this base.
equate, the FAA may, after consulting
with you, adjust your overall goal or § 23.51 How are a recipient’s overall
race-conscious/race-neutral ‘‘split.’’ goals expressed and calculated?
The adjusted goal represents the FAA’s (a) Your objective in setting a goal is
determination of an appropriate over- to estimate the percentage of the base
all goal for ACDBE participation in the calculated under §§ 23.47–23.49 that
recipient’s concession program, based would be performed by ACDBEs in the
on relevant data and analysis. The ad- absence of discrimination and its ef-
justed goal is binding on you. fects.
(i) If a new concession opportunity (1) This percentage is the estimated
the estimated average annual gross ACDBE participation that would occur
revenues of which are anticipated to be if there were a ‘‘level playing field’’ for
$200,000 or greater arises at a time that firms to work as concessionaires for
falls between normal submission dates your airport.
for overall goals, you must submit an (2) In conducting this goal setting
appropriate adjustment to your overall process, you are determining the ex-
goal to the FAA for approval at least tent, if any, to which the firms in your
212
market area have suffered discrimina- form work in the same NAICS codes.
tion or its effects in connection with (Information about the CBP data base
concession opportunities or related may be obtained from the Census Bu-
business opportunities. reau at their Web site, http://
(3) You must complete the goal-set- www.census.gov/epcd/cbp/view/
ting process separately for each of the cbpview.html.) Divide the number of
two overall goals identified in § 23.41 of ACDBEs by the number of all busi-
this part. nesses to derive a base figure for the
(b)(1) Each overall concessions goal relative availability of ACDBEs in your
must be based on demonstrable evi- market area.
dence of the availability of ready, will- (2) Use an Active Participants List. De-
ing and able ACDBEs relative to all termine the number of ACDBEs that
businesses ready, willing and able to
have participated or attempted to par-
participate in your ACDBE program
ticipate in your airport concessions
(hereafter, the ‘‘relative availability of
program in previous years. Determine
ACDBEs’’).
(2) You cannot simply rely on the 10 the number of all businesses that have
percent national aspirational goal, participated or attempted to partici-
your previous overall goal, or past pate in your airport concession pro-
ACDBE participation rates in your program in previous years. Divide the
gram without reference to the relative number of ACDBEs who have partici-
availability of ACDBEs in your mar- pated or attempted to participate by
ket. the number for all businesses to derive
(3) Your market area is defined by a base figure for the relative avail-
the geographical area in which the sub- ability of ACDBEs in your market
stantial majority of firms which seek area.
to do concessions business with the air- (3) Use data from a disparity study. Use
port are located and the geographical a percentage figure derived from data
area in which the firms which receive in a valid, applicable disparity study.
the substantial majority of conces- (4) Use the goal of another recipient. If
sions-related revenues are located. another airport or other DOT recipient
Your market area may be different for in the same, or substantially similar,
different types of concessions. market has set an overall goal in com-
(c) Step 1. You must begin your goal pliance with this rule, you may use
setting process by determining a base that goal as a base figure for your goal.
figure for the relative availability of (5) Alternative methods. (i) You may
ACDBEs. The following are examples of use other methods to determine a base
approaches that you may take toward figure for your overall goal. Any meth-
determining a base figure. These exam-
odology you choose must be based on
ples are provided as a starting point for
demonstrable evidence of local market
your goal setting process. Any percent-
conditions and be designed to ulti-
age figure derived from one of these ex-
amples should be considered a basis mately attain a goal that is rationally
from which you begin when examining related to the relative availability of
the evidence available to you. These ACDBEs in your market area.
examples are not intended as an ex- (ii) In the case of a car rental goal,
haustive list. Other methods or com- where it appears that all or most of the
binations of methods to determine a goal is likely to be met through the
base figure may be used, subject to ap- purchases by car rental companies of
proval by the FAA. vehicles or other goods or services from
(1) Use DBE Directories and Census Bu- ACDBEs, one permissible alternative is
reau Data. Determine the number of to structure the goal entirely in terms
ready, willing and able ACDBEs in of purchases of goods and services. In
your market area from your ACDBE di- this case, you would calculate your car
rectory. Using the Census Bureau’s rental overall goal by dividing the esti-
County Business Pattern (CBP) data mated dollar value of such purchases
base, determine the number of all from ACDBEs by the total estimated
ready, willing and able businesses dollar value of all purchases to be made
available in your market area that per- by car rental companies.
213
(d) Step 2. Once you have calculated a dence in your jurisdiction and an ex-
base figure, you must examine all rel- planation of how you used that evi-
evant evidence reasonably available in dence to adjust your base figure. You
your jurisdiction to determine what must also include your projection of
adjustment, if any, is needed to the the portions of the overall goal you ex-
base figure in order to arrive at your pect to meet through race-neutral and
overall goal. race-conscious measures, respectively
(1) There are many types of evidence (see §§ 26.51(c)).
that must be considered when adjust- (e) You are not required to obtain
ing the base figure. These include, but prior FAA concurrence with your over-
are not limited to: all goal (i.e., with the number itself).
(i) The current capacity of ACDBEs However, if the FAA’s review suggests
to perform work in your concessions that your overall goal has not been
program, as measured by the volume of correctly calculated, or that your
work ACDBEs have performed in re- method for calculating goals is inad-
cent years; and equate, the FAA may, after consulting
(ii) Evidence from disparity studies with you, adjust your overall goal or
conducted anywhere within your juris- require that you do so. The adjusted
diction, to the extent it is not already overall goal is binding on you.
accounted for in your base figure. (f) If you need additional time to col-
(2) If your base figure is the goal of lect data or take other steps to develop
another recipient, you must adjust it an approach to setting overall goals,
for differences in your market area and you may request the approval of the
your concessions program. FAA Administrator for an interim goal
(3) If available, you must consider and/or goal-setting mechanism. Such a
evidence from related fields that affect mechanism must:
the opportunities for ACDBEs to form, (1) Reflect the relative availability of
grow and compete. These include, but ACDBEs in your local market area to
are not limited to: the maximum extent feasible given the
(i) Statistical disparities in the abil- data available to you; and
ity of ACDBEs to get the financing, (2) Avoid imposing undue burdens on
bonding and insurance required to par- non-ACDBEs.
ticipate in your program;
(ii) Data on employment, self-em- § 23.53 How do car rental companies
ployment, education, training and count ACDBE participation toward
union apprenticeship programs, to the their goals?
extent you can relate it to the opportu- (a) As a car rental company, you
nities for ACDBEs to perform in your may, in meeting the goal the airport
program. has set for you, include purchases or
(4) If you attempt to make an adjust- leases of vehicles from any vendor that
ment to your base figure to account for is a certified ACDBE.
the continuing effects of past discrimi- (b) As a car rental company, if you
nation, or the effects of an ongoing choose to meet the goal the airport has
ACDBE program, the adjustment must set for you by including purchases or
be based on demonstrable evidence that leases of vehicles from an ACDBE ven-
is logically and directly related to the dor, you must also submit to the re-
effect for which the adjustment is cipient documentation of the good
sought. faith efforts you have made to obtain
(5) Among the information you sub- ACDBE participation from other
mit with your overall goal (see 23.45(e)), ACDBE providers of goods and services.
you must include description of the (c) While this part does not require
methodology you used to establish the you to obtain ACDBE participation
goal, including your base figure and through direct ownership arrange-
the evidence with which it was cal- ments, you may count such participa-
culated, as well as the adjustments you tion toward the goal the airport has set
made to the base figure and the evi- for you.
dence relied on for the adjustments. (d) The following special rules apply
You should also include a summary to counting participation related to car
listing of the relevant available evi- rental operations:
214
(1) Count the entire amount of the into a subconcession agreement or sub-
cost charged by an ACDBE for repair- contract with a non-ACDBE, do not
ing vehicles, provided that it is reason- count any of the gross receipts earned
able and not excessive as compared by the non-ACDBE.
with fees customarily allowed for simi- (c) When an ACDBE performs as a
lar services. subconcessionaire or subcontractor for
(2) Count the entire amount of the a non-ACDBE, count only the portion
fee or commission charged by a ACDBE of the gross receipts earned by the
to manage a car rental concession ACDBE under its subagreement.
under an agreement with the conces- (d) When an ACDBE performs as a
sionaire toward ACDBE goals, provided participant in a joint venture, count a
that it is reasonable and not excessive portion of the gross receipts equal to
as compared with fees customarily al- the distinct, clearly defined portion of
lowed for similar services.
the work of the concession that the
(3) Do not count any portion of a fee
ACDBE performs with its own forces
paid by a manufacturer to a car dealer-
toward ACDBE goals.
ship for reimbursement of work per-
formed under the manufacturer’s war- (e) Count the entire amount of fees or
ranty. commissions charged by an ACDBE
(e) For other goods and services, firm for a bona fide service, provided
count participation toward ACDBE that, as the recipient, you determine
goals as provided in part 26, § 26.55 and this amount to be reasonable and not
§ 23.55 of this part. In the event of any excessive as compared with fees cus-
conflict between these two sections, tomarily allowed for similar services.
§ 23.55 controls. Such services may include, but are not
(f) If you have a national or regional limited to, professional, technical, con-
contract, count a pro-rated share of the sultant, legal, security systems, adver-
amount of that contract toward the tising, building cleaning and mainte-
goals of each airport covered by the nance, computer programming, or
contract. Use the proportion of your managerial.
applicable gross receipts as the basis (f) Count 100 percent of the cost of
for making this pro-rated assignment goods obtained from an ACDBE manu-
of ACDBE participation. facturer. For purposes of this part, the
Example to paragraph (f): Car Rental Com-
term manufacturer has the same mean-
pany X signs a regional contract with an ing as in part 26, § 26.55(e)(1)(ii).
ACDBE car dealer to supply cars to all five (g) Count 100 percent of the cost of
airports in a state. The five airports each ac- goods purchased or leased from a
count for 20 percent of X’s gross receipts in ACDBE regular dealer. For purposes of
the state. Twenty percent of the value of the this part, the term ‘‘regular dealer’’
cars purchased through the ACDBE car deal- has the same meaning as in part 26,
er would count toward the goal of each air-
§ 26.55(e)(2)(ii).
port.
(h) Count credit toward ACDBE goals
§ 23.55 How do recipients count for goods purchased from an ACDBE
ACDBE participation toward goals which is neither a manufacturer nor a
for items other than car rentals? regular dealer as follows:
(a) You count only ACDBE participa- (1) Count the entire amount of fees or
tion that results from a commercially commissions charged for assistance in
useful function. For purposes of this the procurement of the goods, provided
part, the term commercially useful that this amount is reasonable and not
function has the same meaning as in excessive as compared with fees cus-
part 26, § 26.55(c), except that the re- tomarily allowed for similar services.
quirements of § 26.55(c)(3) do not apply Do not count any portion of the cost of
to concessions. the goods themselves.
(b) Count the total dollar value of (2) Count the entire amount of fees or
gross receipts an ACDBE earns under a transportation charges for the delivery
concession agreement and the total of goods required for a concession, pro-
dollar value of a management contract vided that this amount is reasonable
or subcontract with an ACDBE toward and not excessive as compared with
the goal. However, if the ACDBE enters fees customarily allowed for similar
215
services. Do not count any portion of § 23.59 What is the role of the statu-
the cost of goods themselves. tory 10 percent goal in the ACDBE
(i) If a firm has not been certified as program?
an ACDBE in accordance with the (a) The statute authorizing the
standards in this part, do not count the ACDBE program provides that, except
firm’s participation toward ACDBE to the extent the Secretary determines
goals. otherwise, not less than 10 percent of
(j) Do not count the work performed concession businesses are to be
or gross receipts earned by a firm after ACDBEs.
its eligibility has been removed toward (b) This 10 percent goal is an aspira-
ACDBE goals. However, if an ACDBE tional goal at the national level, which
firm certified on April 21, 2005 is decer- the Department uses as a tool in evalu-
tified because one or more of its dis- ating and monitoring DBEs’ opportuni-
advantaged owners do not meet the ties to participate in airport conces-
personal net worth criterion or the sions.
(c) The national 10 percent aspira-
firm exceeds business size standards of
tional goal does not authorize or re-
this part during the performance of a
quire recipients to set overall or con-
contract or other agreement, the firm’s
cession-specific goals at the 10 percent
participation may continue to be
level, or any other particular level, or
counted toward ACDBE goals for the to take any special administrative
remainder of the term of the contract steps if their goals are above or below
or other agreement (but not extensions 10 percent.
or renewals of such contracts or agree-
ments). § 23.61 Can recipients use quotas or
(k) Do not count costs incurred in set-asides as part of their ACDBE
connection with the renovation, repair, programs?
or construction of a concession facility You must not use quotas or set-
(sometimes referred to as the ‘‘build- asides for ACDBE participation in your
out’’). program.
(l) Do not count the ACDBE partici-
pation of car rental companies toward Subpart E—Other Provisions
your ACDBE achievements toward this
goal. § 23.71 Does a recipient have to change
existing concession agreements?
§ 23.57 What happens if a recipient Nothing in this part requires you to
falls short of meeting its overall modify or abrogate an existing conces-
goals? sion agreement (one executed before
(a) You cannot be penalized, or treat- April 21, 2005) during its term. When an
ed by the Department as being in non- extension or option to renew such an
compliance with this part, simply be- agreement is exercised, or when a ma-
cause your ACDBE participation falls terial amendment is made, you must
short of your overall goals. You can be assess potential for ACDBE participa-
penalized or treated as being in non- tion and may, if permitted by the
compliance only if you have failed to agreement, use any means authorized
by this part to obtain a modified
administer your ACDBE program in
amount of ACDBE participation in the
good faith.
renewed or amended agreement.
(b) If your ACDBE participation falls
short of your overall goals, FAA may § 23.73 What requirements apply to
require you to submit to the FAA a privately-owned or leased terminal
statement of the reasons why you were buildings?
unable to meet it and the steps you are (a) If you are a recipient who is re-
taking to meet your overall goals or to quired to implement an ACDBE pro-
adjust them based on changed cir- gram on whose airport there is a pri-
cumstances. vately-owned or leased terminal build-
(c) In response to your submission, ing that has concessions, or any por-
FAA may require you to implement ap- tion of such a building, this section ap-
propriate remedial measures, plies to you.
216
(b) You must pass through the appli- sionaires throughout the term of the
cable requirements of this part to the agreement and account for at a per-
private terminal owner or lessee via centage of the estimated annual gross
your agreement with the owner or les- receipts equivalent to a level set in ac-
see or by other means. You must en- cordance with §§ 23.47 through 23.49 of
sure that the terminal owner or lessee this part.
complies with the requirements of this (ii) You will review the extent of
part. ACDBE participation before the exer-
(c) If your airport is a primary air- cise of each renewal option to consider
port, you must obtain from the ter- whether an increase or decrease in
minal owner or lessee the goals and ACDBE participation is warranted.
other elements of the ACDBE program (iii) An ACDBE concessionaire that is
required under this part. You must in- unable to perform successfully will be
corporate this information into your replaced by another ACDBE conces-
concession plan and submit it to the sionaire, if the remaining term of the
FAA in accordance with this part. agreement makes this feasible. In the
(d) If the terminal building is at a event that such action is not feasible,
non-primary commercial service air- you will require the concessionaire to
port or general aviation airport or re- make good faith efforts during the re-
liever airport, you must ensure that maining term of the agreement to en-
the owner complies with the require- courage ACDBEs to compete for the
ments in § 23.21(e). purchases and/or leases of goods and
services to be made by the conces-
§ 23.75 Can recipients enter into long- sionaire.
term, exclusive agreements with (3) Assurances that any ACDBE par-
concessionaires? ticipant will be in an acceptable form,
(a) Except as provided in paragraph such as a sublease, joint venture, or
(b) of this section, you must not enter partnership.
into long-term, exclusive agreements (4) Documentation that ACDBE par-
for concessions. For purposes of this ticipants are properly certified.
section, a long-term agreement is one (5) A description of the type of busi-
having a term longer than five years. ness or businesses to be operated (e.g.,
(b) You may enter into a long-term, location, storage and delivery space,
exclusive concession agreement only ‘‘back-of-the-house facilities’’ such as
under the following conditions: kitchens, window display space, adver-
(1) Special local circumstances exist tising space, and other amenities that
that make it important to enter such will increase the ACDBE’s chance to
agreement, and succeed).
(2) The responsible FAA regional of- (6) Information on the investment re-
fice approves your plan for meeting the quired on the part of the ACDBE and
standards of paragraph (c) of this sec- any unusual management or financial
tion. arrangements between the prime con-
(c) In order to obtain FAA approval cessionaire and ACDBE.
of a long-term-exclusive concession (7) Information on the estimated
agreement, you must submit the fol- gross receipts and net profit to be
lowing information to the FAA re- earned by the ACDBE.
gional office:
(1) A description of the special local § 23.77 Does this part preempt local re-
circumstances that warrant a long- quirements?
term, exclusive agreement. (a) In the event that a State or local
(2) A copy of the draft and final leas- law, regulation, or policy differs from
ing and subleasing or other agree- the requirements of this part, the re-
ments. This long-term, exclusive agree- cipient must, as a condition of remain-
ment must provide that: ing eligible to receive Federal financial
(i) A number of ACDBEs that reason- assistance from the DOT, take such
ably reflects their availability in your steps as may be necessary to comply
market area, in the absence of dis- with the requirements of this part.
crimination, to do the types of work (b) You must clearly identify any
required will participate as conces- State or local law, regulation, or policy
217
pertaining to minority, women’s, or 3b. Provide the date on which the report is
disadvantaged business enterprise con- submitted to FAA.
cerning airport concessions that adds 4. This block and blocks 5 and 6 concern
non-car rental goals and participation only.
to, goes beyond, or imposes more strin- In this block, provide the overall non-car
gent requirements than the provisions rental percentage goal and the race-con-
of this part. FAA will determine scious (RC) and race-neutral (RN) compo-
whether such a law, regulation, or pol- nents of it. The RC and RN percentages
icy conflicts with this part, in which should add up to the overall percentage goal.
case the requirements of this part will 5. For purposes of this block and blocks 6,
govern. 8, and 9, the participation categories listed
at the left of the block are the following:
(c) If not deemed in conflict by the ‘‘Prime Concessions’’ are concessions who
FAA, you must write and administer have a direct relationship with the airport
such a State or local law, policy, or (e.g., a company who has a lease agreement
regulation separately from the ACDBE directly with the airport to operate a conces-
program. sion). A ‘‘subconcession’’ is a firm that has a
(d) You must provide copies of any sublease or other agreement with a prime
concessionaire, rather than with the airport
such provisions and the legal authority
itself, to operate a concession at the airport.
supporting them to the FAA with your A ‘‘management contract’’ is an agreement
ACDBE program submission. FAA will between the airport and a firm to manage a
not approve an ACDBE program if portion of the airport’s facilities or oper-
there are such provisions that conflict ations (e.g., manage the parking facilities).
with the provisions of this part. ‘‘Goods/services’’ refers to those goods and
(e) However, nothing in this part pre- services purchased by the airport itself or by
concessionaires and management contrac-
empts any State or local law, regula- tors from certified DBEs.
tion, or policy enacted by the gov- Block 5 concerns all non-car rental conces-
erning body of a recipient, or the au- sion activity covered by 49 CFR part 23 dur-
thority of any State or local governing the reporting period, both new or con-
ment or recipient to adopt or enforce tinuing.
any law, regulation, or policy relating In Column A, enter the total concession
to ACDBEs, as long as the law, regula- gross revenues for concessionaires (prime
and sub) and purchases of goods and services
tion, or policy does not conflict with (ACDBE and non-ACDBE combined) at the
this part. airport. In Column B, enter the number of
lease agreements, contracts, etc. in effect or
§ 23.79 Does this part permit recipi- taking place during the reporting period in
ents to use local geographic pref- each participation category for all conces-
erences? sionaires and purchases of goods and services
No. As a recipient you must not use (ACDBE and non-ACDBE combined).
a local geographic preference. For pur- Because, by statute, non-ACDBE manage-
ment contracts do not count as part of the
poses of this section, a local geographic base for ACDBE goals, the cells for total
preference is any requirement that management contract participation and
gives an ACDBE located in one place ACDBE participation as a percentage of
(e.g., your local area) an advantage total management contracting dollars are
over ACDBEs from other places in ob- not intended to be filled in blocks 5, 6, 8, and
taining business as, or with, a conces- 9.
sion at your airport. In Column C, enter the total gross reve-
nues in each participation category
APPENDIX A TO PART 23—UNIFORM (ACDBEs) only. In Column D, enter the num-
ber of lease agreements, contracts, etc., in
REPORT OF ACDBE PARTICIPATION effect or entered into during the reporting
INSTRUCTIONS FOR UNIFORM REPORT OF period in each participation category for all
ACDBE PARTICIPATION concessionaires and purchases of goods and
services (ACDBEs only).
1. Insert name of airport receiving FAA fi- Columns E and F are subsets of Column C:
nancial assistance and AIP number. break out the total gross revenues listed in
2. Provide the name and contact informa- Column C into the portions that are attrib-
tion (phone, fax, e-mail) for the person FAA utable to race-conscious and race-neutral
should contact with questions about the re- measures, respectively. Column G is a per-
port. centage calculation. It answers the question,
3a. Provide the annual reporting period to what percentage of the numbers in Column A
which the report pertains (e.g., October 2005– is represented by the corresponding numbers
September 2006). in Column C?
218
6. The numbers in this Block concern only women-owned firms should be listed in the
new non-car rental concession opportunities ‘‘non-minority women’’ column. Participa-
that arose during the current reporting pe- tion by firms owned by minority women
riod. In other words, the information re- should be listed in the appropriate minority
quested in Block 6 is a subset of that re- group column. The ‘‘other’’ column should be
quested in Block 5. Otherwise, this Block is used to reflect participation by individuals
filled out in the same way as Block 5. who are not a member of a presumptively
7. Blocks 7–9 concern car rental goals and disadvantaged group who have been found
participation. In Block 7, provide the overall disadvantaged on a case-by-case basis.
car rental percentage goal and the race-con- 11. This block instructs recipients to at-
scious (RC) and race-neutral (RN) compo- tach five information items for each ACDBE
nents of it. The RC and RN percentages firm participating in its program during the
should add up to the overall percentage goal. reporting period. If the firm’s participation
8. Block 8 is parallel to Block 5, except numbers are reflected in Blocks 5–6 and/or 8–
that it is for car rentals. The instructions for 9, the requested information about that firm
filling it out are the same as for Block 5. should be attached in response to this item.
9. Block 9 is parallel to Block 6, except
that it is for car rentals. The information re- UNIFORM REPORT OF ACDBE PARTICIPATION
quested in Block 9 is a subset of that re-
quested in Block 8. The instructions for fill- 1. Name of Recipient and AIP Number:
ing it out are the same as for Block 6. 2. Contact Information:
10. Block 10 instructs recipients to bring 3a. Reporting Period:
forward the cumulative ACDBE participa- 3b. Date of Report:
tion figures from Blocks 5 and 8, breaking 4. Current Non-Car Rental ACDBE Goal:
down these figures by race and gender cat- Race Conscious Goal ll% Race Neutral
egories. Participation by non-minority Goal ll% Overall Goal ll%
5. Non-car rental A B C D E F G
Cumulative ACDBE participation Total Total Total to Total to RC to RN to % of
dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
(everyone) (everyone) (dollars) (number) (dollars) (dollars) ACDBEs
Prime Concessions.
Subconcessions.
Management Contracts ............... XXXXXXX XXXXXXX .................. .................. .................. .................. XXXXXX
Goods/Services.
Totals.
6. Non-Car rental A B C D E F G
New ACDBE participation Total Total Total to Total to RC to RN to % of
this period dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
Prime Concessions.
Subconcessions.
Management Contracts ............... XXXXXXX XXXXXXX .................. .................. .................. XXXXXX ..................
Goods/Services.
Totals.
7. Current Car Rental ACDBE Goal: Race

Conscious Goal ll% Race Neutral Goal
ll% Overall Goal ll%
8. Car rental A B C D E F G
Cumulative ACDBE participation Total Total Total to Total to RC to RN to % of
dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
Prime Concessions.
Subconcessions.
Goods/Services.
Totals.
New ACDBE participation this Total Total Total to Total to RC to RN to % of
period dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
Prime Concessions.
Subconcessions.
219
New ACDBE participation this Total Total Total to Total to RC to RN to % of
period dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
Goods/Services.
Totals.
10. Cumulative A B C D E F G H
ACDBE participa- Black Hispanic Asian-Pa- Asian-In- Native Non-minor- Other Totals
tion by race/gender Americans Americans cific Ameri- dian Amer- Americans ity Women
cans icans
Car Rental.
Non-Car Rental.
Totals.
11. On an attachment, list the following in- Subpart C—General Relocation

formation for each ACDBE firm partici- Requirements
pating in your program during the period of
this report: (1) Firm name; (2) Type of busi- 24.201 Purpose.
ness; (3) Beginning and expiration dates of 24.202 Applicability.
agreement, including options to renew; (4) 24.203 Relocation notices.
Dates that material amendments have been 24.204 Availability of comparable replace-
or will be made to agreement (if known); (5) ment dwelling before displacement.
Estimated gross receipts for the firm during 24.205 Relocation planning, advisory serv-
this reporting period. ices, and coordination.
24.206 Eviction for cause.
24.207 General requirements claims for relo-
PART 24—UNIFORM RELOCATION cation payments.
ASSISTANCE AND REAL PROP- 24.208 Aliens not lawfully present in the
ERTY ACQUISITION FOR FEDERAL United States.
AND FEDERALLY-ASSISTED PRO- 24.209 Relocation payments not considered
as income.
GRAMS
Subpart D—Payments for Moving and
Subpart A—General Related Expenses
Sec. 24.301 Payment for actual reasonable mov-
24.1 Purpose. ing and related expenses.
24.2 Definitions and acronyms. 24.302 Fixed payment for moving
24.3 No duplication of payments. expenses’residential moves.
24.4 Assurances, monitoring and corrective 24.303 Related nonresidential eligible ex-
action. penses.
24.5 Manner of notices. 24.304 Reestablishment
24.6 Administration of jointly-funded expenses’nonresidential moves.
projects. 24.305 Fixed payment for moving
24.7 Federal Agency waiver of regulations. expenses’nonresidential moves.
24.8 Compliance with other laws and regula- 24.306 Discretionary utility relocation pay-
tions. ments.
24.9 Recordkeeping and reports.
24.10 Appeals. Subpart E—Replacement Housing
Payments
Subpart B—Real Property Acquisition 24.401 Replacement housing payment for
24.101 Applicability of acquisition require- 180-day homeowner-occupants.
ments. 24.402 Replacement housing payment for 90-
24.102 Basic acquisition policies. day occupants.
24.103 Criteria for appraisals. 24.403 Additional rules governing replace-
ment housing payments.
24.104 Review of appraisals.
24.404 Replacement housing of last resort.
24.105 Acquisition of tenant-owned improve-
ments.
Subpart F—Mobile Homes
24.106 Expenses incidental to transfer of
title to the Agency. 24.501 Applicability.
24.107 Certain litigation expenses. 24.502 Replacement housing payment for
24.108 Donations. 180-day mobile homeowner displaced
220
from a mobile home, and/or from the ac- (i) Acquiring Agency. The term acquir-
quired mobile home site. ing Agency means a State Agency, as
24.503 Replacement housing payment for 90-
defined in paragraph (a)(1)(iv) of this
day mobile home occupants.
section, which has the authority to ac-
Subpart G—Certification quire property by eminent domain
under State law, and a State Agency or
24.601 Purpose. person which does not have such au-
24.602 Certification application.
24.603 Monitoring and corrective action. thority.
APPENDIX A TO PART 24—ADDITIONAL INFOR- (ii) Displacing Agency. The term dis-
MATION placing Agency means any Federal
APPENDIX B TO PART 24—STATISTICAL REPORT Agency carrying out a program or
FORM project, and any State, State Agency,
AUTHORITY: 42 U.S.C. 4601 et seq.; 49 CFR or person carrying out a program or
1.48(cc). project with Federal financial assist-
SOURCE: 70 FR 611, Jan. 4, 2005, unless oth- ance, which causes a person to be a dis-
erwise noted. placed person.
(iii) Federal Agency. The term Federal
Subpart A—General Agency means any department, Agency,
or instrumentality in the executive
§ 24.1 Purpose. branch of the government, any wholly
The purpose of this part is to promul- owned government corporation, the Ar-
gate rules to implement the Uniform chitect of the Capitol, the Federal Re-
Relocation Assistance and Real Prop- serve Banks and branches thereof, and
erty Acquisition Policies Act of 1970, as any person who has the authority to
amended (42 U.S.C. 4601 et seq.) (Uni- acquire property by eminent domain
form Act), in accordance with the fol- under Federal law.
lowing objectives: (iv) State Agency. The term State
(a) To ensure that owners of real Agency means any department, Agency
property to be acquired for Federal and or instrumentality of a State or of a
federally-assisted projects are treated political subdivision of a State, any de-
fairly and consistently, to encourage partment, Agency, or instrumentality
and expedite acquisition by agreements of two or more States or of two or
with such owners, to minimize litiga- more political subdivisions of a State
tion and relieve congestion in the or States, and any person who has the
courts, and to promote public con- authority to acquire property by emi-
fidence in Federal and federally-as- nent domain under State law.
sisted land acquisition programs;
(2) Alien not lawfully present in the
(b) To ensure that persons displaced
United States. The phrase ‘‘alien not
as a direct result of Federal or feder-
lawfully present in the United States’’
ally-assisted projects are treated fair-
ly, consistently, and equitably so that means an alien who is not ‘‘lawfully
such displaced persons will not suffer present’’ in the United States as de-
disproportionate injuries as a result of fined in 8 CFR 103.12 and includes:
projects designed for the benefit of the (i) An alien present in the United
public as a whole; and States who has not been admitted or
(c) To ensure that Agencies imple- paroled into the United States pursu-
ment these regulations in a manner ant to the Immigration and Nation-
that is efficient and cost effective. ality Act (8 U.S.C. 1101 et seq.) and
whose stay in the United States has
§ 24.2 Definitions and acronyms. not been authorized by the United
(a) Definitions. Unless otherwise States Attorney General; and,
noted, the following terms used in this (ii) An alien who is present in the
part shall be understood as defined in United States after the expiration of
this section: the period of stay authorized by the
(1) Agency. The term Agency means United States Attorney General or who
the Federal Agency, State, State Agen- otherwise violates the terms and condi-
cy, or person that acquires real prop- tions of admission, parole or authoriza-
erty or displaces a person. tion to stay in the United States.
221
(3) Appraisal. The term appraisal (iii) Adequate in size to accommo-

means a written statement independ- date the occupants;
ently and impartially prepared by a (iv) In an area not subject to unrea-
qualified appraiser setting forth an sonable adverse environmental condi-
opinion of defined value of an ade- tions;
quately described property as of a spe- (v) In a location generally not less
cific date, supported by the presen- desirable than the location of the dis-
tation and analysis of relevant market placed person’s dwelling with respect
information. to public utilities and commercial and
(4) Business. The term business means public facilities, and reasonably acces-
any lawful activity, except a farm op- sible to the person’s place of employ-
eration, that is conducted: ment;
(i) Primarily for the purchase, sale, (vi) On a site that is typical in size
lease and/or rental of personal and/or for residential development with nor-
real property, and/or for the manufac- mal site improvements, including cus-
ture, processing, and/or marketing of tomary landscaping. The site need not
products, commodities, and/or any include special improvements such as
other personal property; outbuildings, swimming pools, or
(ii) Primarily for the sale of services greenhouses. (See also § 24.403(a)(2));
(vii) Currently available to the dis-
to the public;
placed person on the private market
(iii) Primarily for outdoor adver-
except as provided in paragraph
tising display purposes, when the dis-
(a)(6)(ix) of this section (See appendix
play must be moved as a result of the
A, § 24.2(a)(6)(vii)); and
project; or
(viii) Within the financial means of
(iv) By a nonprofit organization that the displaced person:
has established its nonprofit status (A) A replacement dwelling pur-
under applicable Federal or State law. chased by a homeowner in occupancy
(5) Citizen. The term citizen for pur- at the displacement dwelling for at
poses of this part includes both citizens least 180 days prior to initiation of ne-
of the United States and noncitizen na- gotiations (180-day homeowner) is con-
tionals. sidered to be within the homeowner’s
(6) Comparable replacement dwelling. financial means if the homeowner will
The term comparable replacement dwell- receive the full price differential as de-
ing means a dwelling which is: scribed in § 24.401(c), all increased
(i) Decent, safe and sanitary as de- mortgage interest costs as described at
scribed in paragraph 24.2(a)(8) of this § 24.401(d) and all incidental expenses as
section; described at § 24.401(e), plus any addi-
(ii) Functionally equivalent to the tional amount required to be paid
displacement dwelling. The term func- under § 24.404, Replacement housing of
tionally equivalent means that it per- last resort.
forms the same function, and provides (B) A replacement dwelling rented by
the same utility. While a comparable an eligible displaced person is consid-
replacement dwelling need not possess ered to be within his or her financial
every feature of the displacement means if, after receiving rental assist-
dwelling, the principal features must ance under this part, the person’s
be present. Generally, functional monthly rent and estimated average
equivalency is an objective standard, monthly utility costs for the replace-
reflecting the range of purposes for ment dwelling do not exceed the per-
which the various physical features of son’s base monthly rental for the dis-
a dwelling may be used. However, in placement dwelling as described at
determining whether a replacement § 24.402(b)(2).
dwelling is functionally equivalent to (C) For a displaced person who is not
the displacement dwelling, the Agency eligible to receive a replacement hous-
may consider reasonable trade-offs for ing payment because of the person’s
specific features when the replacement failure to meet length-of-occupancy re-
unit is equal to or better than the dis- quirements, comparable replacement
placement dwelling (See appendix A, rental housing is considered to be with-
§ 24.2(a)(6)); in the person’s financial means if an
222
Agency pays that portion of the displaced person. The number of per-
monthly housing costs of a replace- sons occupying each habitable room
ment dwelling which exceeds the per- used for sleeping purposes shall not ex-
son’s base monthly rent for the dis- ceed that permitted by local housing
placement dwelling as described in codes or, in the absence of local codes,
§ 24.402(b)(2). Such rental assistance the policies of the displacing Agency.
must be paid under § 24.404, Replace- In addition, the displacing Agency
ment housing of last resort. shall follow the requirements for sepa-
(ix) For a person receiving govern- rate bedrooms for children of the oppo-
ment housing assistance before dis- site gender included in local housing
placement, a dwelling that may reflect codes or in the absence of local codes,
similar government housing assistance. the policies of such Agencies;
In such cases any requirements of the (v) There shall be a separate, well
government housing assistance pro- lighted and ventilated bathroom that
gram relating to the size of the re- provides privacy to the user and con-
placement dwelling shall apply. (See tains a sink, bathtub or shower stall,
appendix A, § 24.2(a)(6)(ix).) and a toilet, all in good working order
(7) Contribute materially. The term and properly connected to appropriate
contribute materially means that during sources of water and to a sewage drain-
the 2 taxable years prior to the taxable age system. In the case of a house-
year in which displacement occurs, or keeping dwelling, there shall be a
during such other period as the Agency kitchen area that contains a fully usa-
determines to be more equitable, a ble sink, properly connected to potable
business or farm operation: hot and cold water and to a sewage
(i) Had average annual gross receipts drainage system, and adequate space
of at least $5,000; or and utility service connections for a
(ii) Had average annual net earnings stove and refrigerator;
of at least $1,000; or (vi) Contains unobstructed egress to
(iii) Contributed at least 331⁄3 percent safe, open space at ground level; and
of the owner’s or operator’s average an- (vii) For a displaced person with a
nual gross income from all sources. disability, be free of any barriers which
(iv) If the application of the above would preclude reasonable ingress,
criteria creates an inequity or hardship egress, or use of the dwelling by such
in any given case, the Agency may ap- displaced person. (See appendix A,
prove the use of other criteria as deter- § 24.2(a)(8)(vii).)
mined appropriate. (9) Displaced person. (i) General. The
(8) Decent, safe, and sanitary dwelling. term displaced person means, except as
The term decent, safe, and sanitary provided in paragraph (a)(9)(ii) of this
dwelling means a dwelling which meets section, any person who moves from
local housing and occupancy codes. the real property or moves his or her
However, any of the following stand- personal property from the real prop-
ards which are not met by the local erty. (This includes a person who occu-
code shall apply unless waived for good pies the real property prior to its ac-
cause by the Federal Agency funding quisition, but who does not meet the
the project. The dwelling shall: length of occupancy requirements of
(i) Be structurally sound, weather the Uniform Act as described at
tight, and in good repair; § 24.401(a) and § 24.402(a)):
(ii) Contain a safe electrical wiring (A) As a direct result of a written no-
system adequate for lighting and other tice of intent to acquire (see § 24.203(d)),
devices; the initiation of negotiations for, or
(iii) Contain a heating system capa- the acquisition of, such real property
ble of sustaining a healthful tempera- in whole or in part for a project;
ture (of approximately 70 degrees) for a (B) As a direct result of rehabilita-
displaced person, except in those areas tion or demolition for a project; or
where local climatic conditions do not (C) As a direct result of a written no-
require such a system; tice of intent to acquire, or the acquisi-
(iv) Be adequate in size with respect tion, rehabilitation or demolition of, in
to the number of rooms and area of liv- whole or in part, other real property on
ing space needed to accommodate the which the person conducts a business
223
or farm operation, for a project. How- tually satisfactory agreement on terms

ever, eligibility for such person under of the conveyance cannot be reached,
this paragraph applies only for pur- the Agency will not acquire the prop-
poses of obtaining relocation assist- erty. In such cases, however, any re-
ance advisory services under § 24.205(c), sulting displacement of a tenant is sub-
and moving expenses under § 24.301, ject to the regulations in this part;
§ 24.302 or § 24.303. (I) A person who retains the right of
(ii) Persons not displaced. The fol- use and occupancy of the real property
lowing is a nonexclusive listing of per- for life following its acquisition by the
sons who do not qualify as displaced Agency;
persons under this part: (J) An owner who retains the right of
(A) A person who moves before the use and occupancy of the real property
initiation of negotiations (see for a fixed term after its acquisition by
§ 24.403(d)), unless the Agency deter- the Department of the Interior under
mines that the person was displaced as Pub. L. 93–477, Appropriations for Na-
a direct result of the program or tional Park System, or Pub. L. 93–303,
project; Land and Water Conservation Fund,
(B) A person who initially enters into except that such owner remains a dis-
occupancy of the property after the placed person for purposes of subpart D
date of its acquisition for the project; of this part;
(C) A person who has occupied the
(K) A person who is determined to be
property for the purpose of obtaining
in unlawful occupancy prior to or after
assistance under the Uniform Act;
the initiation of negotiations, or a per-
(D) A person who is not required to
son who has been evicted for cause,
relocate permanently as a direct result
under applicable law, as provided for in
of a project. Such determination shall
§ 24.206. However, advisory assistance
be made by the Agency in accordance
may be provided to unlawful occupants
with any guidelines established by the
at the option of the Agency in order to
Federal Agency funding the project
facilitate the project;
(See appendix A, § 24.2(a)(9)(ii)(D));
(E) An owner-occupant who moves as (L) A person who is not lawfully
a result of an acquisition of real prop- present in the United States and who
erty as described in §§ 24.101(a)(2) or has been determined to be ineligible for
24.101(b)(1) or (2), or as a result of the relocation assistance in accordance
rehabilitation or demolition of the real with § 24.208; or
property. (However, the displacement (M) Tenants required to move as a re-
of a tenant as a direct result of any ac- sult of the sale of their dwelling to a
quisition, rehabilitation or demolition person using downpayment assistance
for a Federal or federally-assisted provided under the American Dream
project is subject to this part.); Downpayment Initiative (ADDI) au-
(F) A person whom the Agency deter- thorized by section 102 of the American
mines is not displaced as a direct result Dream Downpayment Act (Pub. L. 108–
of a partial acquisition; 186; codified at 42 U.S.C. 12821).
(G) A person who, after receiving a (10) Dwelling. The term dwelling
notice of relocation eligibility (de- means the place of permanent or cus-
scribed at § 24.203(b)), is notified in tomary and usual residence of a person,
writing that he or she will not be dis- according to local custom or law, in-
placed for a project. Such written noti- cluding a single family house; a single
fication shall not be issued unless the family unit in a two-family, multi-fam-
person has not moved and the Agency ily, or multi-purpose property; a unit
agrees to reimburse the person for any of a condominium or cooperative hous-
expenses incurred to satisfy any binding project; a non-housekeeping unit; a
ing contractual relocation obligations mobile home; or any other residential
entered into after the effective date of unit.
the notice of relocation eligibility; (11) Dwelling site. The term dwelling
(H) An owner-occupant who conveys site means a land area that is typical in
his or her property, as described in size for similar dwellings located in the
§§ 24.101(a)(2) or 24.101(b)(1) or (2), after same neighborhood or rural area. (See
being informed in writing that if a mu- appendix A, § 24.2(a)(11).)
224
(12) Farm operation. The term farm op- acquisition by a Federal Agency or a
eration means any activity conducted State Agency), the initiation of negotia-
solely or primarily for the production tions means the notice to the person
of one or more agricultural products or that he or she will be displaced by the
commodities, including timber, for sale project or, if there is no notice, the ac-
or home use, and customarily pro- tual move of the person from the prop-
ducing such products or commodities erty.
in sufficient quantity to be capable of (iii) In the case of a permanent relo-
contributing materially to the opera- cation to protect the public health and
tor’s support. welfare, under the Comprehensive En-
(13) Federal financial assistance. The vironmental Response Compensation
term Federal financial assistance means and Liability Act of 1980 (Pub. L. 96–
a grant, loan, or contribution provided 510, or Superfund) (CERCLA) the initi-
by the United States, except any Fed- ation of negotiations means the formal
eral guarantee or insurance and any in- announcement of such relocation or
terest reduction payment to an indi- the Federal or federally-coordinated
vidual in connection with the purchase health advisory where the Federal Gov-
and occupancy of a residence by that ernment later decides to conduct a per-
individual. manent relocation.
(14) Household income. The term (iv) In the case of permanent reloca-
household income means total gross in- tion of a tenant as a result of an acqui-
come received for a 12 month period sition of real property described in
from all sources (earned and unearned) § 24.101(b)(1) through (5), the initiation
including, but not limited to wages, of negotiations means the actions de-
salary, child support, alimony, unem- scribed in § 24.2(a)(15)(i) and (ii), except
ployment benefits, workers compensa- that such initiation of negotiations
tion, social security, or the net income does not become effective, for purposes
from a business. It does not include in- of establishing eligibility for reloca-
come received or earned by dependent tion assistance for such tenants under
children and full time students under this part, until there is a written
18 years of age. (See appendix A, agreement between the Agency and the
§ 24.2(a)(14) for examples of exclusions owner to purchase the real property.
to income.) (See appendix A, § 24.2(a)(15)(iv)).
(15) Initiation of negotiations. Unless a (16) Lead Agency. The term Lead
different action is specified in applica- Agency means the Department of
ble Federal program regulations, the Transportation acting through the
term initiation of negotiations means the Federal Highway Administration.
following: (17) Mobile home. The term mobile
(i) Whenever the displacement re- home includes manufactured homes and
sults from the acquisition of the real recreational vehicles used as resi-
property by a Federal Agency or State dences. (See appendix A, § 24.2(a)(17)).
Agency, the initiation of negotiations (18) Mortgage. The term mortgage
means the delivery of the initial writ- means such classes of liens as are com-
ten offer of just compensation by the monly given to secure advances on, or
Agency to the owner or the owner’s the unpaid purchase price of, real prop-
representative to purchase the real erty, under the laws of the State in
property for the project. However, if which the real property is located, to-
the Federal Agency or State Agency gether with the credit instruments, if
issues a notice of its intent to acquire any, secured thereby.
the real property, and a person moves (19) Nonprofit organization. The term
after that notice, but before delivery of nonprofit organization means an organi-
the initial written purchase offer, the zation that is incorporated under the
initiation of negotiations means the ac- applicable laws of a State as a non-
tual move of the person from the prop- profit organization, and exempt from
erty. paying Federal income taxes under sec-
(ii) Whenever the displacement is tion 501 of the Internal Revenue Code
caused by rehabilitation, demolition or (26 U.S.C. 501).
privately undertaken acquisition of the (20) Owner of a dwelling. The term
real property (and there is no related owner of a dwelling means a person who
225
is considered to have met the require- occupancy of real property owned by

ment to own a dwelling if the person another.
purchases or holds any of the following (27) Uneconomic remnant. The term
interests in real property: uneconomic remnant means a parcel of
(i) Fee title, a life estate, a land con- real property in which the owner is left
tract, a 99 year lease, or a lease includ- with an interest after the partial ac-
ing any options for extension with at quisition of the owner’s property, and
least 50 years to run from the date of which the Agency has determined has
acquisition; or little or no value or utility to the
(ii) An interest in a cooperative hous- owner.
ing project which includes the right to (28) Uniform Act. The term Uniform
occupy a dwelling; or Act means the Uniform Relocation As-
(iii) A contract to purchase any of sistance and Real Property Acquisition
the interests or estates described in Policies Act of 1970 (Pub. L. 91–646, 84
§ 24.2(a)(1)(i) or (ii) of this section; or Stat. 1894; 42 U.S.C. 4601 et seq.), and
amendments thereto.
(iv) Any other interest, including a
(29) Unlawful occupant. A person who
partial interest, which in the judgment
occupies without property right, title
of the Agency warrants consideration
or payment of rent or a person legally
as ownership.
evicted, with no legal rights to occupy
(21) Person. The term person means a property under State law. An Agency,
any individual, family, partnership, at its discretion, may consider such
corporation, or association. person to be in lawful occupancy.
(22) Program or project. The phrase (30) Utility costs. The term utility costs
program or project means any activity means expenses for electricity, gas,
or series of activities undertaken by a other heating and cooking fuels, water
Federal Agency or with Federal finan- and sewer.
cial assistance received or anticipated (31) Utility facility. The term utility fa-
in any phase of an undertaking in ac- cility means any electric, gas, water,
cordance with the Federal funding steam power, or materials trans-
Agency guidelines. mission or distribution system; any
(23) Salvage value. The term salvage transportation system; any commu-
value means the probable sale price of nications system, including cable tele-
an item offered for sale to knowledge- vision; and any fixtures, equipment, or
able buyers with the requirement that other property associated with the op-
it be removed from the property at a eration, maintenance, or repair of any
buyer’s expense (i.e., not eligible for re- such system. A utility facility may be
location assistance). This includes publicly, privately, or cooperatively
items for re-use as well as items with owned.
components that can be re-used or re- (32) Utility relocation. The term utility
cycled when there is no reasonable relocation means the adjustment of a
prospect for sale except on this basis. utility facility required by the program
(24) Small business. A small business is or project undertaken by the displacing
a business having not more than 500 Agency. It includes removing and re-
employees working at the site being installing the facility, including nec-
acquired or displaced by a program or essary temporary facilities; acquiring
project, which site is the location of necessary right-of-way on a new loca-
economic activity. Sites occupied sole- tion; moving, rearranging or changing
ly by outdoor advertising signs, dis- the type of existing facilities; and tak-
plays, or devices do not qualify as a ing any necessary safety and protective
business for purposes of § 24.304. measures. It shall also mean con-
(25) State. Any of the several States structing a replacement facility that
of the United States or the District of has the functional equivalency of the
Columbia, the Commonwealth of Puer- existing facility and is necessary for
to Rico, any territory or possession of the continued operation of the utility
the United States, or a political sub- service, the project economy, or se-
division of any of these jurisdictions. quence of project construction.
(26) Tenant. The term tenant means a (33) Waiver valuation. The term waiver
person who has the temporary use and valuation means the valuation process
226
used and the product produced when surances that it will comply with the
the Agency determines that an ap- Uniform Act and this part. A dis-
praisal is not required, pursuant to placing Agency’s assurances shall be in
§ 24.102(c)(2) appraisal waiver provi- accordance with section 210 of the Uni-
sions. form Act. An acquiring Agency’s assur-
(b) Acronyms. The following acronyms ances shall be in accordance with sec-
are commonly used in the implementation 305 of the Uniform Act and must
tion of programs subject to this regula- contain specific reference to any State
tion: law which the Agency believes provides
(1) BCIS. Bureau of Citizenship and an exception to §§ 301 or 302 of the Uni-
Immigration Service. form Act. If, in the judgment of the
(2) FEMA. Federal Emergency Man- Federal Agency, Uniform Act compli-
agement Agency. ance will be served, a State Agency
(3) FHA. Federal Housing Adminis- may provide these assurances at one
tration. time to cover all subsequent federally-
(4) FHWA. Federal Highway Adminis- assisted programs or projects. An
tration. Agency, which both acquires real prop-
(5) FIRREA. Financial Institutions erty and displaces persons, may com-
Reform, Recovery, and Enforcement bine its section 210 and section 305 as-
Act of 1989. surances in one document.
(6) HLR. Housing of last resort. (2) If a Federal Agency or State
(7) HUD. U.S. Department of Housing Agency provides Federal financial as-
and Urban Development. sistance to a ‘‘person’’ causing dis-
(8) MIDP. Mortgage interest differen- placement, such Federal or State Agen-
tial payment. cy is responsible for ensuring compli-
(9) RHP. Replacement housing pay-
ance with the requirements of this
ment.
part, notwithstanding the person’s con-
(10) STURAA. Surface Transpor-
tractual obligation to the grantee to
tation and Uniform Relocation Act
comply.
Amendments of 1987.
(11) URA. Uniform Relocation Assist- (3) As an alternative to the assurance
ance and Real Property Acquisition requirement described in paragraph
Policies Act of 1970. (a)(1) of this section, a Federal Agency
(12) USDOT. U.S. Department of may provide Federal financial assist-
Transportation. ance to a State Agency after it has ac-
(13) USPAP. Uniform Standards of cepted a certification by such State
Professional Appraisal Practice. Agency in accordance with the require-
ments in subpart G of this part.
§ 24.3 No duplication of payments. (b) Monitoring and corrective action.
No person shall receive any payment The Federal Agency will monitor com-
under this part if that person receives pliance with this part, and the State
a payment under Federal, State, local Agency shall take whatever corrective
law, or insurance proceeds which is de- action is necessary to comply with the
termined by the Agency to have the Uniform Act and this part. The Federal
same purpose and effect as such pay- Agency may also apply sanctions in ac-
ment under this part. (See appendix A, cordance with applicable program reg-
§ 24.3). ulations. (Also see § 24.603, of this part).
(c) Prevention of fraud, waste, and mis-
§ 24.4 Assurances, monitoring and cor- management. The Agency shall take ap-
rective action. propriate measures to carry out this
(a) Assurances. (1) Before a Federal part in a manner that minimizes fraud,
Agency may approve any grant to, or waste, and mismanagement.
contract, or agreement with, a State
Agency under which Federal financial § 24.5 Manner of notices.
assistance will be made available for a Each notice which the Agency is re-
project which results in real property quired to provide to a property owner
acquisition or displacement that is or occupant under this part, except the
subject to the Uniform Act, the State notice described at § 24.102(b), shall be
Agency must provide appropriate as- personally served or sent by certified
227
or registered first-class mail, return re- § 24.8 Compliance with other laws and
ceipt requested, and documented in regulations.
Agency files. Each notice shall be writ- The implementation of this part
ten in plain, understandable language. must be in compliance with other ap-
Persons who are unable to read and un- plicable Federal laws and imple-
derstand the notice must be provided menting regulations, including, but not
with appropriate translation and coun- limited to, the following:
seling. Each notice shall indicate the (a) Section I of the Civil Rights Act
name and telephone number of a person of 1866 (42 U.S.C. 1982 et seq.).
who may be contacted for answers to (b) Title VI of the Civil Rights Act of
questions or other needed help. 1964 (42 U.S.C. 2000d et seq.).
(c) Title VIII of the Civil Rights Act
§ 24.6 Administration of jointly-funded of 1968 (42 U.S.C. 3601 et seq.), as amend-
projects. ed.
(d) The National Environmental Pol-
Whenever two or more Federal Agen-
icy Act of 1969 (42 U.S.C. 4321 et seq.).
cies provide financial assistance to an (e) Section 504 of the Rehabilitation
Agency or Agencies, other than a Fed- Act of 1973 (29 U.S.C. 790 et seq.).
eral Agency, to carry out functionally (f) The Flood Disaster Protection Act
or geographically related activities, of 1973 (Pub. L. 93–234).
which will result in the acquisition of (g) The Age Discrimination Act of
property or the displacement of a per- 1975 (42 U.S.C. 6101 et seq.).
son, the Federal Agencies may by (h) Executive Order 11063—Equal Op-
agreement designate one such Agency portunity and Housing, as amended by
as the cognizant Federal Agency. In Executive Order 12892.
the unlikely event that agreement (i) Executive Order 11246—Equal Em-
among the Agencies cannot be reached ployment Opportunity, as amended.
as to which Agency shall be the cog- (j) Executive Order 11625—Minority
nizant Federal Agency, then the Lead Business Enterprise.
Agency shall designate one of such (k) Executive Orders 11988—Flood-
Agencies to assume the cognizant role. plain Management, and 11990—Protec-
At a minimum, the agreement shall set tion of Wetlands.
forth the federally-assisted activities (l) Executive Order 12250—Leadership
and Coordination of Non-Discrimina-
which are subject to its terms and cite
tion Laws.
any policies and procedures, in addi-
(m) Executive Order 12630—Govern-
tion to this part, that are applicable to mental Actions and Interference with
the activities under the agreement. Constitutionally Protected Property
Under the agreement, the cognizant Rights.
Federal Agency shall assure that the (n) Robert T. Stafford Disaster Relief
project is in compliance with the provi- and Emergency Assistance Act, as
sions of the Uniform Act and this part. amended (42 U.S.C. 5121 et seq.).
All federally-assisted activities under (o) Executive Order 12892—Leadership
the agreement shall be deemed a and Coordination of Fair Housing in
project for the purposes of this part. Federal Programs: Affirmatively Fur-
thering Fair Housing (January 17, 1994).
§ 24.7 Federal Agency waiver of regu-
lations. § 24.9 Recordkeeping and reports.
The Federal Agency funding the (a) Records. The Agency shall main-
project may waive any requirement in tain adequate records of its acquisition
this part not required by law if it de- and displacement activities in suffi-
termines that the waiver does not re- cient detail to demonstrate compliance
duce any assistance or protection pro- with this part. These records shall be
vided to an owner or displaced person retained for at least 3 years after each
under this part. Any request for a waiv- owner of a property and each person
displaced from the property receives
er shall be justified on a case-by-case
the final payment to which he or she is
basis.
entitled under this part, or in accord-
ance with the applicable regulations of
228
the Federal funding Agency, whichever on the person’s right to inspect, con-
is later. sistent with applicable laws.
(b) Confidentiality of records. Records (f) Scope of review of appeal. In decid-
maintained by an Agency in according an appeal, the Agency shall con-
ance with this part are confidential re- sider all pertinent justification and
garding their use as public informa- other material submitted by the per-
tion, unless applicable law provides son, and all other available informa-
otherwise. tion that is needed to ensure a fair and
(c) Reports. The Agency shall submit full review of the appeal.
a report of its real property acquisition (g) Determination and notification after
and displacement activities under this appeal. Promptly after receipt of all in-
part if required by the Federal Agency formation submitted by a person in
funding the project. A report will not support of an appeal, the Agency shall
be required more frequently than every
make a written determination on the
3 years, or as the Uniform Act pro-
appeal, including an explanation of the
vides, unless the Federal funding Agen-
basis on which the decision was made,
cy shows good cause. The report shall
and furnish the person a copy. If the
be prepared and submitted using the
full relief requested is not granted, the
format contained in appendix B of this
part. Agency shall advise the person of his or
her right to seek judicial review of the
§ 24.10 Appeals. Agency decision.
(a) General. The Agency shall prompt- (h) Agency official to review appeal.
ly review appeals in accordance with The Agency official conducting the re-
the requirements of applicable law and view of the appeal shall be either the
this part. head of the Agency or his or her au-
(b) Actions which may be appealed. thorized designee. However, the official
Any aggrieved person may file a writ- shall not have been directly involved in
ten appeal with the Agency in any case the action appealed.
in which the person believes that the
Agency has failed to properly consider Subpart B—Real Property
the person’s application for assistance Acquisition
under this part. Such assistance may
include, but is not limited to, the per- § 24.101 Applicability of acquisition re-
son’s eligibility for, or the amount of, quirements.
a payment required under § 24.106 or (a) Direct Federal program or project.
§ 24.107, or a relocation payment re- (1) The requirements of this subpart
quired under this part. The Agency
apply to any acquisition of real prop-
shall consider a written appeal regard-
erty for a direct Federal program or
less of form.
project, except acquisition for a pro-
(c) Time limit for initiating appeal. The
gram or project that is undertaken by
Agency may set a reasonable time
limit for a person to file an appeal. The the Tennessee Valley Authority or the
time limit shall not be less than 60 Rural Utilities Service. (See appendix
days after the person receives written A, § 24.101(a).)
notification of the Agency’s determina- (2) If a Federal Agency (except for
tion on the person’s claim. the Tennessee Valley Authority or the
(d) Right to representation. A person Rural Utilities Service) will not ac-
has a right to be represented by legal quire a property because negotiations
counsel or other representative in con- fail to result in an agreement, the
nection with his or her appeal, but owner of the property shall be so in-
solely at the person’s own expense. formed in writing. Owners of such prop-
(e) Review of files by person making ap- erties are not displaced persons, (see
peal. The Agency shall permit a person §§ 24.2(a)(9)(ii)(E) or (H)), and as such,
to inspect and copy all materials perti- are not entitled to relocation assist-
nent to his or her appeal, except mate- ance benefits. However, tenants on
rials which are classified as confiden- such properties may be eligible for re-
tial by the Agency. The Agency may, location assistance benefits. (See
however, impose reasonable conditions § 24.2(a)(9)).
229
(b) Programs and projects receiving of the property. (See appendix A,

Federal financial assistance. The re- § 24.101(b)(1)(iv) and (2)(ii).)
quirements of this subpart apply to (3) The acquisition of real property
any acquisition of real property for from a Federal Agency, State, or State
programs and projects where there is Agency, if the Agency desiring to make
Federal financial assistance in any the purchase does not have authority
part of project costs except for the ac- to acquire the property through con-
quisitions described in paragraphs demnation.
(b)(1) through (5) of this section. The (4) The acquisition of real property
relocation assistance provisions in this by a cooperative from a person who, as
part are applicable to any tenants that a condition of membership in the coop-
must move as a result of an acquisition erative, has agreed to provide without
described in paragraphs (b)(1) through charge any real property that is needed
(5) of this section. Such tenants are by the cooperative.
considered displaced persons. (See (5) Acquisition for a program or
§ 24.2(a)(9).) project that receives Federal financial
(1) The requirements of Subpart B do assistance from the Tennessee Valley
not apply to acquisitions that meet all Authority or the Rural Utilities Serv-
of the following conditions in para- ice.
graphs (b)(1)(i) through (iv): (c) Less-than-full-fee interest in real
(i) No specific site or property needs property. (1) The provisions of this sub-
to be acquired, although the Agency part apply when acquiring fee title sub-
may limit its search for alternative ject to retention of a life estate or a
sites to a general geographic area. life use; to acquisition by leasing where
Where an Agency wishes to purchase the lease term, including option(s) for
more than one site within a general ge- extension, is 50 years or more; and to
ographic area on this basis, all owners the acquisition of permanent and/or
are to be treated similarly. (See appen- temporary easements necessary for the
dix A, § 24.101(b)(1)(i).) project. However, the Agency may
(ii) The property to be acquired is not apply these regulations to any less-
part of an intended, planned, or des- than-full-fee acquisition that, in its
ignated project area where all or sub- judgment, should be covered.
stantially all of the property within (2) The provisions of this subpart do
the area is to be acquired within spe- not apply to temporary easements or
cific time limits. permits needed solely to perform work
(iii) The Agency will not acquire the intended exclusively for the benefit of
property if negotiations fail to result the property owner, which work may
in an amicable agreement, and the not be done if agreement cannot be
owner is so informed in writing. reached.
(iv) The Agency will inform the (d) Federally-assisted projects. For
owner in writing of what it believes to projects receiving Federal financial as-
be the market value of the property. sistance, the provisions of §§ 24.102,
(See appendix A, § 24.101(b)(1)(iv) and 24.103, 24.104, and 24.105 apply to the
(2)(ii).) greatest extent practicable under State
(2) Acquisitions for programs or law. (See § 24.4(a).)
projects undertaken by an Agency or
person that receives Federal financial § 24.102 Basic acquisition policies.
assistance but does not have authority (a) Expeditious acquisition. The Agen-
to acquire property by eminent do- cy shall make every reasonable effort
main, provided that such Agency or to acquire the real property expedi-
person shall: tiously by negotiation.
(i) Prior to making an offer for the (b) Notice to owner. As soon as fea-
property, clearly advise the owner that sible, the Agency shall notify the
it is unable to acquire the property if owner in writing of the Agency’s inter-
negotiations fail to result in an agree- est in acquiring the real property and
ment; and the basic protections provided to the
(ii) Inform the owner in writing of owner by law and this part. (See
what it believes to be the market value § 24.203.)
230
(c) Appraisal, waiver thereof, and invi- (e) Summary statement. Along with the
tation to owner. (1) Before the initiation initial written purchase offer, the
of negotiations the real property to be owner shall be given a written state-
acquired shall be appraised, except as ment of the basis for the offer of just
provided in § 24.102 (c)(2), and the compensation, which shall include:
owner, or the owner’s designated rep- (1) A statement of the amount offered
resentative, shall be given an oppor- as just compensation. In the case of a
tunity to accompany the appraiser dur- partial acquisition, the compensation
ing the appraiser’s inspection of the for the real property to be acquired and
property. the compensation for damages, if any,
(2) An appraisal is not required if: to the remaining real property shall be
(i) The owner is donating the prop- separately stated.
erty and releases the Agency from its
(2) A description and location identi-
obligation to appraise the property; or
fication of the real property and the in-
(ii) The Agency determines that an
appraisal is unnecessary because the terest in the real property to be ac-
valuation problem is uncomplicated quired.
and the anticipated value of the pro- (3) An identification of the buildings,
posed acquisition is estimated at structures, and other improvements
$10,000 or less, based on a review of (including removable building equip-
available data. ment and trade fixtures) which are in-
(A) When an appraisal is determined cluded as part of the offer of just com-
to be unnecessary, the Agency shall pensation. Where appropriate, the
prepare a waiver valuation. statement shall identify any other sep-
(B) The person performing the waiver arately held ownership interest in the
valuation must have sufficient under- property, e.g., a tenant-owned improve-
standing of the local real estate mar- ment, and indicate that such interest
ket to be qualified to make the waiver is not covered by this offer.
valuation. (f) Basic negotiation procedures. The
(C) The Federal Agency funding the Agency shall make all reasonable ef-
project may approve exceeding the forts to contact the owner or the own-
$10,000 threshold, up to a maximum of er’s representative and discuss its offer
$25,000, if the Agency acquiring the real to purchase the property, including the
property offers the property owner the basis for the offer of just compensation
option of having the Agency appraise and explain its acquisition policies and
the property. If the property owner procedures, including its payment of
elects to have the Agency appraise the incidental expenses in accordance with
property, the Agency shall obtain an § 24.106. The owner shall be given rea-
appraisal and not use procedures de-
sonable opportunity to consider the
scribed in this paragraph. (See appen-
offer and present material which the
dix A, § 24.102(c)(2).)
owner believes is relevant to deter-
(d) Establishment and offer of just com-
pensation. Before the initiation of nego- mining the value of the property and to
tiations, the Agency shall establish an suggest modification in the proposed
amount which it believes is just com- terms and conditions of the purchase.
pensation for the real property. The The Agency shall consider the owner’s
amount shall not be less than the ap- presentation. (See appendix A,
proved appraisal of the fair market § 24.102(f).)
value of the property, taking into ac- (g) Updating offer of just compensation.
count the value of allowable damages If the information presented by the
or benefits to any remaining property. owner, or a material change in the
An Agency official must establish the character or condition of the property,
amount believed to be just compensa- indicates the need for new appraisal in-
tion. (See § 24.104.) Promptly thereafter, formation, or if a significant delay has
the Agency shall make a written offer occurred since the time of the ap-
to the owner to acquire the property praisal(s) of the property, the Agency
for the full amount believed to be just shall have the appraisal(s) updated or
compensation. (See appendix A, obtain a new appraisal(s). If the latest
§ 24.102(d).) appraisal information indicates that a
231
change in the purchase offer is war- ceedings to prove the fact of the taking
ranted, the Agency shall promptly re- of the real property.
establish just compensation and offer (m) Fair rental. If the Agency permits
that amount to the owner in writing. a former owner or tenant to occupy the
(h) Coercive action. The Agency shall real property after acquisition for a
not advance the time of condemnation, short term, or a period subject to ter-
or defer negotiations or condemnation mination by the Agency on short no-
or the deposit of funds with the court, tice, the rent shall not exceed the fair
or take any other coercive action in market rent for such occupancy. (See
order to induce an agreement on the appendix A, § 24.102(m).)
price to be paid for the property. (n) Conflict of interest. (1) The ap-
(i) Administrative settlement. The pur- praiser, review appraiser or person per-
chase price for the property may ex- forming the waiver valuation shall not
ceed the amount offered as just com- have any interest, direct or indirect, in
pensation when reasonable efforts to the real property being valued for the
negotiate an agreement at that Agency.
amount have failed and an authorized Compensation for making an ap-
Agency official approves such adminis- praisal or waiver valuation shall not be
trative settlement as being reasonable, based on the amount of the valuation
prudent, and in the public interest. estimate.
When Federal funds pay for or partici- (2) No person shall attempt to unduly
pate in acquisition costs, a written jus- influence or coerce an appraiser, re-
tification shall be prepared, which view appraiser, or waiver valuation
states what available information, in- preparer regarding any valuation or
cluding trial risks, supports such a set- other aspect of an appraisal, review or
tlement. (See appendix A, § 24.102(i).) waiver valuation. Persons functioning
(j) Payment before taking possession. as negotiators may not supervise or
Before requiring the owner to sur- formally evaluate the performance of
render possession of the real property, any appraiser or review appraiser per-
the Agency shall pay the agreed pur- forming appraisal or appraisal review
chase price to the owner, or in the case work, except that, for a program or
of a condemnation, deposit with the project receiving Federal financial as-
court, for the benefit of the owner, an sistance, the Federal funding Agency
amount not less than the Agency’s ap- may waive this requirement if it deter-
proved appraisal of the fair market mines it would create a hardship for
value of such property, or the court the Agency.
award of compensation in the con- (3) An appraiser, review appraiser, or
demnation proceeding for the property. waiver valuation preparer making an
In exceptional circumstances, with the appraisal, appraisal review or waiver
prior approval of the owner, the Agen- valuation may be authorized by the
cy may obtain a right-of-entry for con- Agency to act as a negotiator for real
struction purposes before making pay- property for which that person has
ment available to an owner. (See appen- made an appraisal, appraisal review or
dix A, § 24.102(j).) waiver valuation only if the offer to ac-
(k) Uneconomic remnant. If the acqui- quire the property is $10,000, or less.
sition of only a portion of a property (See appendix A, § 24.102(n).)
would leave the owner with an uneco-
nomic remnant, the Agency shall offer [70 FR 611, Jan. 4, 2005, as amended at 70 FR
22611, May 2, 2005]
to acquire the uneconomic remnant
along with the portion of the property
§ 24.103 Criteria for appraisals.
needed for the project. (See § 24.2(a)(27).)
(l) Inverse condemnation. If the Agen- (a) Appraisal requirements. This sec-
cy intends to acquire any interest in tion sets forth the requirements for
real property by exercise of the power real property acquisition appraisals for
of eminent domain, it shall institute Federal and federally-assisted pro-
formal condemnation proceedings and grams. Appraisals are to be prepared
not intentionally make it necessary for according to these requirements, which
the owner to institute legal pro- are intended to be consistent with the
232
Uniform Standards of Professional Ap- (ii) All relevant and reliable ap-
praisal Practice (USPAP).1 (See appen- proaches to value consistent with es-
dix A, § 24.103(a).) The Agency may tablished Federal and federally-as-
have appraisal requirements that sup- sisted program appraisal practices. If
plement these requirements, including, the appraiser uses more than one ap-
to the extent appropriate, the Uniform proach, there shall be an analysis and
Appraisal Standards for Federal Land reconciliation of approaches to value
Acquisition (UASFLA).2 used that is sufficient to support the
(1) The Agency acquiring real prop- appraiser’s opinion of value. (See ap-
erty has a legitimate role in contrib- pendix A, § 24.103(a).)
uting to the appraisal process, espe- (iii) A description of comparable
cially in developing the scope of work sales, including a description of all rel-
and defining the appraisal problem. evant physical, legal, and economic
The scope of work and development of factors such as parties to the trans-
an appraisal under these requirements action, source and method of financing,
depends on the complexity of the ap- and verification by a party involved in
praisal problem. the transaction.
(2) The Agency has the responsibility (iv) A statement of the value of the
to assure that the appraisals it obtains real property to be acquired and, for a
are relevant to its program needs, re- partial acquisition, a statement of the
flect established and commonly accept- value of the damages and benefits, if
ed Federal and federally-assisted pro- any, to the remaining real property,
gram appraisal practice, and as a min- where appropriate.
imum, complies with the definition of (v) The effective date of valuation,
appraisal in § 24.2(a)(3) and the five fol- date of appraisal, signature, and cer-
lowing requirements: (See appendix A, tification of the appraiser.
§§ 24.103 and 24.103(a).) (b) Influence of the project on just com-
(i) An adequate description of the pensation. The appraiser shall disregard
physical characteristics of the property any decrease or increase in the fair
being appraised (and, in the case of a market value of the real property
partial acquisition, an adequate de- caused by the project for which the
scription of the remaining property), property is to be acquired, or by the
including items identified as personal likelihood that the property would be
property, a statement of the known acquired for the project, other than
and observed encumbrances, if any, that due to physical deterioration
title information, location, zoning, within the reasonable control of the
present use, an analysis of highest and owner. (See appendix A, § 24.103(b).)
best use, and at least a 5-year sales his- (c) Owner retention of improvements. If
tory of the property. (See appendix A, the owner of a real property improve-
§ 24.103(a)(1).) ment is permitted to retain it for re-
moval from the project site, the
1 Uniform Standards of Professional Ap- amount to be offered for the interest in
praisal Practice (USPAP). Published by The the real property to be acquired shall
Appraisal Foundation, a nonprofit edu- be not less than the difference between
cational organization. Copies may be ordered the amount determined to be just com-
from The Appraisal Foundation at the fol- pensation for the owner’s entire inter-
lowing URL: http://
www.appraisalfoundation.org/htm/USPAP2004/
est in the real property and the salvage
toc.htm. value (defined at § 24.2(a)(24)) of the re-
2 The ‘‘Uniform Appraisal Standards for tained improvement.
Federal Land Acquisitions’’ is published by (d) Qualifications of appraisers and re-
the Interagency Land Acquisition Con- view appraisers. (1) The Agency shall es-
ference. It is a compendium of Federal emi- tablish criteria for determining the
nent domain appraisal law, both case and minimum qualifications and com-
statute, regulations and practices. It is petency of appraisers and review ap-
available at http://www.usdoj.gov/enrd/land-
ack/toc.htm or in soft cover format from the
praisers. Qualifications shall be con-
Appraisal Institute at http:// sistent with the scope of work for the
www.appraisalinstitute.org/econom/publications/ assignment. The Agency shall review
Default.asp and select ‘‘Legal/Regulatory’’ or the experience, education, training,
call 888–570–4545. certification/licensing, designation(s)
233
and other qualifications of appraisers, § 24.103 to support a recommended (or

and review appraisers, and use only approved) value. (See appendix A,
those determined by the Agency to be § 24.104(b).)
qualified. (See appendix A, (c) The review appraiser shall prepare
§ 24.103(d)(1).) a written report that identifies the ap-
(2) If the Agency uses a contract (fee) praisal reports reviewed and documents
appraiser to perform the appraisal, the findings and conclusions arrived at
such appraiser shall be State licensed during the review of the appraisal(s).
or certified in accordance with title XI Any damages or benefits to any re-
of the Financial Institutions Reform,
maining property shall be identified in
Recovery, and Enforcement Act of 1989
the review appraiser’s report. The re-
(FIRREA) (12 U.S.C. 3331 et seq.).
view appraiser shall also prepare a
[70 FR 611, Jan. 4, 2005, as amended at 70 FR signed certification that states the pa-
22611, May 2, 2005] rameters of the review. The certifi-
§ 24.104 Review of appraisals. cation shall state the approved value,
and, if the review appraiser is author-
The Agency shall have an appraisal ized to do so, the amount believed to be
review process and, at a minimum: just compensation for the acquisition.
(a) A qualified review appraiser (see
(See appendix A, § 24.104(c).)
§ 24.103(d)(1) and appendix A, § 24.104)
shall examine the presentation and § 24.105 Acquisition of tenant-owned
analysis of market information in all improvements.
appraisals to assure that they meet the
definition of appraisal found in 49 CFR (a) Acquisition of improvements. When
24.2(a)(3), appraisal requirements found acquiring any interest in real property,
in 49 CFR 24.103 and other applicable the Agency shall offer to acquire at
requirements, including, to the extent least an equal interest in all buildings,
appropriate, the UASFLA, and support structures, or other improvements lo-
the appraiser’s opinion of value. The cated upon the real property to be ac-
level of review analysis depends on the quired, which it requires to be removed
complexity of the appraisal problem. or which it determines will be ad-
As needed, the review appraiser shall, versely affected by the use to which
prior to acceptance, seek necessary such real property will be put. This
corrections or revisions. The review ap- shall include any improvement of a
praiser shall identify each appraisal re- tenant-owner who has the right or obli-
port as recommended (as the basis for gation to remove the improvement at
the establishment of the amount be- the expiration of the lease term.
lieved to be just compensation), ac- (b) Improvements considered to be real
cepted (meets all requirements, but not property. Any building, structure, or
selected as recommended or approved),
other improvement, which would be
or not accepted. If authorized by the
considered to be real property if owned
Agency to do so, the staff review ap-
by the owner of the real property on
praiser shall also approve the appraisal
which it is located, shall be considered
(as the basis for the establishment of
to be real property for purposes of this
the amount believed to be just com-
pensation), and, if also authorized to do subpart.
so, develop and report the amount be- (c) Appraisal and Establishment of Just
lieved to be just compensation. (See ap- Compensation for a Tenant-Owned Im-
pendix A, § 24.104(a).) provement. Just compensation for a ten-
(b) If the review appraiser is unable ant-owned improvement is the amount
to recommend (or approve) an ap- which the improvement contributes to
praisal as an adequate basis for the es- the fair market value of the whole
tablishment of the offer of just com- property, or its salvage value, which-
pensation, and it is determined by the ever is greater. (Salvage value is de-
acquiring Agency that it is not prac- fined at § 24.2(a)(23).)
tical to obtain an additional appraisal, (d) Special conditions for tenant-owned
the review appraiser may, as part of improvements. No payment shall be
the review, present and analyze market made to a tenant-owner for any real
information in conformance with property improvement unless:
234
(1) The tenant-owner, in consider- the owner actually incurred because of

ation for the payment, assigns, trans- a condemnation proceeding, if:
fers, and releases to the Agency all of (a) The final judgment of the court is
the tenant-owner’s right, title, and in- that the Agency cannot acquire the
terest in the improvement; real property by condemnation;
(2) The owner of the real property on (b) The condemnation proceeding is
which the improvement is located dis- abandoned by the Agency other than
claims all interest in the improvement; under an agreed-upon settlement; or
and (c) The court having jurisdiction ren-
(3) The payment does not result in ders a judgment in favor of the owner
the duplication of any compensation in an inverse condemnation proceeding
otherwise authorized by law. or the Agency effects a settlement of
(e) Alternative compensation. Nothing such proceeding.
in this subpart shall be construed to
deprive the tenant-owner of any right § 24.108 Donations.
to reject payment under this subpart An owner whose real property is
and to obtain payment for such prop- being acquired may, after being fully
erty interests in accordance with other
informed by the Agency of the right to
applicable law.
receive just compensation for such
[70 FR 611, Jan. 4, 2005, as amended at 70 FR property, donate such property or any
22611, May 2, 2005] part thereof, any interest therein, or
any compensation paid therefore, to
§ 24.106 Expenses incidental to trans- the Agency as such owner shall deter-
fer of title to the Agency.
mine. The Agency is responsible for en-
(a) The owner of the real property suring that an appraisal of the real
shall be reimbursed for all reasonable property is obtained unless the owner
expenses the owner necessarily in- releases the Agency from such obliga-
curred for: tion, except as provided in § 24.102(c)(2).
(1) Recording fees, transfer taxes,
documentary stamps, evidence of title,
boundary surveys, legal descriptions of
Subpart C—General Relocation
the real property, and similar expenses Requirements
incidental to conveying the real prop- § 24.201 Purpose.
erty to the Agency. However, the Agen-
cy is not required to pay costs solely This subpart prescribes general re-
required to perfect the owner’s title to quirements governing the provision of
the real property; relocation payments and other reloca-
(2) Penalty costs and other charges tion assistance in this part.
for prepayment of any preexisting re-
§ 24.202 Applicability.
corded mortgage entered into in good
faith encumbering the real property; These requirements apply to the relo-
and cation of any displaced person as de-
(3) The pro rata portion of any pre- fined at § 24.2(a)(9). Any person who
paid real property taxes which are allo- qualifies as a displaced person must be
cable to the period after the Agency fully informed of his or her rights and
obtains title to the property or effec- entitlements to relocation assistance
tive possession of it, whichever is ear- and payments provided by the Uniform
lier. Act and this regulation. (See appendix
(b) Whenever feasible, the Agency A, § 24.202.)
shall pay these costs directly to the
billing agent so that the owner will not § 24.203 Relocation notices.
have to pay such costs and then seek (a) General information notice. As soon
reimbursement from the Agency. as feasible, a person scheduled to be
displaced shall be furnished with a gen-
§ 24.107 Certain litigation expenses. eral written description of the dis-
The owner of the real property shall placing Agency’s relocation program
be reimbursed for any reasonable ex- which does at least the following:
penses, including reasonable attorney, (1) Informs the person that he or she
appraisal, and engineering fees, which may be displaced for the project and
235
generally describes the relocation pay- the earliest date by which the occupant
ment(s) for which the person may be el- may be required to move, or state that
igible, the basic conditions of eligi- the occupant will receive a further no-
bility, and the procedures for obtaining tice indicating, at least 30 days in ad-
the payment(s); vance, the specific date by which he or
(2) Informs the displaced person that she must move. If the 90-day notice is
he or she will be given reasonable relo- issued before a comparable replace-
cation advisory services, including re- ment dwelling is made available, the
ferrals to replacement properties, help notice must state clearly that the oc-
in filing payment claims, and other cupant will not have to move earlier
necessary assistance to help the dis- than 90 days after such a dwelling is
placed person successfully relocate; made available. (See § 24.204(a).)
(3) Informs the displaced person that (4) Urgent need. In unusual cir-
he or she will not be required to move cumstances, an occupant may be re-
without at least 90 days advance writ- quired to vacate the property on less
ten notice (see paragraph (c) of this than 90 days advance written notice if
section), and informs any person to be the displacing Agency determines that
displaced from a dwelling that he or a 90-day notice is impracticable, such
she cannot be required to move perma- as when the person’s continued occu-
nently unless at least one comparable pancy of the property would constitute
replacement dwelling has been made a substantial danger to health or safe-
available; ty. A copy of the Agency’s determina-
(4) Informs the displaced person that tion shall be included in the applicable
any person who is an alien not lawfully case file.
present in the United States is ineli- (d) Notice of intent to acquire. A notice
gible for relocation advisory services of intent to acquire is a displacing
and relocation payments, unless such Agency’s written communication that
ineligibility would result in excep- is provided to a person to be displaced,
tional and extremely unusual hardship including those to be displaced by reha-
to a qualifying spouse, parent, or child, bilitation or demolition activities from
as defined in § 24.208(h); and property acquired prior to the commit-
(5) Describes the displaced person’s ment of Federal financial assistance to
right to appeal the Agency’s deter- the activity, which clearly sets forth
mination as to a person’s application that the Agency intends to acquire the
for assistance for which a person may property. A notice of intent to acquire
be eligible under this part. establishes eligibility for relocation as-
(b) Notice of relocation eligibility. Eligi- sistance prior to the initiation of nego-
bility for relocation assistance shall tiations and/or prior to the commit-
begin on the date of a notice of intent ment of Federal financial assistance.
to acquire (described in § 24.203(d)), the (See § 24.2(a)(9)(i)(A).)
initiation of negotiations (defined in
§ 24.2(a)(15)), or actual acquisition, § 24.204 Availability of comparable re-
whichever occurs first. When this oc- placement dwelling before displace-
curs, the Agency shall promptly notify ment.
all occupants in writing of their eligi- (a) General. No person to be displaced
bility for applicable relocation assist- shall be required to move from his or
ance. her dwelling unless at least one com-
(c) Ninety-day notice—(1) General. No parable replacement dwelling (defined
lawful occupant shall be required to at § 24.2 (a)(6)) has been made available
move unless he or she has received at to the person. When possible, three or
least 90 days advance written notice of more comparable replacement dwell-
the earliest date by which he or she ings shall be made available. A com-
may be required to move. parable replacement dwelling will be
(2) Timing of notice. The displacing considered to have been made available
Agency may issue the notice 90 days or to a person, if:
earlier before it expects the person to (1) The person is informed of its loca-
be displaced. tion;
(3) Content of notice. The 90-day no- (2) The person has sufficient time to
tice shall either state a specific date as negotiate and enter into a purchase
236
agreement or lease for the property; associated with the displacement of in-
and dividuals, families, businesses, farms,
(3) Subject to reasonable safeguards, and nonprofit organizations and de-
the person is assured of receiving the velop solutions to minimize the ad-
relocation assistance and acquisition verse impacts of displacement. Such
payment to which the person is enti- planning, where appropriate, shall pre-
tled in sufficient time to complete the cede any action by an Agency which
purchase or lease of the property. will cause displacement, and should be
(b) Circumstances permitting waiver. scoped to the complexity and nature of
The Federal Agency funding the the anticipated displacing activity in-
project may grant a waiver of the pol- cluding an evaluation of program re-
icy in paragraph (a) of this section in sources available to carry out timely
any case where it is demonstrated that and orderly relocations. Planning may
a person must move because of: involve a relocation survey or study,
(1) A major disaster as defined in sec- which may include the following:
tion 102 of the Robert T. Stafford Dis- (1) An estimate of the number of
aster Relief and Emergency Assistance households to be displaced including
Act, as amended (42 U.S.C. 5122); information such as owner/tenant sta-
(2) A presidentially declared national tus, estimated value and rental rates of
emergency; or properties to be acquired, family char-
(3) Another emergency which re- acteristics, and special consideration
quires immediate vacation of the real of the impacts on minorities, the elder-
property, such as when continued occu- ly, large families, and persons with dis-
pancy of the displacement dwelling abilities when applicable.
constitutes a substantial danger to the (2) An estimate of the number of
health or safety of the occupants or the comparable replacement dwellings in
public. the area (including price ranges and
(c) Basic conditions of emergency move. rental rates) that are expected to be
Whenever a person to be displaced is available to fulfill the needs of those
required to relocate from the displace- households displaced. When an ade-
ment dwelling for a temporary period quate supply of comparable housing is
because of an emergency as described not expected to be available, the Agen-
in paragraph (b) of this section, the cy should consider housing of last re-
Agency shall: sort actions.
(1) Take whatever steps are necessary (3) An estimate of the number, type
to assure that the person is tempo- and size of the businesses, farms, and
rarily relocated to a decent, safe, and nonprofit organizations to be displaced
sanitary dwelling; and the approximate number of em-
(2) Pay the actual reasonable out-of- ployees that may be affected.
pocket moving expenses and any rea- (4) An estimate of the availability of
sonable increase in rent and utility replacement business sites. When an
costs incurred in connection with the adequate supply of replacement busi-
temporary relocation; and ness sites is not expected to be avail-
(3) Make available to the displaced able, the impacts of displacing the
person as soon as feasible, at least one businesses should be considered and ad-
comparable replacement dwelling. (For dressed. Planning for displaced busi-
purposes of filing a claim and meeting nesses which are reasonably expected
the eligibility requirements for a relo- to involve complex or lengthy moving
cation payment, the date of displace- processes or small businesses with lim-
ment is the date the person moves from ited financial resources and/or few al-
the temporarily occupied dwelling.) ternative relocation sites should in-
clude an analysis of business moving
§ 24.205 Relocation planning, advisory problems.
services, and coordination. (5) Consideration of any special relo-
(a) Relocation planning. During the cation advisory services that may be
early stages of development, an Agency necessary from the displacing Agency
shall plan Federal and federally-as- and other cooperating Agencies.
sisted programs or projects in such a (b) Loans for planning and preliminary
manner that recognizes the problems expenses. In the event that an Agency
237
elects to consider using the duplicative (C) For businesses, an identification

provision in section 215 of the Uniform and resolution of personalty/realty
Act which permits the use of project issues. Every effort must be made to
funds for loans to cover planning and identify and resolve realty/personalty
other preliminary expenses for the de- issues prior to, or at the time of, the
velopment of additional housing, the appraisal of the property.
Lead Agency will establish criteria and (D) An estimate of the time required
procedures for such use upon the re- for the business to vacate the site.
quest of the Federal Agency funding (E) An estimate of the anticipated
the program or project. difficulty in locating a replacement
(c) Relocation assistance advisory serv- property.
ices—(1) General. The Agency shall (F) An identification of any advance
carry out a relocation assistance advi- relocation payments required for the
sory program which satisfies the remove, and the Agency’s legal capacity
quirements of Title VI of the Civil to provide them.
Rights Act of 1964 (42 U.S.C. 2000d et
(ii) Determine, for residential dis-
seq.), Title VIII of the Civil Rights Act
placements, the relocation needs and
of 1968 (42 U.S.C. 3601 et seq.), and Exec-
preferences of each person to be dis-
utive Order 11063 (27 FR 11527, Novem-
placed and explain the relocation pay-
ber 24, 1962), and offer the services de-
ments and other assistance for which
scribed in paragraph (c)(2) of this sec-
the person may be eligible, the related
tion. If the Agency determines that a
eligibility requirements, and the proce-
person occupying property adjacent to
dures for obtaining such assistance.
the real property acquired for the
project is caused substantial economic This shall include a personal interview
injury because of such acquisition, it with each residential displaced person.
may offer advisory services to such (A) Provide current and continuing
person. information on the availability, pur-
(2) Services to be provided. The advi- chase prices, and rental costs of com-
sory program shall include such meas- parable replacement dwellings, and ex-
ures, facilities, and services as may be plain that the person cannot be re-
necessary or appropriate in order to: quired to move unless at least one com-
(i) Determine, for nonresidential parable replacement dwelling is made
(businesses, farm and nonprofit organi- available as set forth in § 24.204(a).
zations) displacements, the relocation (B) As soon as feasible, the Agency
needs and preferences of each business shall inform the person in writing of
(farm and nonprofit organization) to be the specific comparable replacement
displaced and explain the relocation dwelling and the price or rent used for
payments and other assistance for establishing the upper limit of the re-
which the business may be eligible, the placement housing payment (see § 24.403
related eligibility requirements, and (a) and (b)) and the basis for the deter-
the procedures for obtaining such as- mination, so that the person is aware
sistance. This shall include a personal of the maximum replacement housing
interview with each business. At a min- payment for which he or she may qual-
imum, interviews with displaced busi- ify.
ness owners and operators should in- (C) Where feasible, housing shall be
clude the following items: inspected prior to being made available
(A) The business’s replacement site to assure that it meets applicable
requirements, current lease terms and standards. (See § 24.2(a)(8).) If such an
other contractual obligations and the inspection is not made, the Agency
financial capacity of the business to shall notify the person to be displaced
accomplish the move. that a replacement housing payment
(B) Determination of the need for may not be made unless the replace-
outside specialists in accordance with ment dwelling is subsequently in-
§ 24.301(g)(12) that will be required to spected and determined to be decent,
assist in planning the move, assistance safe, and sanitary.
in the actual move, and in the re- (D) Whenever possible, minority per-
installation of machinery and/or other sons shall be given reasonable opportu-
personal property. nities to relocate to decent, safe, and
238
sanitary replacement dwellings, not lo- pancy is permitted by a short term

cated in an area of minority concentra- rental agreement or an agreement sub-
tion, that are within their financial ject to termination when the property
means. This policy, however, does not is needed for a program or project,
require an Agency to provide a person shall be eligible for advisory services,
a larger payment than is necessary to as determined by the Agency.
enable a person to relocate to a com-
parable replacement dwelling. (See ap- § 24.206 Eviction for cause.
pendix A, § 24.205(c)(2)(ii)(D).) (a) Eviction for cause must conform
(E) The Agency shall offer all persons to applicable State and local law. Any
transportation to inspect housing to person who occupies the real property
which they are referred. and is not in unlawful occupancy on
(F) Any displaced person that may be the date of the initiation of negotia-
eligible for government housing assist- tions, is presumed to be entitled to re-
ance at the replacement dwelling shall location payments and other assistance
be advised of any requirements of such set forth in this part unless the Agency
government housing assistance pro- determines that:
gram that would limit the size of the (1) The person received an eviction
replacement dwelling (see notice prior to the initiation of nego-
§ 24.2(a)(6)(ix)), as well as of the long tiations and, as a result of that notice
term nature of such rent subsidy, and is later evicted; or
the limited (42 month) duration of the (2) The person is evicted after the ini-
relocation rental assistance payment. tiation of negotiations for serious or
(iii) Provide, for nonresidential repeated violation of material terms of
moves, current and continuing infor- the lease or occupancy agreement; and
mation on the availability, purchase (3) In either case the eviction was not
prices, and rental costs of suitable undertaken for the purpose of evading
commercial and farm properties and lo- the obligation to make available the
cations. Assist any person displaced payments and other assistance set
from a business or farm operation to forth in this part.
obtain and become established in a (b) For purposes of determining eligi-
suitable replacement location. bility for relocation payments, the
(iv) Minimize hardships to persons in date of displacement is the date the
adjusting to relocation by providing person moves, or if later, the date a
counseling, advice as to other sources comparable replacement dwelling is
of assistance that may be available, made available. This section applies
and such other help as may be appro- only to persons who would otherwise
priate. have been displaced by the project. (See
(v) Supply persons to be displaced appendix A, § 24.206.)
with appropriate information con-
cerning Federal and State housing pro- § 24.207 General requirements—claims
grams, disaster loan and other pro- for relocation payments.
grams administered by the Small Busi- (a) Documentation. Any claim for a re-
ness Administration, and other Federal location payment shall be supported by
and State programs offering assistance such documentation as may be reason-
to displaced persons, and technical help ably required to support expenses in-
to persons applying for such assistance. curred, such as bills, certified prices,
(d) Coordination of relocation activities. appraisals, or other evidence of such
Relocation activities shall be coordi- expenses. A displaced person must be
nated with project work and other dis- provided reasonable assistance nec-
placement-causing activities to ensure essary to complete and file any re-
that, to the extent feasible, persons quired claim for payment.
displaced receive consistent treatment (b) Expeditious payments. The Agency
and the duplication of functions is shall review claims in an expeditious
minimized. (See § 24.6.) manner. The claimant shall be prompt-
(e) Any person who occupies property ly notified as to any additional docu-
acquired by an Agency, when such oc- mentation that is required to support
cupancy began subsequent to the ac- the claim. Payment for a claim shall
quisition of the property, and the occu- be made as soon as feasible following
239
receipt of sufficient documentation to alien who is lawfully present in the

support the claim. United States. The certification may
(c) Advanced payments. If a person be made by the head of the household
demonstrates the need for an advanced on behalf of other family members.
relocation payment in order to avoid or (3) In the case of an unincorporated
reduce a hardship, the Agency shall business, farm, or nonprofit organiza-
issue the payment, subject to such tion, that each owner is either a citizen
safeguards as are appropriate to ensure or national of the United States, or an
that the objective of the payment is ac- alien who is lawfully present in the
complished. United States. The certification may
(d) Time for filing. (1) All claims for a be made by the principal owner, man-
relocation payment shall be filed with ager, or operating officer on behalf of
the Agency no later than 18 months other persons with an ownership inter-
after: est.
(i) For tenants, the date of displace- (4) In the case of an incorporated
ment. business, farm, or nonprofit organiza-
(ii) For owners, the date of displace- tion, that the corporation is authorized
ment or the date of the final payment to conduct business within the United
for the acquisition of the real property, States.
whichever is later. (b) The certification provided pursu-
(2) The Agency shall waive this time ant to paragraphs (a)(1), (a)(2), and
period for good cause. (a)(3) of this section shall indicate
(e) Notice of denial of claim. If the whether such person is either a citizen
Agency disapproves all or part of a or national of the United States, or an
payment claimed or refuses to consider alien who is lawfully present in the
the claim on its merits because of un- United States. Requirements con-
timely filing or other grounds, it shall cerning the certification in addition to
promptly notify the claimant in writ- those contained in this rule shall be
ing of its determination, the basis for within the discretion of the Federal
its determination, and the procedures funding Agency and, within those pa-
for appealing that determination. rameters, that of the displacing Agen-
(f) No waiver of relocation assistance. A cy.
displacing Agency shall not propose or (c) In computing relocation pay-
request that a displaced person waive ments under the Uniform Act, if any
his or her rights or entitlements to remember(s) of a household or owner(s)
location assistance and benefits proof an unincorporated business, farm, or
vided by the Uniform Act and this reg- nonprofit organization is (are) deter-
ulation. mined to be ineligible because of a fail-
(g) Expenditure of payments. Pay- ure to be legally present in the United
ments, provided pursuant to this part, States, no relocation payments may be
shall not be considered to constitute made to him or her. Any payment(s)
Federal financial assistance. Accord- for which such household, unincor-
ingly, this part does not apply to the porated business, farm, or nonprofit or-
expenditure of such payments by, or ganization would otherwise be eligible
for, a displaced person. shall be computed for the household,
based on the number of eligible house-
§ 24.208 Aliens not lawfully present in hold members and for the unincor-
the United States. porated business, farm, or nonprofit or-
(a) Each person seeking relocation ganization, based on the ratio of own-
payments or relocation advisory assist- ership between eligible and ineligible
ance shall, as a condition of eligibility, owners.
certify: (d) The displacing Agency shall con-
(1) In the case of an individual, that sider the certification provided pursu-
he or she is either a citizen or national ant to paragraph (a) of this section to
of the United States, or an alien who is be valid, unless the displacing Agency
lawfully present in the United States. determines in accordance with para-
(2) In the case of a family, that each graph (f) of this section that it is in-
family member is either a citizen or valid based on a review of an alien’s
national of the United States, or an documentation or other information
240
that the Agency considers reliable and onstrate to the displacing Agency’s
appropriate. satisfaction that the denial of reloca-
(e) Any review by the displacing tion assistance will result in an excep-
Agency of the certifications provided tional and extremely unusual hardship
pursuant to paragraph (a) of this sec- to such person’s spouse, parent, or
tion shall be conducted in a non- child who is a citizen of the United
discriminatory fashion. Each dis- States, or is an alien lawfully admitted
placing Agency will apply the same for permanent residence in the United
standard of review to all such certifi- States.
cations it receives, except that such (h) For purposes of paragraph (g) of
standard may be revised periodically.
this section, ‘‘exceptional and ex-
(f) If, based on a review of an alien’s
tremely unusual hardship’’ to such
documentation or other credible evi-
dence, a displacing Agency has reason spouse, parent, or child of the person
to believe that a person’s certification not lawfully present in the United
is invalid (for example a document re- States means that the denial of reloca-
viewed does not on its face reasonably tion payments and advisory assistance
appear to be genuine), and that, as a to such person will directly result in:
result, such person may be an alien not (1) A significant and demonstrable
lawfully present in the United States, adverse impact on the health or safety
it shall obtain the following informa- of such spouse, parent, or child;
tion before making a final determina- (2) A significant and demonstrable
tion: adverse impact on the continued exist-
(1) If the Agency has reason to be- ence of the family unit of which such
lieve that the certification of a person spouse, parent, or child is a member; or
who has certified that he or she is an (3) Any other impact that the dis-
alien lawfully present in the United placing Agency determines will have a
States is invalid, the displacing Agency significant and demonstrable adverse
shall obtain verification of the alien’s impact on such spouse, parent, or
status from the local Bureau of Citi- child.
zenship and Immigration Service
(i) The certification referred to in
(BCIS) Office. A list of local BCIS of-
fices is available at http:// paragraph (a) of this section may be in-
www.uscis.gov/graphics/fieldoffices/ cluded as part of the claim for reloca-
alphaa.htm. Any request for BCIS tion payments described in § 24.207 of
verification shall include the alien’s this part.
full name, date of birth and alien num- (Approved by the Office of Management and
ber, and a copy of the alien’s docu- Budget under control number 2105–0508.)
mentation. (If an Agency is unable to
contact the BCIS, it may contact the § 24.209 Relocation payments not con-
FHWA in Washington, DC, Office of sidered as income.
Real Estate Services or Office of Chief No relocation payment received by a
Counsel for a referral to the BCIS.) displaced person under this part shall
(2) If the Agency has reason to be-
be considered as income for the purpose
lieve that the certification of a person
of the Internal Revenue Code of 1954,
who has certified that he or she is a
which has been redesignated as the In-
citizen or national is invalid, the dis-
placing Agency shall request evidence ternal Revenue Code of 1986 (Title 26,
of United States citizenship or nation- U.S. Code), or for the purpose of deter-
ality from such person and, if consid- mining the eligibility or the extent of
ered necessary, verify the accuracy of eligibility of any person for assistance
such evidence with the issuer. under the Social Security Act (42 U.S.
(g) No relocation payments or reloca- Code 301 et seq.) or any other Federal
tion advisory assistance shall be pro- law, except for any Federal law pro-
vided to a person who has not provided viding low-income housing assistance.
the certification described in this sec-
tion or who has been determined to be
not lawfully present in the United
States, unless such person can dem-
241
Subpart D—Payments for Moving necessary moving expenses for moving

and Related Expenses personal property from a mobile home
may be determined based on the cost of
§ 24.301 Payment for actual reasonable one, or a combination of the following
moving and related expenses. methods: (self-moves based on the
(a) General. (1) Any owner-occupant lower of two bids or estimates are not
or tenant who qualifies as a displaced eligible for reimbursement under this
person (defined at § 24.2(a)(9)) and who section. Eligible expenses for moves
moves from a dwelling (including a mo- from a mobile home include those ex-
bile home) or who moves from a busi- penses described in paragraphs (g)(1)
ness, farm or nonprofit organization is through (g)(7) of this section. In addi-
entitled to payment of his or her action to the items in paragraph (a) of
tual moving and related expenses, as this section, the owner-occupant of a
the Agency determines to be reason- mobile home that is moved as personal
able and necessary. property and used as the person’s re-
(2) A non-occupant owner of a rented placement dwelling, is also eligible for
mobile home is eligible for actual cost the moving expenses described in para-
reimbursement under § 24.301 to relo- graphs (g)(8) through (g)(10) of this sec-
cate the mobile home. If the mobile tion.)
home is not acquired as real estate, but (1) Commercial move—moves per-
the homeowner-occupant obtains a re- formed by a professional mover.
placement housing payment under one (2) Self-move—moves that may be per-
of the circumstances described at formed by the displaced person in one
§ 24.502(a)(3), the home-owner occupant or a combination of the following
is not eligible for payment for moving methods:
the mobile home, but may be eligible (i) Fixed Residential Moving Cost
for a payment for moving personal Schedule. (Described in § 24.302.)
property from the mobile home. (ii) Actual cost move. Supported by
(b) Moves from a dwelling. A displaced receipted bills for labor and equipment.
person’s actual, reasonable and nec- Hourly labor rates should not exceed
essary moving expenses for moving per- the cost paid by a commercial mover.
sonal property from a dwelling may be Equipment rental fees should be based
determined based on the cost of one, or on the actual cost of renting the equip-
a combination of the following meth- ment but not exceed the cost paid by a
ods: (Eligible expenses for moves from commercial mover.
a dwelling include the expenses de- (d) Moves from a business, farm or non-
scribed in paragraphs (g)(1) through profit organization. Personal property as
(g)(7) of this section. Self-moves based determined by an inventory from a
on the lower of two bids or estimates business, farm or nonprofit organiza-
are not eligible for reimbursement tion may be moved by one or a com-
under this section.) bination of the following methods: (Eli-
(1) Commercial move—moves per- gible expenses for moves from a busi-
formed by a professional mover. ness, farm or nonprofit organization in-
(2) Self-move—moves that may be per- clude those expenses described in para-
formed by the displaced person in one graphs (g)(1) through (g)(7) of this sec-
or a combination of the following tion and paragraphs (g)(11) through
methods: (g)(18) of this section and § 24.303.)
(i) Fixed Residential Moving Cost (1) Commercial move. Based on the
Schedule. (Described in § 24.302.) lower of two bids or estimates prepared
(ii) Actual cost move. Supported by by a commercial mover. At the Agen-
receipted bills for labor and equipment. cy’s discretion, payment for a low cost
Hourly labor rates should not exceed or uncomplicated move may be based
the cost paid by a commercial mover. on a single bid or estimate.
Equipment rental fees should be based (2) Self-move. A self-move payment
on the actual cost of renting the equip- may be based on one or a combination
ment but not exceed the cost paid by a of the following:
commercial mover. (i) The lower of two bids or estimates
(c) Moves from a mobile home. A dis- prepared by a commercial mover or
placed person’s actual, reasonable and qualified Agency staff person. At the
242
Agency’s discretion, payment for a low (4) Storage of the personal property
cost or uncomplicated move may be for a period not to exceed 12 months,
based on a single bid or estimate; or unless the Agency determines that a
(ii) Supported by receipted bills for longer period is necessary.
labor and equipment. Hourly labor (5) Insurance for the replacement
rates should not exceed the rates paid value of the property in connection
by a commercial mover to employees with the move and necessary storage.
performing the same activity and, (6) The replacement value of property
equipment rental fees should be based lost, stolen, or damaged in the process
on the actual rental cost of the equip- of moving (not through the fault or
ment but not to exceed the cost paid by negligence of the displaced person, his
a commercial mover. or her agent, or employee) where insur-
(e) Personal property only. Eligible ex- ance covering such loss, theft, or dam-
penses for a person who is required to age is not reasonably available.
move personal property from real prop- (7) Other moving-related expenses
erty but is not required to move from that are not listed as ineligible under
a dwelling (including a mobile home), § 24.301(h), as the Agency determines to
business, farm or nonprofit organiza- be reasonable and necessary.
tion include those expenses described (8) The reasonable cost of disassem-
in paragraphs (g)(1) through (g)(7) and bling, moving, and reassembling any
(g)(18) of this section. (See appendix A, appurtenances attached to a mobile
§ 24.301(e).) home, such as porches, decks, skirting,
and awnings, which were not acquired,
(f) Advertising signs. The amount of a
anchoring of the unit, and utility
payment for direct loss of an adver-
‘‘hookup’’ charges.
tising sign, which is personal property
(9) The reasonable cost of repairs and/
shall be the lesser of:
or modifications so that a mobile home
(1) The depreciated reproduction cost can be moved and/or made decent, safe,
of the sign, as determined by the Agen- and sanitary.
cy, less the proceeds from its sale; or (10) The cost of a nonrefundable mo-
(2) The estimated cost of moving the bile home park entrance fee, to the ex-
sign, but with no allowance for storage. tent it does not exceed the fee at a
(g) Eligible actual moving expenses. (1) comparable mobile home park, if the
Transportation of the displaced person person is displaced from a mobile home
and personal property. Transportation park or the Agency determines that
costs for a distance beyond 50 miles are payment of the fee is necessary to ef-
not eligible, unless the Agency deter- fect relocation.
mines that relocation beyond 50 miles (11) Any license, permit, fees or cer-
is justified. tification required of the displaced per-
(2) Packing, crating, unpacking, and son at the replacement location. How-
uncrating of the personal property. ever, the payment may be based on the
(3) Disconnecting, dismantling, re- remaining useful life of the existing li-
moving, reassembling, and reinstalling cense, permit, fees or certification.
relocated household appliances and (12) Professional services as the
other personal property. For busi- Agency determines to be actual, rea-
nesses, farms or nonprofit organiza- sonable and necessary for:
tions this includes machinery, equip- (i) Planning the move of the personal
ment, substitute personal property, property;
and connections to utilities available (ii) Moving the personal property;
within the building; it also includes and
modifications to the personal property, (iii) Installing the relocated personal
including those mandated by Federal, property at the replacement location.
State or local law, code or ordinance, (13) Relettering signs and replacing
necessary to adapt it to the replace- stationery on hand at the time of dis-
ment structure, the replacement site, placement that are made obsolete as a
or the utilities at the replacement site, result of the move.
and modifications necessary to adapt (14) Actual direct loss of tangible per-
the utilities at the replacement site to sonal property incurred as a result of
the personal property. moving or discontinuing the business
243
or farm operation. The payment shall (iii) Time spent searching, based on
consist of the lesser of: reasonable salary or earnings;
(i) The fair market value in place of (iv) Fees paid to a real estate agent
the item, as is for continued use, less or broker to locate a replacement site,
the proceeds from its sale. (To be eligi- exclusive of any fees or commissions
ble for payment, the claimant must related to the purchase of such sites;
make a good faith effort to sell the per- (v) Time spent in obtaining permits
sonal property, unless the Agency de- and attending zoning hearings; and
termines that such effort is not nec- (vi) Time spent negotiating the pur-
essary. When payment for property loss chase of a replacement site based on a
is claimed for goods held for sale, the reasonable salary or earnings.
fair market value shall be based on the (18) Low value/high bulk. When the
cost of the goods to the business, not personal property to be moved is of low
the potential selling prices.); or value and high bulk, and the cost of
(ii) The estimated cost of moving the moving the property would be dis-
item as is, but not including any allow- proportionate to its value in the judg-
ance for storage; or for reconnecting a ment of the displacing Agency, the al-
piece of equipment if the equipment is lowable moving cost payment shall not
in storage or not being used at the ac- exceed the lesser of: The amount which
quired site. (See appendix A, would be received if the property were
§ 24.301(g)(14)(i) and (ii).) If the business sold at the site or the replacement cost
or farm operation is discontinued, the of a comparable quantity delivered to
estimated cost of moving the item the new business location. Examples of
shall be based on a moving distance of personal property covered by this pro-
50 miles. vision include, but are not limited to,
(15) The reasonable cost incurred in stockpiled sand, gravel, minerals, met-
attempting to sell an item that is not als and other similar items of personal
to be relocated. property as determined by the Agency.
(16) Purchase of substitute personal (h) Ineligible moving and related ex-
property. If an item of personal prop- penses. A displaced person is not enti-
erty, which is used as part of a business tled to payment for:
or farm operation is not moved but is (1) The cost of moving any structure
promptly replaced with a substitute or other real property improvement in
item that performs a comparable func- which the displaced person reserved
tion at the replacement site, the dis- ownership. (However, this part does not
placed person is entitled to payment of preclude the computation under
the lesser of: § 24.401(c)(2)(iii));
(i) The cost of the substitute item, (2) Interest on a loan to cover moving
including installation costs of the re- expenses;
placement site, minus any proceeds (3) Loss of goodwill;
from the sale or trade-in of the re- (4) Loss of profits;
placed item; or (5) Loss of trained employees;
(ii) The estimated cost of moving and (6) Any additional operating expenses
reinstalling the replaced item but with of a business or farm operation in-
no allowance for storage. At the Agen- curred because of operating in a new
cy’s discretion, the estimated cost for a location except as provided in
low cost or uncomplicated move may § 24.304(a)(6);
be based on a single bid or estimate. (7) Personal injury;
(17) Searching for a replacement lo- (8) Any legal fee or other cost for pre-
cation. A business or farm operation is paring a claim for a relocation pay-
entitled to reimbursement for actual ment or for representing the claimant
expenses, not to exceed $2,500, as the before the Agency;
Agency determines to be reasonable, (9) Expenses for searching for a re-
which are incurred in searching for a placement dwelling;
replacement location, including: (10) Physical changes to the real
(i) Transportation; property at the replacement location of
(ii) Meals and lodging away from a business or farm operation except as
home; provided in §§ 24.301(g)(3) and 24.304(a);
244
(11) Costs for storage of personal minimal personal possessions who is in

property on real property already occupancy of a dormitory style room
owned or leased by the displaced per- or a person whose residential move is
son, and performed by an Agency at no cost to
(12) Refundable security and utility the person shall be limited to the
deposits. amount stated in the most recent edi-
(i) Notification and inspection (nonresi- tion of the Fixed Residential Moving
dential). The Agency shall inform the Cost Schedule.
displaced person, in writing, of the re-
quirements of this section as soon as § 24.303 Related nonresidential eligible
possible after the initiation of negotia- expenses.
tions. This information may be in- The following expenses, in addition
cluded in the relocation information to those provided by § 24.301 for moving
provided the displaced person as set personal property, shall be provided if
forth in § 24.203. To be eligible for pay- the Agency determines that they are
ments under this section the displaced actual, reasonable and necessary:
person must: (a) Connection to available nearby
(1) Provide the Agency reasonable ad- utilities from the right-of-way to im-
vance notice of the approximate date provements at the replacement site.
of the start of the move or disposition (b) Professional services performed
of the personal property and an inven- prior to the purchase or lease of a re-
tory of the items to be moved. How- placement site to determine its suit-
ever, the Agency may waive this notice ability for the displaced person’s busi-
requirement after documenting its file ness operation including but not lim-
accordingly. ited to, soil testing, feasibility and
(2) Permit the Agency to make rea- marketing studies (excluding any fees
sonable and timely inspections of the or commissions directly related to the
personal property at both the displace- purchase or lease of such site). At the
ment and replacement sites and to discretion of the Agency a reasonable
monitor the move. pre-approved hourly rate may be estab-
(j) Transfer of ownership (nonresiden- lished. (See appendix A, § 24.303(b).)
tial). Upon request and in accordance (c) Impact fees or one time assess-
with applicable law, the claimant shall ments for anticipated heavy utility
transfer to the Agency ownership of usage, as determined necessary by the
any personal property that has not Agency.
been moved, sold, or traded in.
§ 24.304 Reestablishment expenses—
[70 FR 611, Jan. 4, 2005, as amended at 70 FR nonresidential moves.
22611, May 2, 2005]
In addition to the payments available
§ 24.302 Fixed payment for moving ex- under §§ 24.301 and 24.303 of this sub-
penses—residential moves. part, a small business, as defined in
Any person displaced from a dwelling § 24.2(a)(24), farm or nonprofit organiza-
or a seasonal residence or a dormitory tion is entitled to receive a payment,
style room is entitled to receive a fixed not to exceed $10,000, for expenses actu-
moving cost payment as an alternative ally incurred in relocating and reestab-
to a payment for actual moving and re- lishing such small business, farm or
lated expenses under § 24.301. This pay- nonprofit organization at a replace-
ment shall be determined according to ment site.
the Fixed Residential Moving Cost (a) Eligible expenses. Reestablishment
Schedule 3 approved by the Federal expenses must be reasonable and nec-
Highway Administration and published essary, as determined by the Agency.
in the FEDERAL REGISTER on a periodic They include, but are not limited to,
basis. The payment to a person with the following:
(1) Repairs or improvements to the
3 The Fixed Residential Moving Cost
replacement real property as required
Schedule is available at the following URL: by Federal, State or local law, code or
http://www.fhwa.dot.gov//////realestate/ ordinance.
fixsch96.htm. Agencies are cautioned to en- (2) Modifications to the replacement
sure they are using the most recent edition. property to accommodate the business
245
operation or make replacement struc- business is eligible for the payment if

tures suitable for conducting the busi- the Agency determines that:
ness. (1) The business owns or rents per-
(3) Construction and installation sonal property which must be moved in
costs for exterior signing to advertise connection with such displacement and
the business. for which an expense would be incurred
(4) Redecoration or replacement of in such move and, the business vacates
soiled or worn surfaces at the replace- or relocates from its displacement site;
ment site, such as paint, paneling, or (2) The business cannot be relocated
carpeting. without a substantial loss of its exist-
(5) Advertisement of replacement lo- ing patronage (clientele or net earn-
cation. ings). A business is assumed to meet
(6) Estimated increased costs of oper- this test unless the Agency determines
ation during the first 2 years at the re- that it will not suffer a substantial loss
placement site for such items as: of its existing patronage;
(i) Lease or rental charges; (3) The business is not part of a com-
(ii) Personal or real property taxes; mercial enterprise having more than
(iii) Insurance premiums; and three other entities which are not
(iv) Utility charges, excluding impact being acquired by the Agency, and
fees. which are under the same ownership
(7) Other items that the Agency con- and engaged in the same or similar
siders essential to the reestablishment business activities.
of the business. (4) The business is not operated at a
(b) Ineligible expenses. The following displacement dwelling solely for the
is a nonexclusive listing of reestablish- purpose of renting such dwelling to
ment expenditures not considered to be others;
reasonable, necessary, or otherwise eli- (5) The business is not operated at
gible: the displacement site solely for the
(1) Purchase of capital assets, such purpose of renting the site to others;
as, office furniture, filing cabinets, ma- and
chinery, or trade fixtures. (6) The business contributed materi-
(2) Purchase of manufacturing mate- ally to the income of the displaced per-
rials, production supplies, product in- son during the 2 taxable years prior to
ventory, or other items used in the displacement. (See § 24.2(a)(7).)
normal course of the business oper- (b) Determining the number of busi-
ation. nesses. In determining whether two or
(3) Interest on money borrowed to more displaced legal entities con-
make the move or purchase the re- stitute a single business, which is enti-
placement property. tled to only one fixed payment, all per-
(4) Payment to a part-time business tinent factors shall be considered, in-
in the home which does not contribute cluding the extent to which:
materially (defined at § 24.2(a)(7)) to (1) The same premises and equipment
the household income. are shared;
(2) Substantially identical or inter-
§ 24.305 Fixed payment for moving ex- related business functions are carried
penses—nonresidential moves. out and business and financial affairs
(a) Business. A displaced business are commingled;
may be eligible to choose a fixed pay- (3) The entities are held out to the
ment in lieu of the payments for actual public, and to those customarily deal-
moving and related expenses, and ac- ing with them, as one business; and
tual reasonable reestablishment ex- (4) The same person or closely related
penses provided by §§ 24.301, 24.303 and persons own, control, or manage the af-
24.304. Such fixed payment, except for fairs of the entities.
payment to a nonprofit organization, (c) Farm operation. A displaced farm
shall equal the average annual net operation (defined at § 24.2(a)(12)) may
earnings of the business, as computed choose a fixed payment, in lieu of the
in accordance with paragraph (e) of payments for actual moving and re-
this section, but not less than $1,000 lated expenses and actual reasonable
nor more than $20,000. The displaced reestablishment expenses, in an
246
amount equal to its average annual net earnings through income tax returns,
earnings as computed in accordance certified financial statements, or other
with paragraph (e) of this section, but reasonable evidence, which the Agency
not less than $1,000 nor more than determines is satisfactory. (See appen-
$20,000. In the case of a partial acquisi- dix A, § 24.305(e).)
tion of land, which was a farm oper-
ation before the acquisition, the fixed § 24.306 Discretionary utility reloca-
payment shall be made only if the tion payments.
Agency determines that: (a) Whenever a program or project
(1) The acquisition of part of the land undertaken by a displacing Agency
caused the operator to be displaced causes the relocation of a utility facil-
from the farm operation on the remain- ity (see § 24.2(a)(31)) and the relocation
ing land; or of the facility creates extraordinary
(2) The partial acquisition caused a expenses for its owner, the displacing
substantial change in the nature of the Agency may, at its option, make a re-
farm operation. location payment to the owner for all
(d) Nonprofit organization. A displaced or part of such expenses, if the fol-
nonprofit organization may choose a lowing criteria are met:
fixed payment of $1,000 to $20,000, in (1) The utility facility legally occu-
lieu of the payments for actual moving pies State or local government prop-
and related expenses and actual reason- erty, or property over which the State
able reestablishment expenses, if the or local government has an easement
Agency determines that it cannot be or right-of-way;
relocated without a substantial loss of (2) The utility facility’s right of oc-
existing patronage (membership or cli- cupancy thereon is pursuant to State
entele). A nonprofit organization is as- law or local ordinance specifically au-
sumed to meet this test, unless the thorizing such use, or where such use
Agency demonstrates otherwise. Any and occupancy has been granted
payment in excess of $1,000 must be through a franchise, use and occupancy
supported with financial statements permit, or other similar agreement;
for the two 12-month periods prior to (3) Relocation of the utility facility
the acquisition. The amount to be used is required by and is incidental to the
for the payment is the average of 2 primary purpose of the project or pro-
years annual gross revenues less ad- gram undertaken by the displacing
ministrative expenses. (See appendix Agency;
A, § 24.305(d).) (4) There is no Federal law, other
(e) Average annual net earnings of a than the Uniform Act, which clearly
business or farm operation. The average establishes a policy for the payment of
annual net earnings of a business or utility moving costs that is applicable
farm operation are one-half of its net to the displacing Agency’s program or
earnings before Federal, State, and project; and
local income taxes during the 2 taxable (5) State or local government reim-
years immediately prior to the taxable bursement for utility moving costs or
year in which it was displaced. If the payment of such costs by the dis-
business or farm was not in operation placing Agency is in accordance with
for the full 2 taxable years prior to dis- State law.
placement, net earnings shall be based (b) For the purposes of this section,
on the actual period of operation at the the term extraordinary expenses means
displacement site during the 2 taxable those expenses which, in the opinion of
years prior to displacement, projected the displacing Agency, are not routine
to an annual rate. Average annual net or predictable expenses relating to the
earnings may be based upon a different utility’s occupancy of rights-of-way,
period of time when the Agency deter- and are not ordinarily budgeted as op-
mines it to be more equitable. Net erating expenses, unless the owner of
earnings include any compensation ob- the utility facility has explicitly and
tained from the business or farm oper- knowingly agreed to bear such ex-
ation by its owner, the owner’s spouse, penses as a condition for use of the
and dependents. The displaced person property, or has voluntarily agreed to
shall furnish the Agency proof of net be responsible for such expenses.
247
(c) A relocation payment to a utility (1) The amount by which the cost of
facility owner for moving costs under a replacement dwelling exceeds the ac-
this section may not exceed the cost to quisition cost of the displacement
functionally restore the service dis- dwelling, as determined in accordance
rupted by the federally-assisted pro- with paragraph (c) of this section;
gram or project, less any increase in (2) The increased interest costs and
value of the new facility and salvage other debt service costs which are in-
value of the old facility. The displacing curred in connection with the mort-
Agency and the utility facility owner gage(s) on the replacement dwelling, as
shall reach prior agreement on the na- determined in accordance with para-
ture of the utility relocation work to graph (d) of this section; and
be accomplished, the eligibility of the (3) The reasonable expenses inci-
work for reimbursement, the respon- dental to the purchase of the replace-
sibilities for financing and accom- ment dwelling, as determined in ac-
plishing the work, and the method of cordance with paragraph (e) of this sec-
accumulating costs and making pay- tion.
ment. (See appendix A, § 24.306.) (c) Price differential—(1) Basic com-
putation. The price differential to be
Subpart E—Replacement Housing paid under paragraph (b)(1) of this sec-
Payments tion is the amount which must be
added to the acquisition cost of the dis-
§ 24.401 Replacement housing payment placement dwelling and site (see
for 180-day homeowner-occupants. § 24.2(a)(11)) to provide a total amount
(a) Eligibility. A displaced person is el- equal to the lesser of:
igible for the replacement housing pay- (i) The reasonable cost of a com-
ment for a 180-day homeowner-occu- parable replacement dwelling as deter-
pant if the person: mined in accordance with § 24.403(a); or
(1) Has actually owned and occupied (ii) The purchase price of the decent,
the displacement dwelling for not less safe, and sanitary replacement dwell-
than 180 days immediately prior to the ing actually purchased and occupied by
initiation of negotiations; and the displaced person.
(2) Purchases and occupies a decent, (2) Owner retention of displacement
safe, and sanitary replacement dwell- dwelling. If the owner retains owner-
ing within one year after the later of ship of his or her dwelling, moves it
the following dates (except that the from the displacement site, and reoccu-
Agency may extend such one year pe- pies it on a replacement site, the pur-
riod for good cause): chase price of the replacement dwelling
(i) The date the displaced person re- shall be the sum of:
ceives final payment for the displace- (i) The cost of moving and restoring
ment dwelling or, in the case of con- the dwelling to a condition comparable
demnation, the date the full amount of to that prior to the move;
the estimate of just compensation is (ii) The cost of making the unit a de-
deposited in the court; or cent, safe, and sanitary replacement
(ii) The date the displacing Agency’s dwelling (defined at § 24.2(a)(8)); and
obligation under § 24.204 is met. (iii) The current fair market value
(b) Amount of payment. The replace- for residential use of the replacement
ment housing payment for an eligible dwelling site (see appendix A,
180-day homeowner-occupant may not § 24.401(c)(2)(iii)), unless the claimant
exceed $22,500. (See also § 24.404.) The rented the displacement site and there
payment under this subpart is limited is a reasonable opportunity for the
to the amount necessary to relocate to claimant to rent a suitable replace-
a comparable replacement dwelling ment site; and
within one year from the date the dis- (iv) The retention value of the dwell-
placed homeowner-occupant is paid for ing, if such retention value is reflected
the displacement dwelling, or the date in the ‘‘acquisition cost’’ used when
a comparable replacement dwelling is computing the replacement housing
made available to such person, which- payment.
ever is later. The payment shall be the (d) Increased mortgage interest costs.
sum of: The displacing Agency shall determine
248
the factors to be used in computing the (iii) The Agency determines them to
amount to be paid to a displaced person be necessary; and
under paragraph (b)(2) of this section. (iv) The computation of such points
The payment for increased mortgage and fees shall be based on the unpaid
interest cost shall be the amount mortgage balance on the displacement
which will reduce the mortgage bal- dwelling, less the amount determined
ance on a new mortgage to an amount for the reduction of the mortgage bal-
which could be amortized with the ance under this section.
same monthly payment for principal (5) The displaced person shall be ad-
and interest as that for the mort- vised of the approximate amount of
gage(s) on the displacement dwelling. this payment and the conditions that
In addition, payments shall include must be met to receive the payment as
other debt service costs, if not paid as soon as the facts relative to the per-
incidental costs, and shall be based son’s current mortgage(s) are known
only on bona fide mortgages that were and the payment shall be made avail-
valid liens on the displacement dwell- able at or near the time of closing on
ing for at least 180 days prior to the the replacement dwelling in order to
initiation of negotiations. Paragraphs reduce the new mortgage as intended.
(d)(1) through (d)(5) of this section (e) Incidental expenses. The incidental
shall apply to the computation of the expenses to be paid under paragraph
increased mortgage interest costs pay- (b)(3) of this section or § 24.402(c)(1) are
ment, which payment shall be contin- those necessary and reasonable costs
gent upon a mortgage being placed on actually incurred by the displaced per-
the replacement dwelling. son incident to the purchase of a re-
(1) The payment shall be based on the placement dwelling, and customarily
unpaid mortgage balance(s) on the dis- paid by the buyer, including:
placement dwelling; however, in the (1) Legal, closing, and related costs,
event the displaced person obtains a including those for title search, pre-
smaller mortgage than the mortgage paring conveyance instruments, notary
balance(s) computed in the buydown fees, preparing surveys and plats, and
determination, the payment will be recording fees.
prorated and reduced accordingly. (See (2) Lender, FHA, or VA application
appendix A, § 24.401(d).) In the case of a and appraisal fees.
home equity loan the unpaid balance (3) Loan origination or assumption
shall be that balance which existed 180 fees that do not represent prepaid in-
days prior to the initiation of negotia- terest.
tions or the balance on the date of ac- (4) Professional home inspection, cer-
quisition, whichever is less. tification of structural soundness, and
(2) The payment shall be based on the termite inspection.
remaining term of the mortgage(s) on (5) Credit report.
the displacement dwelling or the term (6) Owner’s and mortgagee’s evidence
of the new mortgage, whichever is of title, e.g., title insurance, not to ex-
shorter. ceed the costs for a comparable re-
(3) The interest rate on the new placement dwelling.
mortgage used in determining the (7) Escrow agent’s fee.
amount of the payment shall not ex- (8) State revenue or documentary
ceed the prevailing fixed interest rate stamps, sales or transfer taxes (not to
for conventional mortgages currently exceed the costs for a comparable re-
charged by mortgage lending institu- placement dwelling).
tions in the area in which the replace- (9) Such other costs as the Agency
ment dwelling is located. determine to be incidental to the pur-
(4) Purchaser’s points and loan origi- chase.
nation or assumption fees, but not sell- (f) Rental assistance payment for 180-
er’s points, shall be paid to the extent: day homeowner. A 180-day homeowner-
(i) They are not paid as incidental ex- occupant, who could be eligible for a
penses; replacement housing payment under
(ii) They do not exceed rates normal paragraph (a) of this section but elects
to similar real estate transactions in to rent a replacement dwelling, is eligi-
the area; ble for a rental assistance payment.
249
The amount of the rental assistance tracting the base monthly rental for
payment is based on a determination of the displacement dwelling from the
market rent for the acquired dwelling lesser of:
compared to a comparable rental (i) The monthly rent and estimated
dwelling available on the market. The average monthly cost of utilities for a
difference, if any, is computed in ac- comparable replacement dwelling; or
cordance with § 24.402(b)(1), except that (ii) The monthly rent and estimated
the limit of $5,250 does not apply, and average monthly cost of utilities for
disbursed in accordance with the decent, safe, and sanitary replace-
§ 24.402(b)(3). Under no circumstances ment dwelling actually occupied by the
would the rental assistance payment displaced person.
exceed the amount that could have (2) Base monthly rental for displace-
been received under § 24.401(b)(1) had ment dwelling. The base monthly rental
the 180-day homeowner elected to pur- for the displacement dwelling is the
chase and occupy a comparable re- lesser of:
placement dwelling. (i) The average monthly cost for rent
[70 FR 611, Jan. 4, 2005, as amended at 70 FR and utilities at the displacement dwell-
22611, May 2, 2005] ing for a reasonable period prior to dis-
placement, as determined by the Agen-
§ 24.402 Replacement housing payment cy (for an owner-occupant, use the fair
for 90-day occupants. market rent for the displacement
(a) Eligibility. A tenant or owner-oc- dwelling. For a tenant who paid little
cupant displaced from a dwelling is en- or no rent for the displacement dwell-
titled to a payment not to exceed $5,250 ing, use the fair market rent, unless its
for rental assistance, as computed in use would result in a hardship because
accordance with paragraph (b) of this of the person’s income or other cir-
section, or downpayment assistance, as cumstances);
computed in accordance with para- (ii) Thirty (30) percent of the dis-
graph (c) of this section, if such displaced person’s average monthly gross
placed person: household income if the amount is
(1) Has actually and lawfully occu- classified as ‘‘low income’’ by the U.S.
pied the displacement dwelling for at Department of Housing and Urban De-
least 90 days immediately prior to the velopment’s Annual Survey of Income
initiation of negotiations; and Limits for the Public Housing and Sec-
(2) Has rented, or purchased, and oc- tion 8 Programs 4. The base monthly
cupied a decent, safe, and sanitary re- rental shall be established solely on
placement dwelling within 1 year (un- the criteria in paragraph (b)(2)(i) of
less the Agency extends this period for this section for persons with income
good cause) after: exceeding the survey’s ‘‘low income’’
(i) For a tenant, the date he or she limits, for persons refusing to provide
moves from the displacement dwelling; appropriate evidence of income, and for
or persons who are dependents. A full
(ii) For an owner-occupant, the later time student or resident of an institu-
of: tion may be assumed to be a depend-
(A) The date he or she receives final ent, unless the person demonstrates
payment for the displacement dwell- otherwise; or,
ing, or in the case of condemnation, (iii) The total of the amounts des-
the date the full amount of the esti- ignated for shelter and utilities if the
mate of just compensation is deposited displaced person is receiving a welfare
with the court; or assistance payment from a program
(B) The date he or she moves from that designates the amounts for shelter
the displacement dwelling. and utilities.
(b) Rental assistance payment—(1)
Amount of payment. An eligible dis- 4 The U.S. Department of Housing and
placed person who rents a replacement Urban Development’s Public Housing and
dwelling is entitled to a payment not Section 8 Program Income Limits are up-
to exceed $5,250 for rental assistance. dated annually and are available on FHWA’s
(See § 24.404.) Such payment shall be 42 Web site at http://www.fhwa.dot.gov/realestate/
times the amount obtained by sub- ua/ualic.htm.
250
(3) Manner of disbursement. A rental (2) If the site of the comparable re-
assistance payment may, at the Agen- placement dwelling lacks a major exte-
cy’s discretion, be disbursed in either a rior attribute of the displacement
lump sum or in installments. However, dwelling site, (e.g., the site is signifi-
except as limited by § 24.403(f), the full cantly smaller or does not contain a
amount vests immediately, whether or swimming pool), the value of such at-
not there is any later change in the tribute shall be subtracted from the ac-
person’s income or rent, or in the con- quisition cost of the displacement
dition or location of the person’s hous- dwelling for purposes of computing the
ing. payment.
(c) Downpayment assistance payment— (3) If the acquisition of a portion of a
(1) Amount of payment. An eligible dis- typical residential property causes the
placed person who purchases a replace- displacement of the owner from the
ment dwelling is entitled to a down- dwelling and the remainder is a
payment assistance payment in the buildable residential lot, the Agency
amount the person would receive under may offer to purchase the entire prop-
paragraph (b) of this section if the per- erty. If the owner refuses to sell the re-
son rented a comparable replacement mainder to the Agency, the fair market
dwelling. At the Agency’s discretion, a value of the remainder may be added to
downpayment assistance payment that the acquisition cost of the displace-
is less than $5,250 may be increased to ment dwelling for purposes of com-
any amount not to exceed $5,250. How- puting the replacement housing pay-
ever, the payment to a displaced home- ment.
owner shall not exceed the amount the (4) To the extent feasible, comparable
owner would receive under § 24.401(b) if replacement dwellings shall be selected
he or she met the 180-day occupancy re- from the neighborhood in which the
quirement. If the Agency elects to pro- displacement dwelling was located or,
vide the maximum payment of $5,250 as if that is not possible, in nearby or
a downpayment, the Agency shall similar neighborhoods where housing
apply this discretion in a uniform and costs are generally the same or higher.
consistent manner, so that eligible dis- (5) Multiple occupants of one dis-
placed persons in like circumstances placement dwelling. If two or more oc-
are treated equally. A displaced person cupants of the displacement dwelling
move to separate replacement dwell-
eligible to receive a payment as a 180-
ings, each occupant is entitled to a rea-
day owner-occupant under § 24.401(a) is
sonable prorated share, as determined
not eligible for this payment. (See ap-
by the Agency, of any relocation pay-
pendix A, § 24.402(c).)
ments that would have been made if
(2) Application of payment. The full the occupants moved together to a
amount of the replacement housing comparable replacement dwelling.
payment for downpayment assistance However, if the Agency determines
must be applied to the purchase price that two or more occupants main-
of the replacement dwelling and retained separate households within the
lated incidental expenses. same dwelling, such occupants have
separate entitlements to relocation
§ 24.403 Additional rules governing re-
placement housing payments. payments.
(6) Deductions from relocation pay-
(a) Determining cost of comparable re- ments. An Agency shall deduct the
placement dwelling. The upper limit of a amount of any advance relocation pay-
replacement housing payment shall be ment from the relocation payment(s)
based on the cost of a comparable re- to which a displaced person is other-
placement dwelling (defined at wise entitled. The Agency shall not
§ 24.2(a)(6)). withhold any part of a relocation pay-
(1) If available, at least three comment to a displaced person to satisfy
parable replacement dwellings shall be an obligation to any other creditor.
examined and the payment computed (7) Mixed-use and multifamily prop-
on the basis of the dwelling most near- erties. If the displacement dwelling
ly representative of, and equal to, or was part of a property that contained
better than, the displacement dwelling. another dwelling unit and/or space used
251
for nonresidential purposes, and/or is the eligibility criteria for such pay-
located on a lot larger than typical for ments, including purchase and occu-
residential purposes, only that portion pancy within the prescribed 1-year pe-
of the acquisition payment which is ac- riod. Any portion of the rental assist-
tually attributable to the displacement ance payment that has been disbursed
dwelling shall be considered the acqui- shall be deducted from the payment
sition cost when computing the re- computed under § 24.401 or § 24.402(c).
placement housing payment. (f) Payment after death. A replace-
(b) Inspection of replacement dwelling. ment housing payment is personal to
Before making a replacement housing the displaced person and upon his or
payment or releasing the initial pay- her death the undisbursed portion of
ment from escrow, the Agency or its any such payment shall not be paid to
designated representative shall inspect the heirs or assigns, except that:
the replacement dwelling and deter- (1) The amount attributable to the
mine whether it is a decent, safe, and displaced person’s period of actual oc-
sanitary dwelling as defined at
cupancy of the replacement housing
§ 24.2(a)(8).
shall be paid.
(c) Purchase of replacement dwelling. A
displaced person is considered to have (2) Any remaining payment shall be
met the requirement to purchase a re- disbursed to the remaining family
placement dwelling, if the person: members of the displaced household in
(1) Purchases a dwelling; any case in which a member of a dis-
(2) Purchases and rehabilitates a sub- placed family dies.
standard dwelling; (3) Any portion of a replacement
(3) Relocates a dwelling which he or housing payment necessary to satisfy
she owns or purchases; the legal obligation of an estate in con-
(4) Constructs a dwelling on a site he nection with the selection of a replace-
or she owns or purchases; ment dwelling by or on behalf of a de-
(5) Contracts for the purchase or con- ceased person shall be disbursed to the
struction of a dwelling on a site pro- estate.
vided by a builder or on a site the per- (g) Insurance proceeds. To the extent
son owns or purchases; or necessary to avoid duplicate compensa-
(6) Currently owns a previously pur- tion, the amount of any insurance pro-
chased dwelling and site, valuation of ceeds received by a person in connec-
which shall be on the basis of current tion with a loss to the displacement
fair market value. dwelling due to a catastrophic occur-
(d) Occupancy requirements for dis- rence (fire, flood, etc.) shall be included
placement or replacement dwelling. No in the acquisition cost of the displace-
person shall be denied eligibility for a ment dwelling when computing the
replacement housing payment solely price differential. (See § 24.3.)
because the person is unable to meet
the occupancy requirements set forth [70 FR 611, Jan. 4, 2005, as amended at 70 FR
in these regulations for a reason be- 22611, May 2, 2005]
yond his or her control, including:
§ 24.404 Replacement housing of last
(1) A disaster, an emergency, or an resort.
imminent threat to the public health
or welfare, as determined by the Presi- (a) Determination to provide replace-
dent, the Federal Agency funding the ment housing of last resort. Whenever a
project, or the displacing Agency; or program or project cannot proceed on a
(2) Another reason, such as a delay in timely basis because comparable re-
the construction of the replacement placement dwellings are not available
dwelling, military duty, or hospital within the monetary limits for owners
stay, as determined by the Agency. or tenants, as specified in § 24.401 or
(e) Conversion of payment. A displaced § 24.402, as appropriate, the Agency
person who initially rents a replace- shall provide additional or alternative
ment dwelling and receives a rental as- assistance under the provisions of this
sistance payment under § 24.402(b) is el- subpart. Any decision to provide last
igible to receive a payment under resort housing assistance must be ade-
§ 24.401 or § 24.402(c) if he or she meets quately justified either:
252
(1) On a case-by-case basis, for good provided in installments or in a lump

cause, which means that appropriate sum at the Agency’s discretion.
consideration has been given to: (ii) Rehabilitation of and/or additions
(i) The availability of comparable re- to an existing replacement dwelling.
placement housing in the program or (iii) The construction of a new re-
project area; placement dwelling.
(ii) The resources available to pro- (iv) The provision of a direct loan,
vide comparable replacement housing; which requires regular amortization or
and deferred repayment. The loan may be
(iii) The individual circumstances of unsecured or secured by the real prop-
the displaced person, or erty. The loan may bear interest or be
(2) By a determination that: interest-free.
(i) There is little, if any, comparable (v) The relocation and, if necessary,
replacement housing available to dis- rehabilitation of a dwelling.
placed persons within an entire pro- (vi) The purchase of land and/or a re-
gram or project area; and, therefore, placement dwelling by the displacing
last resort housing assistance is nec- Agency and subsequent sale or lease to,
essary for the area as a whole; or exchange with a displaced person.
(ii) A program or project cannot be (vii) The removal of barriers for per-
advanced to completion in a timely sons with disabilities.
manner without last resort housing as- (2) Under special circumstances, con-
sistance; and sistent with the definition of a com-
(iii) The method selected for pro- parable replacement dwelling, modified
viding last resort housing assistance is methods of providing replacement
cost effective, considering all elements, housing of last resort permit consider-
which contribute to total program or ation of replacement housing based on
project costs. space and physical characteristics dif-
(b) Basic rights of persons to be dis- ferent from those in the displacement
placed. Notwithstanding any provision dwelling (see appendix A, § 24.404(c)), in-
of this subpart, no person shall be re- cluding upgraded, but smaller replace-
quired to move from a displacement ment housing that is decent, safe, and
dwelling unless comparable replace- sanitary and adequate to accommodate
ment housing is available to such per- individuals or families displaced from
son. No person may be deprived of any marginal or substandard housing with
rights the person may have under the probable functional obsolescence. In no
Uniform Act or this part. The Agency event, however, shall a displaced per-
shall not require any displaced person son be required to move into a dwelling
to accept a dwelling provided by the that is not functionally equivalent in
Agency under these procedures (unless accordance with § 24.2(a)(6)(ii) of this
the Agency and the displaced person part.
have entered into a contract to do so) (3) The Agency shall provide assist-
in lieu of any acquisition payment or ance under this subpart to a displaced
any relocation payment for which the person who is not eligible to receive a
person may otherwise be eligible. replacement housing payment under
(c) Methods of providing comparable re- §§ 24.401 and 24.402 because of failure to
placement housing. Agencies shall have meet the length of occupancy require-
broad latitude in implementing this ment when comparable replacement
subpart, but implementation shall be rental housing is not available at rent-
for reasonable cost, on a case-by-case al rates within the displaced person’s
basis unless an exception to case-by- financial means. (See
case analysis is justified for an entire § 24.2(a)(6)(viii)(C).) Such assistance
project. shall cover a period of 42 months.
(1) The methods of providing replace-
ment housing of last resort include, Subpart F—Mobile Homes
but are not limited to:
(i) A replacement housing payment § 24.501 Applicability.
in excess of the limits set forth in (a) General. This subpart describes
§ 24.401 or § 24.402. A replacement hous- the requirements governing the provi-
ing payment under this section may be sion of replacement housing payments
253
to a person displaced from a mobile (3) The Agency acquires the mobile
home and/or mobile home site who home as real estate, or acquires the
meets the basic eligibility require- mobile home site from the displaced
ments of this part. Except as modified owner, or the mobile home is personal
by this subpart, such a displaced per- property but the owner is displaced
son is entitled to a moving expense from the mobile home because the
payment in accordance with subpart D Agency determines that the mobile
of this part and a replacement housing home:
payment in accordance with subpart E (i) Is not, and cannot economically be
of this part to the same extent and sub- made decent, safe, and sanitary;
ject to the same requirements as per- (ii) Cannot be relocated without sub-
sons displaced from conventional stantial damage or unreasonable cost;
dwellings. Moving cost payments to (iii) Cannot be relocated because
persons occupying mobile homes are there is no available comparable re-
covered in § 24.301(g)(1) through (g)(10). placement site; or
(b) Partial acquisition of mobile home (iv) Cannot be relocated because it
park. The acquisition of a portion of a does not meet mobile home park en-
mobile home park property may leave trance requirements.
a remaining part of the property that (b) Replacement housing payment com-
is not adequate to continue the oper- putation for a 180-day owner that is dis-
ation of the park. If the Agency deter- placed from a mobile home. The replace-
mines that a mobile home located in ment housing payment for an eligible
the remaining part of the property displaced 180-day owner is computed as
must be moved as a direct result of the described at § 24.401(b) incorporating
project, the occupant of the mobile the following, as applicable:
home shall be considered to be a dis- (1) If the Agency acquires the mobile
placed person who is entitled to reloca- home as real estate and/or acquires the
tion payments and other assistance owned site, the acquisition cost used to
under this part. compute the price differential payment
is the actual amount paid to the owner
§ 24.502 Replacement housing payment as just compensation for the acquisi-
for 180-day mobile homeowner dis- tion of the mobile home, and/or site, if
placed from a mobile home, and/or owned by the displaced mobile home-
from the acquired mobile home site.
owner.
(a) Eligibility. An owner-occupant dis- (2) If the Agency does not purchase
placed from a mobile home or site is the mobile home as real estate but the
entitled to a replacement housing pay- owner is determined to be displaced
ment, not to exceed $22,500, under from the mobile home and eligible for
§ 24.401 if: a replacement housing payment based
(1) The person occupied the mobile on paragraph (a)(1)(iii) of this section,
home on the displacement site for at the eligible price differential payment
least 180 days immediately before: for the purchase of a comparable re-
(i) The initiation of negotiations to placement mobile home, is the lesser of
acquire the mobile home, if the person the displaced mobile homeowner’s net
owned the mobile home and the mobile cost to purchase a replacement mobile
home is real property; home (i.e., purchase price of the re-
(ii) The initiation of negotiations to placement mobile home less trade-in or
acquire the mobile home site if the mo- sale proceeds of the displacement mo-
bile home is personal property, but the bile home); or, the cost of the Agency’s
person owns the mobile home site; or selected comparable mobile home less
(iii) The date of the Agency’s written the Agency’s estimate of the salvage or
notification to the owner-occupant trade-in value for the mobile home
that the owner is determined to be dis- from which the person is displaced.
placed from the mobile home as de- (3) If a comparable replacement mo-
scribed in paragraphs (a)(3)(i) through bile home site is not available, the
(iv) of this section. price differential payment shall be
(2) The person meets the other basic computed on the basis of the reason-
eligibility requirements at § 24.401(a)(2); able cost of a conventional comparable
and replacement dwelling.
254
(c) Rental assistance payment for a 180- Subpart G—Certification

day owner-occupant that is displaced
from a leased or rented mobile home site. § 24.601 Purpose.
If the displacement mobile home site is This subpart permits a State Agency
leased or rented, a displaced 180-day to fulfill its responsibilities under the
owner-occupant is entitled to a rental Uniform Act by certifying that it shall
assistance payment computed as de- operate in accordance with State laws
scribed in § 24.402(b). This rental assist- and regulations which shall accomplish
ance payment may be used to lease a the purpose and effect of the Uniform
replacement site; may be applied to the Act, in lieu of providing the assurances
purchase price of a replacement site; or required by § 24.4 of this part.
may be applied, with any replacement
§ 24.602 Certification application.
housing payment attributable to the
mobile home, to the purchase of a re- An Agency wishing to proceed on the
placement mobile home or conven- basis of a certification may request an
tional decent, safe and sanitary dwell- application for certification from the
Lead Agency Director, Office of Real
ing.
Estate Services, HEPR–1, Federal
(d) Owner-occupant not displaced from Highway Administration, 400 Seventh
the mobile home. If the Agency deter- St, SW., Washington, DC 20590. The
mines that a mobile home is personal completed application for certification
property and may be relocated to a must be approved by the governor of
comparable replacement site, but the the State, or the governor’s designee,
owner-occupant elects not to do so, the and must be coordinated with the Fed-
owner is not entitled to a replacement eral funding Agency, in accordance
housing payment for the purchase of a with application procedures.
replacement mobile home. However,
the owner is eligible for moving costs § 24.603 Monitoring and corrective ac-
tion.
described at § 24.301 and any replace-
ment housing payment for the pur- (a) The Federal Lead Agency shall, in
chase or rental of a comparable site as coordination with other Federal Agen-
described in this section or § 24.503 as cies, monitor from time to time State
applicable. Agency implementation of programs or
projects conducted under the certifi-
§ 24.503 Replacement housing payment cation process and the State Agency
for 90-day mobile home occupants. shall make available any information
required for this purpose.
A displaced tenant or owner-occu- (b) The Lead Agency may require
pant of a mobile home and/or site is el- periodic information or data from af-
igible for a replacement housing pay- fected Federal or State Agencies.
ment, not to exceed $5,250, under (c) A Federal Agency may, after con-
§ 24.402 if: sultation with the Lead Agency, and
(a) The person actually occupied the notice to and consultation with the
displacement mobile home on the dis- governor, or his or her designee, re-
placement site for at least 90 days im- scind any previous approval provided
mediately prior to the initiation of ne- under this subpart if the certifying
gotiations; State Agency fails to comply with its
(b) The person meets the other basic certification or with applicable State
eligibility requirements at § 24.402(a); law and regulations. The Federal Agen-
and cy shall initiate consultation with the
(c) The Agency acquires the mobile Lead Agency at least 30 days prior to
home and/or mobile home site, or the any decision to rescind approval of a
certification under this subpart. The
mobile home is not acquired by the
Lead Agency will also inform other
Agency but the Agency determines
Federal Agencies, which have accepted
that the occupant is displaced from the
a certification under this subpart from
mobile home because of one of the cir- the same State Agency, and will take
cumstances described at § 24.502(a)(3). whatever other action that may be ap-
propriate.
255
(d) Section 103(b)(2) of the Uniform Section 24.2(a)(6)(ix). A public housing unit
Act, as amended, requires that the may qualify as a comparable replacement
head of the Lead Agency report bienni- dwelling only for a person displaced from a
public housing unit. A privately owned
ally to the Congress on State Agency dwelling with a housing program subsidy
implementation of section 103. To en- tied to the unit may qualify as a comparable
able adequate preparation of the pre- replacement dwelling only for a person dis-
scribed biennial report, the Lead Agen- placed from a similarly subsidized unit or
cy may require periodic information or public housing.
data from affected Federal or State A housing program subsidy that is paid to
Agencies. a person (not tied to the building), such as a
HUD Section 8 Housing Voucher Program,
APPENDIX A TO PART 24—ADDITIONAL may be reflected in an offer of a comparable
replacement dwelling to a person receiving a
INFORMATION similar subsidy or occupying a privately
This appendix provides additional informa- owned subsidized unit or public housing unit
tion to explain the intent of certain provi- before displacement.
sions of this part. However, nothing in this part prohibits an
Agency from offering, or precludes a person
SUBPART A—GENERAL from accepting, assistance under a govern-
ment housing program, even if the person did
Section 24.2 Definitions and Acronyms not receive similar assistance before dis-
Section 24.2(a)(6) Definition of comparable replacement. However, the Agency is obligated
placement dwelling. The requirement in to inform the person of his or her options
§ 24.2(a)(6)(ii) that a comparable replacement under this part. (If a person accepts assist-
dwelling be ‘‘functionally equivalent’’ to the ance under a government housing assistance
displacement dwelling means that it must program, the rules of that program gov-
perform the same function, and provide the erning the size of the dwelling apply, and the
same utility. While it need not possess every rental assistance payment under § 24.402
feature of the displacement dwelling, the would be computed on the basis of the per-
principal features must be present. son’s actual out-of-pocket cost for the re-
For example, if the displacement dwelling placement housing.)
contains a pantry and a similar dwelling is Section 24.2(a)(8)(ii) Decent, Safe and Sani-
not available, a replacement dwelling with tary. Many local housing and occupancy
ample kitchen cupboards may be acceptable. codes require the abatement of deteriorating
Insulated and heated space in a garage might paint, including lead-based paint and lead-
prove an adequate substitute for basement based paint dust, in protecting the public
workshop space. A dining area may sub- health and safety. Where such standards
stitute for a separate dining room. Under exist, they must be honored. Even where
some circumstances, attic space could sub- local law does not mandate adherence to
stitute for basement space for storage pur- such standards, it is strongly recommended
poses, and vice versa. that they be considered as a matter of public
Only in unusual circumstances may a com- policy.
parable replacement dwelling contain fewer Section 24.2(a)(8)(vii) Persons with a dis-
rooms or, consequentially, less living space ability. Reasonable accommodation of a dis-
than the displacement dwelling. Such may placed person with a disability at the re-
be the case when a decent, safe, and sanitary placement dwelling means the Agency is re-
replacement dwelling (which by definition is quired to address persons with a physical im-
‘‘adequate to accommodate’’ the displaced pairment that substantially limits one or
person) may be found to be ‘‘functionally more of the major life activities. In these
equivalent’’ to a larger but very run-down situations, reasonable accommodation
substandard displacement dwelling. Another should include the following at a minimum:
example is when a displaced person accepts Doors of adequate width; ramps or other as-
an offer of government housing assistance sistance devices to traverse stairs and access
and the applicable requirements of such bathtubs, shower stalls, toilets and sinks;
housing assistance program require that the storage cabinets, vanities, sink and mirrors
displaced person occupy a dwelling that has at appropriate heights. Kitchen accommoda-
fewer rooms or less living space than the dis- tions will include sinks and storage cabinets
placement dwelling. built at appropriate heights for access. The
Section 24.2(a)(6)(vii). The definition of com- Agency shall also consider other items that
parable replacement dwelling requires that a may be necessary, such as physical modifica-
comparable replacement dwelling for a per- tion to a unit, based on the displaced per-
son who is not receiving assistance under son’s needs.
any government housing program before dis- Section 24.2(a)(9)(ii)(D) Persons not displaced.
placement must be currently available on Paragraph (a)(9)(ii)(D) of this section recog-
the private market without any subsidy nizes that there are circumstances where the
under a government housing program. acquisition, rehabilitation or demolition of
256
real property takes place without the intent under Superfund may differ slightly in that
or necessity that an occupant of the prop- temporary relocation may precede acquisi-
erty be permanently displaced. Because such tion. Superfund is a program designed to
occupants are not considered ‘‘displaced per- clean up hazardous waste sites. When such a
sons’’ under this part, great care must be ex- site is discovered, it may be necessary, in
ercised to ensure that they are treated fairly certain limited circumstances, to alert indi-
and equitably. For example, if the tenant-oc- vidual owners and tenants to potential
cupant of a dwelling will not be displaced, health or safety threats and to offer to tem-
but is required to relocate temporarily in porarily relocate them while additional in-
connection with the project, the temporarily formation is gathered. If a decision is later
occupied housing must be decent, safe, and made to permanently relocate such persons,
sanitary and the tenant must be reimbursed those who had been temporarily relocated
for all reasonable out-of-pocket expenses in- under Superfund authority would no longer
curred in connection with the temporary re- be on site when a formal, written offer to ac-
location. These expenses may include mov- quire the property was made, and thus would
ing expenses and increased housing costs lose their eligibility for a replacement hous-
during the temporary relocation. Temporary ing payment. In order to prevent this unfair
relocation should not extend beyond one outcome, we have provided a definition of
year before the person is returned to his or initiation of negotiation, which is based on
her previous unit or location. The Agency the date the Federal Government offers to
must contact any residential tenant who has temporarily relocate an owner or tenant
been temporarily relocated for a period be- from the subject property.
yond one year and offer all permanent relo- Section 24.2(a)(15)(iv) Initiation of negotia-
cation assistance. This assistance would be tions (Tenants.) Tenants who occupy property
in addition to any assistance the person has that may be acquired amicably, without re-
already received for temporary relocation, course to the use of the power of eminent do-
and may not be reduced by the amount of main, must be fully informed as to their eli-
any temporary relocation assistance. gibility for relocation assistance. This in-
Similarly, if a business will be shut-down cludes notifying such tenants of their poten-
for any length of time due to rehabilitation tial eligibility when negotiations are initi-
of a site, it may be temporarily relocated ated, notifying them if they become fully eli-
and reimbursed for all reasonable out of gible, and, in the event the purchase of the
pocket expenses or must be determined to be property will not occur, notifying them that
displaced at the Agency’s option. they are no longer eligible for relocation
Any person who disagrees with the Agen- benefits. If a tenant is not readily accessible,
cy’s determination that he or she is not a as the result of a disaster or emergency, the
displaced person under this part may file an Agency must make a good faith effort to pro-
appeal in accordance with 49 CFR part 24.10 vide these notifications and document its ef-
of this regulation. forts in writing.
Section 24.2(a)(11) Dwelling Site. This defini- Section 24.2(a)(17) Mobile home. The fol-
tion ensures that the computation of re- lowing examples provide additional guidance
placement housing payments are accurate on the types of mobile homes and manufac-
and realistic (a) when the dwelling is located tured housing that can be found acceptable
on a larger than normal site, (b) when mixed- as comparable replacement dwellings for per-
use properties are acquired, (c) when more sons displaced from mobile homes. A rec-
than one dwelling is located on the acquired reational vehicle that is capable of providing
property, or (d) when the replacement dwell- living accommodations may be considered a
ing is retained by an owner and moved to an- replacement dwelling if the following cri-
other site. teria are met: the recreational vehicle is
Section 24.2(a)(14) Household income (exclu- purchased and occupied as the ‘‘primary’’
sions). Household income for purposes of this place of residence; it is located on a pur-
regulation does not include program benefits chased or leased site and connected to or
that are not considered income by Federal have available all necessary utilities for
law such as food stamps and the Women In- functioning as a housing unit on the date of
fants and Children (WIC) program. For a the displacing Agency’s inspection; and, the
more detailed list of income exclusions see dwelling, as sited, meets all local, State, and
Federal Highway Administration, Office of Federal requirements for a decent, safe and
Real Estate Services Web site: http:// sanitary dwelling. (The regulations of some
www.fhwa.dot.gov/realestate/. (FR 4644–N–16 local jurisdictions will not permit the con-
page 20319 Updated.) If there is a question on sideration of these vehicles as decent, safe
whether or not to include income from a spe- and sanitary dwellings. In those cases, the
cific program contact the Federal Agency recreational vehicle will not qualify as a re-
administering the program. placement dwelling.)
Section 24(a)(15) Initiation of negotiations. For HUD programs, mobile home is defined
This section provides a special definition for as ‘‘a structure, transportable in one or more
acquisition and displacements under Pub. L. sections, which, in the traveling mode, is
96–510 or Superfund. The order of activities eight body feet or more in width or forty
257
body feet or more in length, or, when erected ‘‘geographic area’’ is not to be construed to
on site, is three hundred or more square feet, be a small, limited area.
and which is built on a permanent chassis Sections 24.101(b)(1)(iv) and (2)(ii). These sec-
and designed to be used as a dwelling with or tions provide that, for programs and projects
without a permanent foundation when con- receiving Federal financial assistance de-
nected to the required utilities and includes scribed in §§ 24.101(b)(1) and (2), Agencies are
the plumbing, heating, air-conditioning, and to inform the owner(s) in writing of the
electrical systems contained therein; except Agency’s estimate of the fair market value
that such terms shall include any structure for the property to be acquired.
which meets all the requirements of this While this part does not require an ap-
paragraph except the size requirements and praisal for these transactions, Agencies may
with respect to which the manufacturer vol- still decide that an appraisal is necessary to
untarily files a certification required by the support their determination of the market
Secretary of HUD and complies with the value of these properties, and, in any event,
standards established under the National Agencies must have some reasonable basis
Manufactured Housing Construction and for their determination of market value. In
Safety Standards Act, provided by Congress addition, some of the concepts inherent in
in the original 1974 Manufactured Housing Federal Program appraisal practice are ap-
Act.’’ In 1979 the term ‘‘mobile home’’ was propriate for these estimates. It would be ap-
changed to ‘‘manufactured home.’’ For pur- propriate for Agencies to adhere to project
poses of this regulation, the terms mobile influence restrictions, as well as guard
home and manufactured home are synony- against discredited ‘‘public interest value’’
mous. valuation concepts.
When assembled, manufactured homes After an Agency has established an
built after 1976 contain no less than 320 amount it believes to be the market value of
square feet. They may be single or multi-sec- the property and has notified the owner of
tioned units when installed. Their designa- this amount in writing, an Agency may ne-
tion as personalty or realty will be deter- gotiate freely with the owner in order to
mined by State law. When determined to be reach agreement. Since these transactions
realty, most are eligible for conventional are voluntary, accomplished by a willing
mortgage financing. buyer and a willing seller, negotiations may
The 1976 HUD standards distinguish manu- result in agreement for the amount of the
factured homes from factory-built ‘‘modular original estimate, an amount exceeding it,
homes’’ as well as conventional or ‘‘stick- or for a lesser amount. Although not re-
built’’ homes. Both of these types of housing quired by the regulations, it would be en-
are required to meet State and local con- tirely appropriate for Agencies to apply the
struction codes. administrative settlement concept and pro-
Section 24.3 No Duplication of Payments. cedures in § 24.102(i) to negotiate amounts
This section prohibits an Agency from mak- that exceed the original estimate of market
ing a payment to a person under these regu- value. Agencies shall not take any coercive
lations that would duplicate another pay- action in order to reach agreement on the
ment the person receives under Federal, price to be paid for the property.
State, or local law. The Agency is not re- Section 24.101(c) Less-than-full-fee interest in
quired to conduct an exhaustive search for real property. This provision provides a
such other payments; it is only required to benchmark beyond which the requirements
avoid creating a duplication based on the of the subpart clearly apply to leases.
Agency’s knowledge at the time a payment Section 24.102(c)(2) Appraisal, waiver thereof,
is computed. and invitation to owner. The purpose of the
appraisal waiver provision is to provide
SUBPART B—REAL PROPERTY ACQUISITION Agencies a technique to avoid the costs and
Federal Agencies may find that, for Fed- time delay associated with appraisal require-
eral eminent domain purposes, the terms ments for low-value, non-complex acquisi-
‘‘fair market value’’ (as used throughout this tions. The intent is that non-appraisers
subpart) and ‘‘market value,’’ which may be make the waiver valuations, freeing apprais-
the more typical term in private trans- ers to do more sophisticated work.
actions, may be synonymous. The Agency employee making the deter-
Section 24.101(a) Direct Federal program or mination to use the appraisal waiver process
project. All 49 CFR Part 24 Subpart B (real must have enough understanding of ap-
property acquisition) requirements apply to praisal principles to be able to determine
all direct acquisitions for Federal programs whether or not the proposed acquisition is
and projects by Federal Agencies, except for low value and uncomplicated.
acquisitions undertaken by the Tennessee Waiver valuations are not appraisals as de-
Valley Authority or the Rural Utilities Serv- fined by the Uniform Act and these regula-
ice. There are no exceptions for ‘‘voluntary tions; therefore, appraisal performance re-
transactions.’’ quirements or standards, regardless of their
Section 24.101(b)(1)(i). The term ‘‘general ge- source, are not required for waiver valu-
ographic area’’ is used to clarify that the ations by this rule. Since waiver valuations
258
are not appraisals, neither is there a require- necessary litigation and congestion in the
ment for an appraisal review. However, the courts.
Agency must have a reasonable basis for the All relevant facts and circumstances
waiver valuation and an Agency official should be considered by an Agency official
must still establish an amount believed to be delegated this authority. Appraisers, includ-
just compensation to offer the property ing review appraisers, must not be pressured
owner(s). to adjust their estimate of value for the pur-
The definition of ‘‘appraisal’’ in the Uni- pose of justifying such settlements. Such ac-
form Act and appraisal waiver provisions of tion would invalidate the appraisal process.
the Uniform Act and these regulations are Section 24.102(j) Payment before taking pos-
Federal law and public policy and should be session. It is intended that a right-of-entry
considered as such when determining the im- for construction purposes be obtained only in
pact of appraisal requirements levied by oth- the exceptional case, such as an emergency
ers. project, when there is no time to make an
Section 24.102(d) Establishment of offer of just appraisal and purchase offer and the prop-
compensation. The initial offer to the property owner is agreeable to the process.
erty owner may not be less than the amount Section 24.102(m) Fair rental. Section 301(6)
of the Agency’s approved appraisal, but may of the Uniform Act limits what an Agency
exceed that amount if the Agency deter- may charge when a former owner or previous
mines that a greater amount reflects just
occupant of a property is permitted to rent
compensation for the property.
the property for a short term or when occu-
Section 24.102(f) Basic negotiation procedures.
pancy is subject to termination by the Agen-
An offer should be adequately presented to
cy on short notice. Such rent may not exceed
an owner, and the owner should be properly
‘‘the fair rental value of the property to a
informed. Personal, face-to-face contact
short-term occupier.’’ Generally, the Agen-
should take place, if feasible, but this sec-
cy’s right to terminate occupancy on short
tion does not require such contact in all
notice (whether or not the renter also has
cases.
This section also provides that the prop- that right) supports the establishment of a
erty owner be given a reasonable oppor- lesser rental than might be found in a
tunity to consider the Agency’s offer and to longer, fixed-term situation.
present relevant material to the Agency. In Section 24.102(n) Conflict of interest. The
order to satisfy this requirement, Agencies overall objective is to minimize the risk of
must allow owners time for analysis, re- fraud while allowing Agencies to operate as
search and development, and compilation of efficiently as possible. There are three parts
a response, including perhaps getting an ap- to this provision.
praisal. The needed time can vary signifi- The first provision is the prohibition
cantly, depending on the circumstances, but against having any interest in the real prop-
thirty (30) days would seem to be the min- erty being valued by the appraiser (for an ap-
imum time these actions can be reasonably praisal), the valuer (for a waiver estimate) or
expected to require. Regardless of project the review appraiser (for an appraisal re-
time pressures, property owners must be af- view.)
forded this opportunity. The second provision is that no person
In some jurisdictions, there is pressure to functioning as a negotiator for a project or
initiate formal eminent domain procedures program can supervise or formally evaluate
at the earliest opportunity because com- the performance of any appraiser or review
pleting the eminent domain process, includ- appraiser performing appraisal or appraisal
ing gaining possession of the needed real review work for that project or program. The
property, is very time consuming. These pro- intent of this provision is to ensure ap-
visions are not intended to restrict this prac- praisal/valuation independence and to pre-
tice, so long as it does not interfere with the vent inappropriate influence. It is not in-
reasonable time that must be provided for tended to prevent Agencies from providing
negotiations, described above, and the Agen- appraisers/valuers with appropriate project
cies adhere to the Uniform Act ban on coer- information and participating in deter-
cive action (section 301(7) of the Uniform mining the scope of work for the appraisal or
Act). valuation. For a program or project receiv-
If the owner expresses intent to provide an ing Federal financial assistance, the Federal
appraisal report, Agencies are encouraged to funding Agency may waive this requirement
provide the owner and/or his/her appraiser a if it would create a hardship for the Agency.
copy of Agency appraisal requirements and The intent is to accommodate Federal-aid
inform them that their appraisal should be recipients that have a small staff where this
based on those requirements. provision would be unworkable.
Section 24.102(i) Administrative settlement. The third provision is to minimize situa-
This section provides guidance on adminis- tions where administrative costs exceed ac-
trative settlement as an alternative to judi- quisition costs. Section 24.102(n) also pro-
cial resolution of a difference of opinion on vides that the same person may prepare a
the value of a property, in order to avoid un- valuation estimate (including an appraisal)
259
and negotiate that acquisition, if the valu- ments of Federal and federally-assisted pro-
ation estimate amount is $10,000 or less. gram appraisal practice. It should be devel-
However, it should be noted that this excep- oped cooperatively by the assigned appraiser
tion for properties valued at $10,000 or less is and an Agency official who is competent to
not mandatory, e.g., Agencies are not re- both represent the Agency’s needs and re-
quired to use those who prepare a waiver spect valid appraisal practice. The scope of
valuation or appraisal of $10,000 or less to ne- work statement should include the purpose
gotiate the acquisition, and, all appraisals and/or function of the appraisal, a definition
must be reviewed in accordance with § 24.104. of the estate being appraised, and if it is fair
This includes appraisals of real property val- market value, its applicable definition, and
ued at $10,000 or less. the assumptions and limiting conditions af-
Section 24.103 Criteria for Appraisals. The fecting the appraisal. It may include param-
term ‘‘requirements’’ is used throughout this eters for the data search and identification
section to avoid confusion with The Ap- of the technology, including approaches to
praisal Foundation’s Uniform Standards of value, to be used to analyze the data. The
Professional Appraisal Practice (USPAP) scope of work should consider the specific re-
‘‘standards.’’ Although this section discusses quirements in 49 CFR 24.103(a)(2)(i) through
appraisal requirements, the definition of (v) and address them as appropriate.
‘‘appraisal’’ itself at § 24.2(a)(3) includes ap- Section 24.103(a)(1). The appraisal report
praisal performance requirements that are should identify the items considered in the
an inherent part of this section. appraisal to be real property, as well as
The term ‘‘Federal and federally-assisted those identified as personal property.
program or project’’ is used to better iden- Section 24.103(a)(2). All relevant and reli-
tify the type of appraisal practices that are able approaches to value are to be used. How-
to be referenced and to differentiate them ever, where an Agency determines that the
from the private sector, especially mortgage sales comparison approach will be adequate
lending, appraisal practice. by itself and yield credible appraisal results
Section 24.103(a) Appraisal requirements. The because of the type of property being ap-
first sentence instructs readers that require- praised and the availability of sales data, it
ments for appraisals for Federal and feder- may limit the appraisal assignment to the
ally-assisted programs or projects are lo- sales comparison approach. This should be
cated in 49 CFR part 24. These are the basic reflected in the scope of work.
appraisal requirements for Federal and fed- Section 24.103(b) Influence of the project on
erally-assisted programs or projects. How- just compensation. As used in this section, the
ever, Agencies may enhance and expand on term ‘‘project’’ means an undertaking which
them, and there may be specific project or is planned, designed, and intended to operate
program legislation that references other ap- as a unit.
praisal requirements. When the public is aware of the proposed
These appraisal requirements are nec- project, project area property values may be
essarily designed to comply with the Uni- affected. Therefore, property owners should
form Act and other Federal eminent domain not be penalized because of a decrease in
based appraisal requirements. They are also value caused by the proposed project nor
considered to be consistent with Standards reap a windfall at public expense because of
Rules 1, 2, and 3 of the 2004 edition of the increased value created by the proposed
USPAP. Consistency with USPAP has been a project.
feature of these appraisal requirements since Section 24.103(d)(1). The appraiser and re-
the beginning of USPAP. This ‘‘consistent’’ view appraiser must each be qualified and
relationship was more formally recognized in competent to perform the appraisal and ap-
OMB Bulletin 92–06. While these require- praisal review assignments, respectively.
ments are considered consistent with Among other qualifications, State licensing
USPAP, neither can supplant the other; or certification and professional society des-
their provisions are neither identical, nor ignations can help provide an indication of
interchangeable. Appraisals performed for an appraiser’s abilities.
Federal and federally-assisted real property Section 24.104 Review of appraisals. The term
acquisition must follow the requirements in ‘‘review appraiser’’ is used rather than ‘‘re-
this regulation. Compliance with any other viewing appraiser,’’ to emphasize that ‘‘re-
appraisal requirements is not the purview of view appraiser’’ is a separate specialty and
this regulation. An appraiser who is com- not just an appraiser who happens to be re-
mitted to working within the bounds of viewing an appraisal. Federal Agencies have
USPAP should recognize that compliance long held the perspective that appraisal re-
with both USPAP and these requirements view is a unique skill that, while it certainly
may be achieved by using the Supplemental builds on appraisal skills, requires more. The
Standards Rule and the Jurisdictional Ex- review appraiser should possess both ap-
ception Rule of USPAP, where applicable. praisal technical abilities and the ability to
The term ‘‘scope of work’’ defines the gen- be the two-way bridge between the Agency’s
eral parameters of the appraisal. It reflects real property valuation needs and the ap-
the needs of the Agency and the require- praiser.
260
Agency review appraisers typically per- Section 24.104(c). Before acceptance of an
form a role greater than technical appraisal appraisal, the review appraiser must deter-
review. They are often involved in early mine that the appraiser’s documentation, in-
project development. Later they may be including valuation data and analysis of that
volved in devising the scope of work state- data, demonstrates the soundness of the ap-
ments and participate in making appraisal praiser’s opinion of value. For the purposes
assignments to fee and/or staff appraisers. of this part, an acceptable appraisal is any
They are also mentors and technical advi- appraisal that, on its own, meets the require-
sors, especially on Agency policy and re- ments of § 24.103. An approved appraisal is
quirements, to appraisers, both staff and fee. the one acceptable appraisal that is deter-
Additionally, review appraisers are fre- mined to best fulfill the requirement to be
quently technical advisors to other Agency the basis for the amount believed to be just
officials. compensation. Recognizing that appraisal is
Section 24.104(a). This paragraph states that not an exact science, there may be more
the review appraiser is to review the apprais- than one acceptable appraisal of a property,
er’s presentation and analysis of market in- but for the purposes of this part, there can be
formation and that it is to be reviewed only one approved appraisal.
against § 24.103 and other applicable require- At the Agency’s discretion, for a low value
ments, including, to the extent appropriate, property requiring only a simple appraisal
the Uniform Appraisal Standards for Federal process, the review appraiser’s recommenda-
Land Acquisition. The appraisal review is to tion (or approval), endorsing the appraiser’s
be a technical review by an appropriately report, may be determined to satisfy the re-
qualified review appraiser. The qualifica- quirement for the review appraiser’s signed
tions of the review appraiser and the level of report and certification.
explanation of the basis for the review ap- Section 24.106(b). Expenses incidental to
praiser’s recommended (or approved) value transfer of title to the agency. Generally, the
depend on the complexity of the appraisal Agency is able to pay such incidental costs
problem. If the initial appraisal submitted directly and, where feasible, is required to do
for review is not acceptable, the review ap- so. In order to prevent the property owner
praiser is to communicate and work with the
from making unnecessary out-of-pocket ex-
appraiser to the greatest extent possible to
penditures and to avoid duplication of ex-
facilitate the appraiser’s development of an
penses, the property owner should be in-
acceptable appraisal.
formed early in the acquisition process of
In doing this, the review appraiser is to re- the Agency’s intent to make such arrange-
main in an advisory role, not directing the ments. Such expenses must be reasonable
appraisal, and retaining objectivity and op- and necessary.
tions for the appraisal review itself.
If the Agency intends that the staff review SUBPART C—GENERAL RELOCATION
appraiser approve the appraisal (as the basis REQUIREMENTS
for the establishment of the amount believed
to be just compensation), or establish the Section 24.202 Applicability and Section
amount the Agency believes is just com- 205(c) Services to be provided. In extraordinary
pensation, she/he must be specifically au- circumstances, when a displaced person is
thorized by the Agency to do so. If the re- not readily accessible, the Agency must
view appraiser is not specifically authorized make a good faith effort to comply with
to approve the appraisal (as the basis for the these sections and document its efforts in
establishment of the amount believed to be writing.
just compensation), or establish the amount Section 24.204 Availability of comparable re-
believed to be just compensation, that au- placement dwelling before displacement.
thority remains with another Agency offi- Section 24.204(a) General. This provision re-
cial. quires that no one may be required to move
Section 24.104(b). In developing an inde- from a dwelling without a comparable re-
pendent approved or recommended value, the placement dwelling having been made avail-
review appraiser may reference any acceptable. In addition, § 24.204(a) requires that,
able resource, including acceptable parts of ‘‘where possible, three or more comparable
any appraisal, including an otherwise unac- replacement dwellings shall be made avail-
ceptable appraisal. When a review appraiser able.’’ Thus, the basic standard for the num-
develops an independent value, while retain- ber of referrals required under this section is
ing the appraisal review, that independent three. Only in situations where three com-
value also becomes the approved appraisal of parable replacement dwellings are not avail-
the fair market value for Uniform Act Sec- able (e.g., when the local housing market
tion 301(3) purposes. It is within Agency dis- does not contain three comparable dwell-
cretion to decide whether a second review is ings) may the Agency make fewer than three
needed if the first review appraiser estab- referrals.
lishes a value different from that in the ap- Section 24.205 Relocation assistance advisory
praisal report or reports on the property. services. Section 24.205(c)(2)(ii)(D) emphasizes
261
that if the comparable replacement dwell- equipment shall be based on the cost to in-
ings are located in areas of minority con- stall the equipment as it currently exists,
centration, minority persons should, if pos- and shall not include the cost of code-re-
sible, also be given opportunities to relocate quired betterments or upgrades that may
to replacement dwellings not located in such apply at the replacement site. As prescribed
areas. in the regulation, the allowable in-place
Section 24.206 Eviction for cause. An evic- value estimate (§ 24.301(g)(14)(i)) and moving
tion related to non-compliance with a re- cost estimate (§ 24.301(g)(14)(ii)) must reflect
quirement related to carrying out a project only the ‘‘as is’’ condition and installation of
(e.g., failure to move or relocate when in- the item at the displacement site. The in-
structed, or to cooperate in the relocation place value estimate may not include costs
process) shall not negate a person’s entitle- that reflect code or other requirements that
ment to relocation payments and other as-
were not in effect at the displacement site;
sistance set forth in this part.
or include installation costs for machinery
Section 24.207 General Requirements–Claims
or equipment that is not operable or not in-
for relocation payments. Section 24.207(a) al-
stalled at the displacement site.
lows an Agency to make a payment for low
cost or uncomplicated nonresidential moves Section 24.301(g)(17) Searching expenses. In
without additional documentation, as long special cases where the displacing Agency
as the payment is limited to the amount of determines it to be reasonable and nec-
the lowest acceptable bid or estimate, as pro- essary, certain additional categories of
vided for in § 24.301(d)(1). searching costs may be considered for reim-
While § 24.207(f) prohibits an Agency from bursement. These include those costs in-
proposing or requesting that a displaced per- volved in investigating potential replace-
son waive his or her rights or entitlements ment sites and the time of the business
to relocation assistance and payments, an owner, based on salary or earnings, required
Agency may accept a written statement to apply for licenses or permits, zoning
from the displaced person that states that changes, and attendance at zoning hearings.
they have chosen not to accept some or all of Necessary attorney fees required to obtain
the payments or assistance to which they such licenses or permits are also reimburs-
are entitled. Any such written statement able. Time spent in negotiating the purchase
must clearly show that the individual knows of a replacement business site is also reim-
what they are entitled to receive (a copy of bursable based on a reasonable salary or
the Notice of Eligibility which was provided earnings rate. In those instances when such
may serve as documentation) and their additional costs to investigate and acquire
statement must specifically identify which the site exceed $2,500, the displacing Agency
assistance or payments they have chosen not may consider waiver of the cost limitation
to accept. The statement must be signed and under the § 24.7, waiver provision. Such a
dated and may not be coerced by the Agency. waiver should be subject to the approval of
the Federal-funding Agency in accordance
SUBPART D—PAYMENT FOR MOVING AND
with existing delegation authority.
RELATED EXPENSES
Section 24.303(b) Professional Services. If a
Section 24.301. Payment for Actual Reason- question should arise as to what is a ‘‘rea-
able Moving and Related Expenses. sonable hourly rate,’’ the Agency should
Section 24.301(e) Personal property only. Ex- compare the rates of other similar profes-
amples of personal property only moves sional providers in that area.
might be: personal property that is located Section 24.305 Fixed Payment for Moving Ex-
on a portion of property that is being ac- penses—Nonresidential Moves.
quired, but the business or residence will not
Section 24.305(d) Nonprofit organization.
be taken and can still operate after the ac-
Gross revenues may include membership
quisition; personal property that is located
fees, class fees, cash donations, tithes, re-
in a mini-storage facility that will be ac-
quired or relocated; personal property that is ceipts from sales or other forms of fund col-
stored on vacant land that is to be acquired. lection that enables the nonprofit organiza-
For a nonresidential personal property tion to operate. Administrative expenses are
only move, the owner of the personal prop- those for administrative support such as
erty has the options of moving the personal rent, utilities, salaries, advertising, and
property by using a commercial mover or a other like items as well as fundraising ex-
self-move. penses. Operating expenses for carrying out
If a question arises concerning the reason- the purposes of the nonprofit organization
ableness of an actual cost move, the acquir- are not included in administrative expenses.
ing Agency may obtain estimates from quali- The monetary receipts and expense amounts
fied movers to use as the standard in deter- may be verified with certified financial
mining the payment. statements or financial documents required
Section 24.301 (g)(14)(i) and (ii). If the piece by public Agencies.
of equipment is operational at the acquired Section 24.305(e) Average annual net earnings
site, the estimated cost to reconnect the of a business or farm operation. If the average
262
annual net earnings of the displaced busi- SAMPLE COMPUTATION
ness, farm, or nonprofit organization are de-
termined to be less than $1,000, even $0 or a Old Mortgage:
Remaining Principal Balance .......... $50,000
negative amount, the minimum payment of Monthly Payment (principal and in-
$1,000 shall be provided. terest) ........................................... $458.22
Section 24.306 Discretionary Utility Reloca- Interest rate (percent) ..................... 7
tion Payments. Section 24.306(c) describes the New Mortgage:
issues that the Agency and the utility facil- Interest rate (percent) ..................... 10
Points .............................................. 3
ity owner must agree to in determining the Term (years) .................................... 15
amount of the relocation payment. To facili-
tate and aid in reaching such agreement, the Remaining term of the old mortgage is de-
practices in the Federal Highway Adminis- termined to be 174 months. Determining, or
tration regulation, 23 CFR part 645, subpart computing, the actual remaining term is
A, Utility Relocations, Adjustments and Re- more reliable than using the data supplied
imbursement, should be followed. by the mortgagee. However, if it is shorter,
use the term of the new mortgage and com-
SUBPART E—REPLACEMENT HOUSING pute the needed monthly payment.
PAYMENTS Amount to be financed to maintain month-
Section 24.401 Replacement Housing Pay- ly payments of $458.22 at 10% = $42,010.18.
ment for 180-day Homeowner-Occupants. Calculation:
Section 24.401(a)(2). An extension of eligi- Remaining Principal Balance .......... $50,000.00
bility may be granted if some event beyond Minus Monthly Payment (principal
the control of the displaced person such as and interest) ................................. ¥42,010.18
acute or life threatening illness, bad weather Increased mortgage interest costs .. 7,989.82
preventing the completion of construction, 3 points on $42,010.18 ................... 1,260.31
or physical modifications required for rea-
sonable accommodation of a replacement Total buydown necessary to main-
dwelling, or other like circumstances causes tain payments at $458.22/month 9,250.13
a delay in occupying a decent, safe, and sani-
tary replacement dwelling. If the new mortgage actually obtained is
less than the computed amount for a new
Section 24.401(c)(2)(iii) Price differential. The
mortgage ($42,010.18), the buydown shall be
provision in § 24.401(c)(2)(iii) to use the cur-
prorated accordingly. If the actual mortgage
rent fair market value for residential use
obtained in our example were $35,000, the
does not mean the Agency must have the
buydown payment would be $7,706.57 ($35,000
property appraised. Any reasonable method
divided by $42,010.18 = .8331; $9,250.13 multi-
for arriving at the fair market value may be plied by .83 = $7,706.57).
used. The Agency is obligated to inform the dis-
Section 24.401(d) Increased mortgage interest placed person of the approximate amount of
costs. The provision in § 24.401(d) sets forth this payment and that the displaced person
the factors to be used in computing the pay- must obtain a mortgage of at least the same
ment that will be required to reduce a per- amount as the old mortgage and for at least
son’s replacement mortgage (added to the the same term in order to receive the full
downpayment) to an amount which can be amount of this payment. The Agency must
amortized at the same monthly payment for advise the displaced person of the interest
principal and interest over the same period rate and points used to calculate the pay-
of time as the remaining term on the dis- ment.
placement mortgages. This payment is com- Section 24.402 Replacement Housing Pay-
monly known as the ‘‘buydown.’’ ment for 90-day Occupants
The Agency must know the remaining Section 24.402(b)(2) Low income calculation
principal balance, the interest rate, and example. The Uniform Act requires that an
monthly principal and interest payments for eligible displaced person who rents a replace-
the old mortgage as well as the interest rate, ment dwelling is entitled to a rental assist-
points and term for the new mortgage to ance payment calculated in accordance with
compute the increased mortgage interest § 24.402(b). One factor in this calculation is to
costs. If the combination of interest and determine if a displaced person is ‘‘low in-
points for the new mortgage exceeds the cur- come,’’ as defined by the U.S. Department of
rent prevailing fixed interest rate and points Housing and Urban Development’s annual
for conventional mortgages and there is no survey of income limits for the Public Hous-
justification for the excessive rate, then the ing and Section 8 Programs. To make such a
current prevailing fixed interest rate and determination, the Agency must: (1) Deter-
points shall be used in the computations. mine the total number of members in the
Justification may be the unavailability of household (including all adults and chil-
the current prevailing rate due to the dren); (2) locate the appropriate table for in-
amount of the new mortgage, credit difficul- come limits applicable to the Uniform Act
ties, or other similar reasons. for the state in which the displaced residence
263
is located (found at: http://www.fhwa.dot.gov/ For the purpose of this section, should the
realestate/ua/ualic.htm); (3) from the list of amount of the rental assistance payment ex-
local jurisdictions shown, identify the appro- ceed the purchase price of the replacement
priate county, Metropolitan Statistical Area dwelling, the payment would be limited to
(MSA)*, or Primary Metropolitan Statistical the cost of the dwelling.
Area (PMSA)* in which the displacement Section 24.404 Replacement Housing of Last
property is located; and (4) locate the appro- Resort.
priate income limit in that jurisdiction for Section 24.404(b) Basic rights of persons to be
the size of this displaced person/family. The displaced. This paragraph affirms the right of
income limit must then be compared to the a 180-day homeowner-occupant, who is eligi-
household income (§ 24.2(a)(15)) which is the ble for a replacement housing payment under
gross annual income received by the dis- § 24.401, to a reasonable opportunity to pur-
placed family, excluding income from any chase a comparable replacement dwelling.
dependent children and full-time students However, it should be read in conjunction
under the age of 18. If the household income with the definition of ‘‘owner of a dwelling’’
for the eligible displaced person/family is at § 24.2(a)(20). The Agency is not required to
less than or equal to the income limit, the provide persons owning only a fractional in-
family is considered ‘‘low income.’’ For ex- terest in the displacement dwelling a greater
ample: level of assistance to purchase a replacement
Tom and Mary Smith and their three chil- dwelling than the Agency would be required
dren are being displaced. The information to provide such persons if they owned fee
obtained from the family and verified by the simple title to the displacement dwelling. If
Agency is as follows: such assistance is not sufficient to buy a re-
Tom Smith, employed, earns $21,000/yr. placement dwelling, the Agency may provide
Mary Smith, receives disability payments additional purchase assistance or rental as-
of $6,000/yr. sistance.
Tom Smith Jr., 21, employed, earns $10,000/ Section 24.404(c) Methods of providing com-
yr. parable replacement housing. This Section em-
Mary Jane Smith, 17, student, has a paper phasizes the use of cost effective means of
route, earns $3,000/yr. (Income is not in- providing comparable replacement housing.
cluded because she is a dependent child and The term ‘‘reasonable cost’’ is used to high-
a full-time student under 18) light the fact that while innovative means to
Sammie Smith, 10, full-time student, no provide housing are encouraged, they should
income. be cost-effective. Section 24.404(c)(2) permits
Total family income for 5 persons is: the use of last resort housing, in special
$21,000 + $6,000 + $10,000 = $37,000 cases, which may involve variations from the
The displacement residence is located in usual methods of obtaining comparability.
the State of Maryland, Caroline County. The However, such variation should never result
low income limit for a 5 person household is: in a lowering of housing standards nor
$47,450. (2004 Income Limits) should it ever result in a lower quality of liv-
This household is considered ‘‘low in- ing style for the displaced person. The phys-
come.’’ ical characteristics of the comparable re-
* A complete list of counties and towns in- placement dwelling may be dissimilar to
cluded in the identified MSAs and PMSAs those of the displacement dwelling but they
can be found under the bulleted item ‘‘In- may never be inferior.
come Limit Area Definition’’ posted on the One example might be the use of a new mo-
FHWA’s Web site at: http://www.fhwa.dot.gov/ bile home to replace a very substandard con-
realestate/ua/ualic.htm. ventional dwelling in an area where com-
Section 24.402(c) Downpayment assistance. parable conventional dwellings are not avail-
The downpayment assistance provisions in able.
§ 24.402(c) limit such assistance to the Another example could be the use of a su-
amount of the computed rental assistance perior, but smaller, decent, safe and sanitary
payment for a tenant or an eligible home- dwelling to replace a large, old substandard
owner. It does, however, provide the latitude dwelling, only a portion of which is being
for Agency discretion in offering downpay- used as living quarters by the occupants and
ment assistance that exceeds the computed no other large comparable dwellings are
rental assistance payment, up to the $5,250 available in the area.
statutory maximum. This does not mean, [70 FR 611, Jan. 4, 2005, as amended at 70 FR
however, that such Agency discretion may 22611, May 2, 2005]
be exercised in a selective or discriminatory
fashion. The displacing Agency should de- APPENDIX B TO PART 24—STATISTICAL
velop a policy that affords equal treatment REPORT FORM
for displaced persons in like circumstances
and this policy should be applied uniformly This Appendix sets forth the statistical in-
throughout the Agency’s programs or formation collected from Agencies in accord-
projects. ance with § 24.9(c).
264
General Line 4. Report the total of the amounts
1. Report coverage. This report covers all re- paid, deposited in court, or otherwise made
location and real property acquisition activi- available to a property owner pursuant to
ties under a Federal or a federally-assisted applicable law in order to vest title or pos-
project or program subject to the provisions session in the Agency in Line 1.
of the Uniform Act. If the exact numbers are
not easily available, an Agency may provide Part B. Residential Relocation Under the
what it believes to be a reasonable estimate. Uniform Act
2. Report period. Activities shall be reported Line 5. Report the number of households
on a Federal fiscal year basis, i.e., October 1 who were permanently displaced during the
through September 30. fiscal year by project or program activities
3. Where and when to submit report. Submit and moved to their replacement dwelling.
a copy of this report to the lead Agency as The term ‘‘households’’ includes all families
soon as possible after September 30, but NOT and individuals. A family shall be reported
LATER THAN NOVEMBER 15. Lead Agency as ‘‘one’’ household, not by the number of
address: Federal Highway Administration, people in the family unit.
Office of Real Estate Services (HEPR), Room Line 6. Report the total amount paid for
3221, 400 7th Street SW., Washington, DC residential moving expenses (actual expense
20590. and fixed payment).
4. How to report relocation payments. The Line 7. Report the total amount paid for
full amount of a relocation payment shall be residential replacement housing payments
reported as if disbursed in the year during including payments for replacement housing
which the claim was approved, regardless of of last resort provided pursuant to § 24.404 of
whether the payment is to be paid in install- this part.
ments.
Line 8. Report the number of households in
5. How to report dollar amounts. Round off
Line 5 who were permanently displaced dur-
all money entries in Parts of this section A,
ing the fiscal year by project or program ac-
B and C to the nearest dollar.
tivities and moved to their replacement
6. Regulatory references. The references in dwelling as part of last resort housing assist-
Parts A, B, C and D of this section indicate ance.
the subpart of the regulations pertaining to
Line 9. Report the number of tenant house-
the requested information.
holds in Line 5 who were permanently dis-
Part A. Real property acquisition under The placed during the fiscal year by project or
Uniform Act program activities, and who purchased and
moved to their replacement dwelling using a
Line 1. Report all parcels acquired during downpayment assistance payment under this
the report year where title or possession was part.
vested in the Agency during the reporting Line 10. Report the total sum costs of resi-
period. The parcel count reported should re- dential relocation expenses and payments
late to ownerships and not to the number of (excluding Agency administrative expenses)
parcels of different property interests (such in Lines 6 and 7.
as fee, perpetual easement, temporary ease-
ment, etc.) that may have been part of an ac- Part C. Nonresidential Relocation Under the
quisition from one owner. For example, an Uniform Act
acquisition from a property that includes a
fee simple parcel, a perpetual easement par- Line 11. Report the number of businesses,
cel, and a temporary easement parcel should nonprofit organizations, and farms who were
be reported as 1 parcel not 3 parcels. (Include permanently displaced during the fiscal year
parcels acquired without Federal financial by project or program activities and moved
assistance, if there was or will be Federal fi- to their replacement location. This includes
nancial assistance in other phases of the businesses, nonprofit organizations, and
project or program.) farms, that upon displacement, discontinued
Line 2. Report the number of parcels re- operations.
ported on Line 1 that were acquired by con- Line 12. Report the total amount paid for
demnation. Include those parcels where com- nonresidential moving expenses (actual ex-
pensation for the property was paid, depos- pense and fixed payment.)
ited in court, or otherwise made available to Line 13. Report the total amount paid for
a property owner pursuant to applicable law nonresidential reestablishment expenses.
in order to vest title or possession in the Line 14. Report the total sum costs of non-
Agency through condemnation authority. residential relocation expenses and pay-
Line 3. Report the number of parcels in ments (excluding Agency administrative ex-
Line 1 acquired through administrative set- penses) in Lines 12 and 13.
tlement where the purchase price for the
Part D. Relocation Appeals
property exceeded the amount offered as just
compensation and efforts to negotiate an Line 15. Report the total number of reloca-
agreement at that amount have failed. tion appeals filed during the fiscal year by
265
aggrieved persons (residential and nonresi-
dential).
266
ER04JA05.004</GPH>
PART 25—NONDISCRIMINATION 25.455 Textbooks and curricular material.

ON THE BASIS OF SEX IN EDU- Subpart E—Discrimination on the Basis of
CATION PROGRAMS OR ACTIVI- Sex in Employment in Education Pro-
TIES RECEIVING FEDERAL FINAN- grams or Activities Prohibited
CIAL ASSISTANCE 25.500 Employment.
25.505 Employment criteria.
Subpart A—Introduction 25.510 Recruitment.
25.515 Compensation.
Sec. 25.520 Job classification and structure.
25.100 Purpose and effective date. 25.525 Fringe benefits.
25.105 Definitions. 25.530 Marital or parental status.
25.110 Remedial and affirmative action and 25.535 Effect of state or local law or other
self-evaluation. requirements.
25.115 Assurance required. 25.540 Advertising.
25.120 Transfers of property. 25.545 Pre-employment inquiries.
25.125 Effect of other requirements. 25.550 Sex as a bona fide occupational quali-
25.130 Effect of employment opportunities. fication.
25.135 Designation of responsible employee
and adoption of grievance procedures. Subpart F—Procedures
25.140 Dissemination of policy. 25.600 Notice of covered programs.
25.605 Enforcement procedures.
Subpart B—Coverage
AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685,
25.200 Application. 1686, 1687, 1688.
25.205 Educational institutions and other SOURCE: 65 FR 52865, 52894, Aug. 30, 2000, un-
entities controlled by religious organiza- less otherwise noted.
tions.
25.210 Military and merchant marine edu-
cational institutions. Subpart A—Introduction
25.215 Membership practices of certain orga-
nizations. § 25.100 Purpose and effective date.
25.220 Admissions. The purpose of these Title IX regula-
25.225 Educational institutions eligible to tions is to effectuate Title IX of the
submit transition plans. Education Amendments of 1972, as
25.230 Transition plans. amended (except sections 904 and 906 of
25.235 Statutory amendments. those Amendments) (20 U.S.C. 1681,
1682, 1683, 1685, 1686, 1687, 1688), which is
Subpart C—Discrimination on the Basis of designed to eliminate (with certain ex-
Sex in Admission and Recruitment Pro- ceptions) discrimination on the basis of
hibited sex in any education program or activ-
25.300 Admission. ity receiving Federal financial assist-
25.305 Preference in admission. ance, whether or not such program or
25.310 Recruitment. activity is offered or sponsored by an
educational institution as defined in
Subpart D—Discrimination on the Basis of these Title IX regulations. The effec-
Sex in Education Programs or Activities tive date of these Title IX regulations
Prohibited shall be September 29, 2000.
25.400 Education programs or activities. § 25.105 Definitions.
25.405 Housing.
As used in these Title IX regulations,
25.410 Comparable facilities.
the term:
25.415 Access to course offerings.
25.420 Access to schools operated by LEAs.
Administratively separate unit means a
25.425 Counseling and use of appraisal and
school, department, or college of an
counseling materials. educational institution (other than a
25.430 Financial assistance. local educational agency) admission to
25.435 Employment assistance to students. which is independent of admission to
25.440 Health and insurance benefits and any other component of such institu-
services. tion.
25.445 Marital or parental status. Admission means selection for part-
25.450 Athletics. time, full-time, special, associate,
267
transfer, exchange, or any other enroll- use Federal property or any interest
ment, membership, or matriculation in therein without consideration.
or at an education program or activity (5) Any other contract, agreement, or
operated by a recipient. arrangement that has as one of its pur-
Applicant means one who submits an poses the provision of assistance to any
application, request, or plan required education program or activity, except
to be approved by an official of the a contract of insurance or guaranty.
Federal agency that awards Federal fi- Institution of graduate higher edu-
nancial assistance, or by a recipient, as cation means an institution that:
a condition to becoming a recipient. (1) Offers academic study beyond the
Designated agency official means Di- bachelor of arts or bachelor of science
rector, Departmental Office of Civil degree, whether or not leading to a cer-
Rights. tificate of any higher degree in the lib-
Educational institution means a local eral arts and sciences;
educational agency (LEA) as defined by (2) Awards any degree in a profes-
20 U.S.C. 8801(18), a preschool, a private sional field beyond the first profes-
elementary or secondary school, or an sional degree (regardless of whether
applicant or recipient that is an insti- the first professional degree in such
tution of graduate higher education, an field is awarded by an institution of
institution of undergraduate higher undergraduate higher education or pro-
education, an institution of profes- fessional education); or
sional education, or an institution of (3) Awards no degree and offers no
vocational education, as defined in this further academic study, but operates
section. ordinarily for the purpose of facili-
Federal financial assistance means any tating research by persons who have
of the following, when authorized or received the highest graduate degree in
extended under a law administered by any field of study.
the Federal agency that awards such Institution of professional education
assistance: means an institution (except any insti-
(1) A grant or loan of Federal finan- tution of undergraduate higher edu-
cial assistance, including funds made cation) that offers a program of aca-
available for: demic study that leads to a first profes-
(i) The acquisition, construction, ren- sional degree in a field for which there
ovation, restoration, or repair of a is a national specialized accrediting
building or facility or any portion agency recognized by the Secretary of
thereof; and Education.
(ii) Scholarships, loans, grants, Institution of undergraduate higher
wages, or other funds extended to any education means:
entity for payment to or on behalf of (1) An institution offering at least
students admitted to that entity, or two but less than four years of college-
extended directly to such students for level study beyond the high school
payment to that entity. level, leading to a diploma or an asso-
(2) A grant of Federal real or per- ciate degree, or wholly or principally
sonal property or any interest therein, creditable toward a baccalaureate de-
including surplus property, and the gree; or
proceeds of the sale or transfer of such (2) An institution offering academic
property, if the Federal share of the study leading to a baccalaureate de-
fair market value of the property is gree; or
not, upon such sale or transfer, prop- (3) An agency or body that certifies
erly accounted for to the Federal Gov- credentials or offers degrees, but that
ernment. may or may not offer academic study.
(3) Provision of the services of Fed- Institution of vocational education
eral personnel. means a school or institution (except
(4) Sale or lease of Federal property an institution of professional or grad-
or any interest therein at nominal con- uate or undergraduate higher edu-
sideration, or at consideration reduced cation) that has as its primary purpose
for the purpose of assisting the recipi- preparation of students to pursue a
ent or in recognition of public interest technical, skilled, or semiskilled occu-
to be served thereby, or permission to pation or trade, or to pursue study in a
268
technical field, whether or not the activity, a recipient may take affirma-
school or institution offers certificates, tive action consistent with law to over-
diplomas, or degrees and whether or come the effects of conditions that re-
not it offers full-time study. sulted in limited participation therein
Recipient means any State or polit- by persons of a particular sex. Nothing
ical subdivision thereof, or any instru- in these Title IX regulations shall be
mentality of a State or political sub- interpreted to alter any affirmative ac-
division thereof, any public or private tion obligations that a recipient may
agency, institution, or organization, or have under Executive Order 11246, 3
other entity, or any person, to whom CFR, 1964–1965 Comp., p. 339; as amend-
Federal financial assistance is ex- ed by Executive Order 11375, 3 CFR,
tended directly or through another re- 1966–1970 Comp., p. 684; as amended by
cipient and that operates an education Executive Order 11478, 3 CFR, 1966–1970
program or activity that receives such Comp., p. 803; as amended by Executive
assistance, including any subunit, suc- Order 12086, 3 CFR, 1978 Comp., p. 230;
cessor, assignee, or transferee thereof. as amended by Executive Order 12107, 3
Student means a person who has CFR, 1978 Comp., p. 264.
gained admission. (c) Self-evaluation. Each recipient
Title IX means Title IX of the Edu- education institution shall, within one
cation Amendments of 1972, Public Law year of September 29, 2000:
92–318, 86 Stat. 235, 373 (codified as (1) Evaluate, in terms of the require-
amended at 20 U.S.C. 1681–1688) (except ments of these Title IX regulations, its
sections 904 and 906 thereof), as amend- current policies and practices and the
ed by section 3 of Public Law 93–568, 88 effects thereof concerning admission of
Stat. 1855, by section 412 of the Edu- students, treatment of students, and
cation Amendments of 1976, Public Law employment of both academic and non-
94–482, 90 Stat. 2234, and by Section 3 of academic personnel working in connec-
Public Law 100–259, 102 Stat. 28, 28–29 tion with the recipient’s education pro-
(20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, gram or activity;
1688). (2) Modify any of these policies and
Title IX regulations means the provi- practices that do not or may not meet
sions set forth at §§ 25.100 through the requirements of these Title IX reg-
25.605. ulations; and
Transition plan means a plan subject (3) Take appropriate remedial steps
to the approval of the Secretary of to eliminate the effects of any dis-
Education pursuant to section 901(a)(2) crimination that resulted or may have
of the Education Amendments of 1972, resulted from adherence to these poli-
20 U.S.C. 1681(a)(2), under which an edu- cies and practices.
cational institution operates in mak- (d) Availability of self-evaluation and
ing the transition from being an edu- related materials. Recipients shall main-
cational institution that admits only tain on file for at least three years fol-
students of one sex to being one that lowing completion of the evaluation re-
admits students of both sexes without quired under paragraph (c) of this sec-
discrimination. tion, and shall provide to the des-
ignated agency official upon request, a
§ 25.110 Remedial and affirmative ac- description of any modifications made
tion and self-evaluation. pursuant to paragraph (c)(2) of this sec-
(a) Remedial action. If the designated tion and of any remedial steps taken
agency official finds that a recipient pursuant to paragraph (c)(3) of this sec-
has discriminated against persons on tion.
the basis of sex in an education pro-
gram or activity, such recipient shall § 25.115 Assurance required.
take such remedial action as the des- (a) General. Either at the application
ignated agency official deems nec- stage or the award stage, Federal agen-
essary to overcome the effects of such cies must ensure that applications for
discrimination. Federal financial assistance or awards
(b) Affirmative action. In the absence of Federal financial assistance contain,
of a finding of discrimination on the be accompanied by, or be covered by a
basis of sex in an education program or specifically identified assurance from
269
the applicant or recipient, satisfactory § 25.120 Transfers of property.

to the designated agency official, that If a recipient sells or otherwise trans-
each education program or activity op- fers property financed in whole or in
erated by the applicant or recipient part with Federal financial assistance
and to which these Title IX regulations to a transferee that operates any edu-
apply will be operated in compliance cation program or activity, and the
with these Title IX regulations. An as- Federal share of the fair market value
surance of compliance with these Title of the property is not upon such sale or
IX regulations shall not be satisfactory transfer properly accounted for to the
to the designated agency official if the Federal Government, both the trans-
applicant or recipient to whom such as- feror and the transferee shall be
surance applies fails to commit itself deemed to be recipients, subject to the
to take whatever remedial action is provisions of §§ 25.205 through 25.235(a).
necessary in accordance with § 25.110(a)
to eliminate existing discrimination on § 25.125 Effect of other requirements.
the basis of sex or to eliminate the ef- (a) Effect of other Federal provisions.
fects of past discrimination whether The obligations imposed by these Title
occurring prior to or subsequent to the IX regulations are independent of, and
submission to the designated agency do not alter, obligations not to dis-
official of such assurance. criminate on the basis of sex imposed
(b) Duration of obligation. (1) In the by Executive Order 11246, 3 CFR, 1964–
1965 Comp., p. 339; as amended by Exec-
case of Federal financial assistance ex-
utive Order 11375, 3 CFR, 1966–1970
tended to provide real property or
Comp., p. 684; as amended by Executive
structures thereon, such assurance Order 11478, 3 CFR, 1966–1970 Comp., p.
shall obligate the recipient or, in the 803; as amended by Executive Order
case of a subsequent transfer, the 12087, 3 CFR, 1978 Comp., p. 230; as
transferee, for the period during which amended by Executive Order 12107, 3
the real property or structures are used CFR, 1978 Comp., p. 264; sections 704
to provide an education program or ac- and 855 of the Public Health Service
tivity. Act (42 U.S.C. 295m, 298b-2); Title VII of
(2) In the case of Federal financial as- the Civil Rights Act of 1964 (42 U.S.C.
sistance extended to provide personal 2000e et seq.); the Equal Pay Act of 1963
property, such assurance shall obligate (29 U.S.C. 206); and any other Act of
the recipient for the period during Congress or Federal regulation.
which it retains ownership or posses- (b) Effect of State or local law or other
sion of the property. requirements. The obligation to comply
(3) In all other cases such assurance with these Title IX regulations is not
shall obligate the recipient for the pe- obviated or alleviated by any State or
riod during which Federal financial as- local law or other requirement that
sistance is extended. would render any applicant or student
ineligible, or limit the eligibility of
(c) Form. (1) The assurances required
any applicant or student, on the basis
by paragraph (a) of this section, which of sex, to practice any occupation or
may be included as part of a document profession.
that addresses other assurances or obli- (c) Effect of rules or regulations of pri-
gations, shall include that the appli- vate organizations. The obligation to
cant or recipient will comply with all comply with these Title IX regulations
applicable Federal statutes relating to is not obviated or alleviated by any
nondiscrimination. These include but rule or regulation of any organization,
are not limited to: Title IX of the Edu- club, athletic or other league, or asso-
cation Amendments of 1972, as amend- ciation that would render any appli-
ed (20 U.S.C. 1681–1683, 1685–1688). cant or student ineligible to partici-
(2) The designated agency official pate or limit the eligibility or partici-
will specify the extent to which such pation of any applicant or student, on
assurances will be required of the ap- the basis of sex, in any education pro-
plicant’s or recipient’s subgrantees, gram or activity operated by a recipi-
contractors, subcontractors, trans- ent and that receives Federal financial
ferees, or successors in interest. assistance.
270
§ 25.130 Effect of employment opportu- the protections against discrimination

nities. assured them by Title IX and these
The obligation to comply with these Title IX regulations, but shall state at
Title IX regulations is not obviated or least that the requirement not to dis-
alleviated because employment oppor- criminate in education programs or ac-
tunities in any occupation or profes- tivities extends to employment there-
sion are or may be more limited for in, and to admission thereto unless
members of one sex than for members §§ 25.300 through 25.310 do not apply to
of the other sex. the recipient, and that inquiries con-
cerning the application of Title IX and
§ 25.135 Designation of responsible em- these Title IX regulations to such re-
ployee and adoption of grievance cipient may be referred to the em-
procedures. ployee designated pursuant to § 25.135,
(a) Designation of responsible employee. or to the designated agency official.
Each recipient shall designate at least (2) Each recipient shall make the ini-
one employee to coordinate its efforts tial notification required by paragraph
to comply with and carry out its re- (a)(1) of this section within 90 days of
sponsibilities under these Title IX reg- September 29, 2000 or of the date these
ulations, including any investigation of Title IX regulations first apply to such
any complaint communicated to such recipient, whichever comes later,
recipient alleging its noncompliance which notification shall include publi-
with these Title IX regulations or al- cation in:
leging any actions that would be pro- (i) Newspapers and magazines oper-
hibited by these Title IX regulations. ated by such recipient or by student,
The recipient shall notify all its stu- alumnae, or alumni groups for or in
dents and employees of the name, of- connection with such recipient; and
fice address, and telephone number of (ii) Memoranda or other written com-
the employee or employees appointed munications distributed to every stu-
pursuant to this paragraph. dent and employee of such recipient.
(b) Complaint procedure of recipient. A (b) Publications. (1) Each recipient
recipient shall adopt and publish griev- shall prominently include a statement
ance procedures providing for prompt of the policy described in paragraph (a)
and equitable resolution of student and of this section in each announcement,
employee complaints alleging any ac- bulletin, catalog, or application form
tion that would be prohibited by these that it makes available to any person
Title IX regulations. of a type, described in paragraph (a) of
this section, or which is otherwise used
§ 25.140 Dissemination of policy. in connection with the recruitment of
(a) Notification of policy. (1) Each re- students or employees.
cipient shall implement specific and (2) A recipient shall not use or dis-
continuing steps to notify applicants tribute a publication of the type de-
for admission and employment, stu- scribed in paragraph (b)(1) of this sec-
dents and parents of elementary and tion that suggests, by text or illustra-
secondary school students, employees, tion, that such recipient treats appli-
sources of referral of applicants for ad- cants, students, or employees dif-
mission and employment, and all ferently on the basis of sex except as
unions or professional organizations such treatment is permitted by these
holding collective bargaining or profes- Title IX regulations.
sional agreements with the recipient, (c) Distribution. Each recipient shall
that it does not discriminate on the distribute without discrimination on
basis of sex in the educational pro- the basis of sex each publication de-
grams or activities that it operates, scribed in paragraph (b)(1) of this sec-
and that it is required by Title IX and tion, and shall apprise each of its ad-
these Title IX regulations not to dis- mission and employment recruitment
criminate in such a manner. Such noti- representatives of the policy of non-
fication shall contain such informa- discrimination described in paragraph
tion, and be made in such manner, as (a) of this section, and shall require
the designated agency official finds such representatives to adhere to such
necessary to apprise such persons of policy.
271
Subpart B—Coverage the Young Women’s Christian Associa-

tion (YWCA), the Girl Scouts, the Boy
§ 25.200 Application. Scouts, and Camp Fire Girls.
Except as provided in §§ 25.205 (c) Voluntary youth service organiza-
through 25.235(a), these Title IX regulations. These Title IX regulations do not
tions apply to every recipient and to apply to the membership practices of a
each education program or activity op- voluntary youth service organization
erated by such recipient that receives that is exempt from taxation under
Federal financial assistance. section 501(a) of the Internal Revenue
Code of 1954, 26 U.S.C. 501(a), and the
§ 25.205 Educational institutions and membership of which has been tradi-
other entities controlled by reli-
gious organizations. tionally limited to members of one sex
and principally to persons of less than
(a) Exemption. These Title IX regula- nineteen years of age.
tions do not apply to any operation of
an educational institution or other en- § 25.220 Admissions.
tity that is controlled by a religious
organization to the extent that appli- (a) Admissions to educational insti-
cation of these Title IX regulations tutions prior to June 24, 1973, are not
would not be consistent with the reli- covered by these Title IX regulations.
gious tenets of such organization. (b) Administratively separate units. For
(b) Exemption claims. An educational the purposes only of this section,
institution or other entity that wishes §§ 25.225 and 25.230, and §§ 25.300 through
to claim the exemption set forth in 25.310, each administratively separate
paragraph (a) of this section shall do so unit shall be deemed to be an edu-
by submitting in writing to the des- cational institution.
ignated agency official a statement by (c) Application of §§ 25.300 through .310.
the highest-ranking official of the in- Except as provided in paragraphs (d)
stitution, identifying the provisions of and (e) of this section, §§ 25.300 through
these Title IX regulations that conflict 25.310 apply to each recipient. A recipi-
with a specific tenet of the religious or- ent to which §§ 25.300 through 25.310
ganization. apply shall not discriminate on the
basis of sex in admission or recruit-
§ 25.210 Military and merchant marine ment in violation of §§ 25.300 through
educational institutions.
25.310.
These Title IX regulations do not (d) Educational institutions. Except as
apply to an educational institution provided in paragraph (e) of this sec-
whose primary purpose is the training tion as to recipients that are edu-
of individuals for a military service of cational institutions, §§ 25.300 through
the United States or for the merchant 25.310 apply only to institutions of vo-
marine. cational education, professional edu-
§ 25.215 Membership practices of cer- cation, graduate higher education, and
tain organizations. public institutions of undergraduate
higher education.
(a) Social fraternities and sororities.
These Title IX regulations do not apply (e) Public institutions of undergraduate
to the membership practices of social higher education. §§ 25.300 through 25.310
fraternities and sororities that are ex- do not apply to any public institution
empt from taxation under section of undergraduate higher education that
501(a) of the Internal Revenue Code of traditionally and continually from its
1954, 26 U.S.C. 501(a), the active mem- establishment has had a policy of ad-
bership of which consists primarily of mitting students of only one sex.
students in attendance at institutions
of higher education. § 25.225 Educational institutions eligi-
ble to submit transition plans.
(b) YMCA, YWCA, Girl Scouts, Boy
Scouts, and Camp Fire Girls. These Title (a) Application. This section applies
IX regulations do not apply to the to each educational institution to
membership practices of the Young which §§ 25.300 through 25.310 apply
Men’s Christian Association (YMCA), that:
272
(1) Admitted students of only one sex class during the period covered by the
as regular students as of June 23, 1972; plan.
or (c) Nondiscrimination. No policy or
(2) Admitted students of only one sex practice of a recipient to which § 25.225
as regular students as of June 23, 1965, applies shall result in treatment of ap-
but thereafter admitted, as regular stu- plicants to or students of such recipi-
dents, students of the sex not admitted ent in violation of §§ 25.300 through
prior to June 23, 1965. 25.310 unless such treatment is neces-
(b) Provision for transition plans. An sitated by an obstacle identified in
educational institution to which this paragraph (b)(3) of this section and a
section applies shall not discriminate schedule for eliminating that obstacle
on the basis of sex in admission or re- has been provided as required by para-
cruitment in violation of §§ 25.300 graph (b)(4) of this section.
through 25.310. (d) Effects of past exclusion. To over-
come the effects of past exclusion of
§ 25.230 Transition plans. students on the basis of sex, each edu-
(a) Submission of plans. An institution cational institution to which § 25.225
to which § 25.225 applies and that is applies shall include in its transition
composed of more than one administra- plan, and shall implement, specific
tively separate unit may submit either steps designed to encourage individuals
a single transition plan applicable to of the previously excluded sex to apply
all such units, or a separate transition for admission to such institution. Such
plan applicable to each such unit. steps shall include instituting recruit-
(b) Content of plans. In order to be ap- ment programs that emphasize the in-
proved by the Secretary of Education, stitution’s commitment to enrolling
a transition plan shall: students of the sex previously ex-
(1) State the name, address, and Fed- cluded.
eral Interagency Committee on Edu-
cation Code of the educational institu- § 25.235 Statutory amendments.
tion submitting such plan, the admin- (a) This section, which applies to all
istratively separate units to which the provisions of these Title IX regula-
plan is applicable, and the name, ad- tions, addresses statutory amendments
dress, and telephone number of the per- to Title IX.
son to whom questions concerning the
(b) These Title IX regulations shall
plan may be addressed. The person who
not apply to or preclude:
submits the plan shall be the chief ad-
ministrator or president of the institu- (1) Any program or activity of the
tion, or another individual legally au- American Legion undertaken in con-
thorized to bind the institution to all nection with the organization or oper-
actions set forth in the plan. ation of any Boys State conference,
(2) State whether the educational in- Boys Nation conference, Girls State
stitution or administratively separate conference, or Girls Nation conference;
unit admits students of both sexes as (2) Any program or activity of a sec-
regular students and, if so, when it ondary school or educational institu-
began to do so. tion specifically for:
(3) Identify and describe with respect (i) The promotion of any Boys State
to the educational institution or ad- conference, Boys Nation conference,
ministratively separate unit any obsta- Girls State conference, or Girls Nation
cles to admitting students without dis- conference; or
crimination on the basis of sex. (ii) The selection of students to at-
(4) Describe in detail the steps nec- tend any such conference;
essary to eliminate as soon as prac- (3) Father-son or mother-daughter
ticable each obstacle so identified and activities at an educational institution
indicate the schedule for taking these or in an education program or activity,
steps and the individual directly re- but if such activities are provided for
sponsible for their implementation. students of one sex, opportunities for
(5) Include estimates of the number reasonably comparable activities shall
of students, by sex, expected to apply be provided to students of the other
for, be admitted to, and enter each sex;
273
(4) Any scholarship or other financial (2)(i) Program or activity does not in-
assistance awarded by an institution of clude any operation of an entity that is
higher education to an individual be- controlled by a religious organization
cause such individual has received such if the application of 20 U.S.C. 1681 to
award in a single-sex pageant based such operation would not be consistent
upon a combination of factors related with the religious tenets of such orga-
to the individual’s personal appear- nization.
ance, poise, and talent. The pageant, (ii) For example, all of the operations
however, must comply with other non- of a college, university, or other post-
discrimination provisions of Federal secondary institution, including but
law. not limited to traditional educational
(c) Program or activity or program operations, faculty and student hous-
means: ing, campus shuttle bus service, cam-
(1) All of the operations of any entity pus restaurants, the bookstore, and
described in paragraphs (c)(1)(i) other commercial activities are part of
through (iv) of this section, any part of a ‘‘program or activity’’ subject to
which is extended Federal financial as- these Title IX regulations if the col-
sistance: lege, university, or other institution
(i)(A) A department, agency, special receives Federal financial assistance.
purpose district, or other instrumen- (d)(1) Nothing in these Title IX regu-
tality of a State or of a local govern- lations shall be construed to require or
ment; or prohibit any person, or public or pri-
(B) The entity of such State or local vate entity, to provide or pay for any
government that distributes such as- benefit or service, including the use of
sistance and each such department or facilities, related to an abortion. Med-
agency (and each other State or local ical procedures, benefits, services, and
government entity) to which the as- the use of facilities, necessary to save
sistance is extended, in the case of as- the life of a pregnant woman or to ad-
sistance to a State or local govern- dress complications related to an abor-
ment; tion are not subject to this section.
(ii)(A) A college, university, or other (2) Nothing in this section shall be
postsecondary institution, or a public construed to permit a penalty to be im-
system of higher education; or posed on any person or individual be-
(B) A local educational agency (as de- cause such person or individual is seek-
fined in section 8801 of title 20), system ing or has received any benefit or serv-
of vocational education, or other ice related to a legal abortion. Accord-
school system; ingly, subject to paragraph (d)(1) of
(iii)(A) An entire corporation, part- this section, no person shall be ex-
nership, or other private organization, cluded from participation in, be denied
or an entire sole proprietorship— the benefits of, or be subjected to dis-
crimination under any academic, ex-
(1) If assistance is extended to such
tracurricular, research, occupational
corporation, partnership, private orga-
training, employment, or other edu-
nization, or sole proprietorship as a
cational program or activity operated
whole; or
by a recipient that receives Federal fi-
(2) Which is principally engaged in nancial assistance because such indi-
the business of providing education, vidual has sought or received, or is
health care, housing, social services, or seeking, a legal abortion, or any ben-
parks and recreation; or efit or service related to a legal abor-
(B) The entire plant or other com- tion.
parable, geographically separate facil-
ity to which Federal financial assist-
ance is extended, in the case of any Subpart C—Discrimination on the
other corporation, partnership, private Basis of Sex in Admission and
organization, or sole proprietorship; or Recruitment Prohibited
(iv) Any other entity that is estab-
lished by two or more of the entities § 25.300 Admission.
described in paragraphs (c)(1)(i), (ii), or (a) General. No person shall, on the
(iii) of this section. basis of sex, be denied admission, or be
274
subjected to discrimination in admis- A recipient may make pre-admission

sion, by any recipient to which §§ 25.300 inquiry as to the sex of an applicant for
through §§ 25.310 apply, except as pro- admission, but only if such inquiry is
vided in §§ 25.225 and §§ 25.230. made equally of such applicants of both
(b) Specific prohibitions. (1) In deter- sexes and if the results of such inquiry
mining whether a person satisfies any are not used in connection with dis-
policy or criterion for admission, or in crimination prohibited by these Title
making any offer of admission, a re- IX regulations.
cipient to which §§ 25.300 through 25.310
apply shall not: § 25.305 Preference in admission.
(i) Give preference to one person over A recipient to which §§ 25.300 through
another on the basis of sex, by ranking 25.310 apply shall not give preference to
applicants separately on such basis, or applicants for admission, on the basis
otherwise; of attendance at any educational insti-
(ii) Apply numerical limitations upon tution or other school or entity that
the number or proportion of persons of admits as students only or predomi-
either sex who may be admitted; or nantly members of one sex, if the giv-
(iii) Otherwise treat one individual ing of such preference has the effect of
differently from another on the basis of discriminating on the basis of sex in
sex. violation of §§ 25.300 through 25.310.
(2) A recipient shall not administer
or operate any test or other criterion § 25.310 Recruitment.
for admission that has a disproportion- (a) Nondiscriminatory recruitment. A
ately adverse effect on persons on the recipient to which §§ 25.300 through
basis of sex unless the use of such test 25.310 apply shall not discriminate on
or criterion is shown to predict validly the basis of sex in the recruitment and
success in the education program or ac- admission of students. A recipient may
tivity in question and alternative tests be required to undertake additional re-
or criteria that do not have such a dis- cruitment efforts for one sex as reme-
proportionately adverse effect are dial action pursuant to § 25.110(a), and
shown to be unavailable. may choose to undertake such efforts
(c) Prohibitions relating to marital or as affirmative action pursuant to
parental status. In determining whether § 25.110(b).
a person satisfies any policy or cri- (b) Recruitment at certain institutions.
terion for admission, or in making any A recipient to which §§ 25.300 through
offer of admission, a recipient to which 25.310 apply shall not recruit primarily
§§ 25.300 through 25.310 apply: or exclusively at educational institu-
(1) Shall not apply any rule con- tions, schools, or entities that admit as
cerning the actual or potential paren- students only or predominantly mem-
tal, family, or marital status of a stu- bers of one sex, if such actions have the
dent or applicant that treats persons effect of discriminating on the basis of
differently on the basis of sex; sex in violation of §§ 25.300 through
(2) Shall not discriminate against or 25.310.
exclude any person on the basis of
pregnancy, childbirth, termination of Subpart D—Discrimination on the
pregnancy, or recovery therefrom, or Basis of Sex in Education Pro-
establish or follow any rule or practice grams or Activities Prohibited
that so discriminates or excludes;
(3) Subject to § 25.235(d), shall treat § 25.400 Education programs or activi-
disabilities related to pregnancy, child- ties.
birth, termination of pregnancy, or re- (a) General. Except as provided else-
covery therefrom in the same manner where in these Title IX regulations, no
and under the same policies as any person shall, on the basis of sex, be ex-
other temporary disability or physical cluded from participation in, be denied
condition; and the benefits of, or be subjected to dis-
(4) Shall not make pre-admission in- crimination under any academic, ex-
quiry as to the marital status of an ap- tracurricular, research, occupational
plicant for admission, including wheth- training, or other education program
er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ or activity operated by a recipient that
275
receives Federal financial assistance. tration of such scholarships, fellow-

Sections 25.400 through 25.455 do not ships, or other awards that are re-
apply to actions of a recipient in con- stricted to members of one sex pro-
nection with admission of its students vides, or otherwise makes available,
to an education program or activity of reasonable opportunities for similar
a recipient to which §§ 25.300 through studies for members of the other sex.
25.310 do not apply, or an entity, not a Such opportunities may be derived
recipient, to which §§ 25.300 through from either domestic or foreign
25.310 would not apply if the entity sources.
were a recipient. (d) Aids, benefits or services not pro-
(b) Specific prohibitions. Except as provided by recipient. (1) This paragraph (d)
vided in §§ 25.400 through 25.455, in pro- applies to any recipient that requires
viding any aid, benefit, or service to a participation by any applicant, stu-
student, a recipient shall not, on the dent, or employee in any education
basis of sex: program or activity not operated whol-
(1) Treat one person differently from ly by such recipient, or that facilitates,
another in determining whether such permits, or considers such participa-
person satisfies any requirement or tion as part of or equivalent to an edu-
condition for the provision of such aid,
cation program or activity operated by
benefit, or service;
such recipient, including participation
(2) Provide different aid, benefits, or
in educational consortia and coopera-
services or provide aid, benefits, or
tive employment and student-teaching
services in a different manner;
assignments.
(3) Deny any person any such aid,
benefit, or service; (2) Such recipient:
(4) Subject any person to separate or (i) Shall develop and implement a
different rules of behavior, sanctions, procedure designed to assure itself that
or other treatment; the operator or sponsor of such other
(5) Apply any rule concerning the education program or activity takes no
domicile or residence of a student or action affecting any applicant, student,
applicant, including eligibility for in- or employee of such recipient that
state fees and tuition; these Title IX regulations would pro-
(6) Aid or perpetuate discrimination hibit such recipient from taking; and
against any person by providing sig- (ii) Shall not facilitate, require, per-
nificant assistance to any agency, or- mit, or consider such participation if
ganization, or person that discrimi- such action occurs.
nates on the basis of sex in providing
any aid, benefit, or service to students § 25.405 Housing.
or employees; (a) Generally. A recipient shall not,
(7) Otherwise limit any person in the on the basis of sex, apply different
enjoyment of any right, privilege, ad- rules or regulations, impose different
vantage, or opportunity. fees or requirements, or offer different
(c) Assistance administered by a recipi- services or benefits related to housing,
ent educational institution to study at a except as provided in this section (in-
foreign institution. A recipient edu- cluding housing provided only to mar-
cational institution may administer or
ried students).
assist in the administration of scholar-
(b) Housing provided by recipient. (1) A
ships, fellowships, or other awards es-
tablished by foreign or domestic wills, recipient may provide separate housing
trusts, or similar legal instruments, or on the basis of sex.
by acts of foreign governments and re- (2) Housing provided by a recipient to
stricted to members of one sex, that students of one sex, when compared to
are designed to provide opportunities that provided to students of the other
to study abroad, and that are awarded sex, shall be as a whole:
to students who are already matricu- (i) Proportionate in quantity to the
lating at or who are graduates of the number of students of that sex apply-
recipient institution; Provided, that a ing for such housing; and
recipient educational institution that (ii) Comparable in quality and cost to
administers or assists in the adminis- the student.
276
(c) Other housing. (1) A recipient shall (2) This section does not prohibit
not, on the basis of sex, administer dif- grouping of students in physical edu-
ferent policies or practices concerning cation classes and activities by ability
occupancy by its students of housing as assessed by objective standards of
other than that provided by such re- individual performance developed and
cipient. applied without regard to sex.
(2)(i) A recipient which, through so- (3) This section does not prohibit sep-
licitation, listing, approval of housing, aration of students by sex within phys-
or otherwise, assists any agency, orga- ical education classes or activities dur-
nization, or person in making housing ing participation in wrestling, boxing,
available to any of its students, shall rugby, ice hockey, football, basketball,
take such reasonable action as may be and other sports the purpose or major
necessary to assure itself that such activity of which involves bodily con-
housing as is provided to students of tact.
one sex, when compared to that pro- (4) Where use of a single standard of
vided to students of the other sex, is as measuring skill or progress in a phys-
a whole: ical education class has an adverse ef-
(A) Proportionate in quantity; and fect on members of one sex, the recipi-
(B) Comparable in quality and cost to ent shall use appropriate standards
the student. that do not have such effect.
(ii) A recipient may render such as- (5) Portions of classes in elementary
sistance to any agency, organization, and secondary schools, or portions of
or person that provides all or part of education programs or activities, that
such housing to students of only one deal exclusively with human sexuality
sex. may be conducted in separate sessions
for boys and girls.
§ 25.410 Comparable facilities. (6) Recipients may make require-
A recipient may provide separate toi- ments based on vocal range or quality
let, locker room, and shower facilities that may result in a chorus or choruses
on the basis of sex, but such facilities of one or predominantly one sex.
provided for students of one sex shall
be comparable to such facilities pro- § 25.420 Access to schools operated by
LEAs.
vided for students of the other sex.
A recipient that is a local edu-
§ 25.415 Access to course offerings. cational agency shall not, on the basis
(a) A recipient shall not provide any of sex, exclude any person from admis-
course or otherwise carry out any of its sion to:
education program or activity sepa- (a) Any institution of vocational edu-
rately on the basis of sex, or require or cation operated by such recipient; or
refuse participation therein by any of (b) Any other school or educational
its students on such basis, including unit operated by such recipient, unless
health, physical education, industrial, such recipient otherwise makes avail-
business, vocational, technical, home able to such person, pursuant to the
economics, music, and adult education same policies and criteria of admission,
courses. courses, services, and facilities com-
(b)(1) With respect to classes and ac- parable to each course, service, and fa-
tivities in physical education at the el- cility offered in or through such
ementary school level, the recipient schools.
shall comply fully with this section as
expeditiously as possible but in no § 25.425 Counseling and use of ap-
praisal and counseling materials.
event later than one year from Sep-
tember 29, 2000. With respect to phys- (a) Counseling. A recipient shall not
ical education classes and activities at discriminate against any person on the
the secondary and post-secondary lev- basis of sex in the counseling or guid-
els, the recipient shall comply fully ance of students or applicants for ad-
with this section as expeditiously as mission.
possible but in no event later than (b) Use of appraisal and counseling ma-
three years from September 29, 2000. terials. A recipient that uses testing or
277
other materials for appraising or coun- (b) Financial aid established by certain
seling students shall not use different legal instruments. (1) A recipient may
materials for students on the basis of administer or assist in the administra-
their sex or use materials that permit tion of scholarships, fellowships, or
or require different treatment of stu- other forms of financial assistance es-
dents on such basis unless such dif- tablished pursuant to domestic or for-
ferent materials cover the same occu- eign wills, trusts, bequests, or similar
pations and interest areas and the use legal instruments or by acts of a for-
of such different materials is shown to eign government that require that
be essential to eliminate sex bias. Re- awards be made to members of a par-
cipients shall develop and use internal ticular sex specified therein; Provided,
procedures for ensuring that such ma- that the overall effect of the award of
terials do not discriminate on the basis such sex-restricted scholarships, fel-
of sex. Where the use of a counseling lowships, and other forms of financial
test or other instrument results in a
assistance does not discriminate on the
substantially disproportionate number
basis of sex.
of members of one sex in any particular
course of study or classification, the (2) To ensure nondiscriminatory
recipient shall take such action as is awards of assistance as required in
necessary to assure itself that such dis- paragraph (b)(1) of this section, recipi-
proportion is not the result of discrimi- ents shall develop and use procedures
nation in the instrument or its applica- under which:
tion. (i) Students are selected for award of
(c) Disproportion in classes. Where a financial assistance on the basis of
recipient finds that a particular class nondiscriminatory criteria and not on
contains a substantially dispropor- the basis of availability of funds re-
tionate number of individuals of one stricted to members of a particular sex;
sex, the recipient shall take such ac- (ii) An appropriate sex-restricted
tion as is necessary to assure itself scholarship, fellowship, or other form
that such disproportion is not the re- of financial assistance is allocated to
sult of discrimination on the basis of each student selected under paragraph
sex in counseling or appraisal mate- (b)(2)(i) of this section; and
rials or by counselors. (iii) No student is denied the award
for which he or she was selected under
§ 25.430 Financial assistance. paragraph (b)(2)(i) of this section be-
(a) General. Except as provided in cause of the absence of a scholarship,
paragraphs (b) and (c) of this section, fellowship, or other form of financial
in providing financial assistance to any assistance designated for a member of
of its students, a recipient shall not: that student’s sex.
(1) On the basis of sex, provide dif- (c) Athletic scholarships. (1) To the ex-
ferent amounts or types of such assist- tent that a recipient awards athletic
ance, limit eligibility for such assist- scholarships or grants-in-aid, it must
ance that is of any particular type or provide reasonable opportunities for
source, apply different criteria, or oth- such awards for members of each sex in
erwise discriminate; proportion to the number of students
(2) Through solicitation, listing, ap- of each sex participating in inter-
proval, provision of facilities, or other scholastic or intercollegiate athletics.
services, assist any foundation, trust, (2) A recipient may provide separate
agency, organization, or person that athletic scholarships or grants-in-aid
provides assistance to any of such re-
for members of each sex as part of sep-
cipient’s students in a manner that dis-
arate athletic teams for members of
criminates on the basis of sex; or
each sex to the extent consistent with
(3) Apply any rule or assist in appli-
this paragraph (c) and § 25.450.
cation of any rule concerning eligi-
bility for such assistance that treats
persons of one sex differently from per-
sons of the other sex with regard to
marital or parental status.
278
§ 25.435 Employment assistance to stu- physician that the student is phys-

dents. ically and emotionally able to continue
(a) Assistance by recipient in making participation as long as such a certifi-
available outside employment. A recipi- cation is required of all students for
ent that assists any agency, organiza- other physical or emotional conditions
tion, or person in making employment requiring the attention of a physician.
available to any of its students: (3) A recipient that operates a por-
(1) Shall assure itself that such em- tion of its education program or activ-
ployment is made available without ity separately for pregnant students,
discrimination on the basis of sex; and admittance to which is completely vol-
(2) Shall not render such services to untary on the part of the student as
any agency, organization, or person provided in paragraph (b)(1) of this sec-
that discriminates on the basis of sex tion, shall ensure that the separate
in its employment practices. portion is comparable to that offered
(b) Employment of students by recipi- to non-pregnant students.
ents. A recipient that employs any of (4) Subject to § 25.235(d), a recipient
its students shall not do so in a manner shall treat pregnancy, childbirth, false
that violates §§ 25.500 through 25.550. pregnancy, termination of pregnancy
and recovery therefrom in the same
§ 25.440 Health and insurance benefits manner and under the same policies as
and services. any other temporary disability with re-
Subject to § 25.235(d), in providing a spect to any medical or hospital ben-
medical, hospital, accident, or life in- efit, service, plan, or policy that such
surance benefit, service, policy, or plan recipient administers, operates, offers,
to any of its students, a recipient shall or participates in with respect to stu-
not discriminate on the basis of sex, or dents admitted to the recipient’s edu-
provide such benefit, service, policy, or cational program or activity.
plan in a manner that would violate (5) In the case of a recipient that does
§§ 25.500 through 25.550 if it were pro- not maintain a leave policy for its stu-
vided to employees of the recipient. dents, or in the case of a student who
This section shall not prohibit a recipi- does not otherwise qualify for leave
ent from providing any benefit or serv- under such a policy, a recipient shall
ice that may be used by a different pro- treat pregnancy, childbirth, false preg-
portion of students of one sex than of nancy, termination of pregnancy, and
the other, including family planning recovery therefrom as a justification
services. However, any recipient that for a leave of absence for as long a pe-
provides full coverage health service riod of time as is deemed medically
shall provide gynecological care. necessary by the student’s physician,
at the conclusion of which the student
§ 25.445 Marital or parental status. shall be reinstated to the status that
(a) Status generally. A recipient shall she held when the leave began.
not apply any rule concerning a stu-
dent’s actual or potential parental, § 25.450 Athletics.
family, or marital status that treats (a) General. No person shall, on the
students differently on the basis of sex. basis of sex, be excluded from partici-
(b) Pregnancy and related conditions. pation in, be denied the benefits of, be
(1) A recipient shall not discriminate treated differently from another per-
against any student, or exclude any son, or otherwise be discriminated
student from its education program or against in any interscholastic, inter-
activity, including any class or extra- collegiate, club, or intramural ath-
curricular activity, on the basis of such letics offered by a recipient, and no re-
student’s pregnancy, childbirth, false cipient shall provide any such athletics
pregnancy, termination of pregnancy, separately on such basis.
or recovery therefrom, unless the stu- (b) Separate teams. Notwithstanding
dent requests voluntarily to partici- the requirements of paragraph (a) of
pate in a separate portion of the pro- this section, a recipient may operate or
gram or activity of the recipient. sponsor separate teams for members of
(2) A recipient may require such a each sex where selection for such
student to obtain the certification of a teams is based upon competitive skill
279
or the activity involved is a contact (d) Adjustment period. A recipient that

sport. However, where a recipient oper- operates or sponsors interscholastic,
ates or sponsors a team in a particular intercollegiate, club, or intramural
sport for members of one sex but oper- athletics at the elementary school
ates or sponsors no such team for mem- level shall comply fully with this sec-
bers of the other sex, and athletic option as expeditiously as possible but in
portunities for members of that sex no event later than one year from Sep-
have previously been limited, members tember 29, 2000. A recipient that oper-
of the excluded sex must be allowed to ates or sponsors interscholastic, inter-
try out for the team offered unless the collegiate, club, or intramural ath-
sport involved is a contact sport. For letics at the secondary or postsec-
the purposes of these Title IX regula- ondary school level shall comply fully
tions, contact sports include boxing, with this section as expeditiously as
wrestling, rugby, ice hockey, football, possible but in no event later than
basketball, and other sports the pur- three years from September 29, 2000.
pose or major activity of which in-
volves bodily contact. § 25.455 Textbooks and curricular ma-
(c) Equal opportunity. (1) A recipient terial.
that operates or sponsors inter- Nothing in these Title IX regulations
scholastic, intercollegiate, club, or in- shall be interpreted as requiring or pro-
tramural athletics shall provide equal
hibiting or abridging in any way the
athletic opportunity for members of
use of particular textbooks or cur-
both sexes. In determining whether
ricular materials.
equal opportunities are available, the
designated agency official will con-
sider, among other factors: Subpart E—Discrimination on the
(i) Whether the selection of sports Basis of Sex in Employment in
and levels of competition effectively Education Programs or Activi-
accommodate the interests and abilities Prohibited
ties of members of both sexes;
(ii) The provision of equipment and § 25.500 Employment.
supplies; (a) General. (1) No person shall, on
(iii) Scheduling of games and prac- the basis of sex, be excluded from par-
tice time; ticipation in, be denied the benefits of,
(iv) Travel and per diem allowance; or be subjected to discrimination in
(v) Opportunity to receive coaching employment, or recruitment, consider-
and academic tutoring; ation, or selection therefor, whether
(vi) Assignment and compensation of full-time or part-time, under any edu-
coaches and tutors; cation program or activity operated by
(vii) Provision of locker rooms, prac- a recipient that receives Federal finan-
tice, and competitive facilities; cial assistance.
(viii) Provision of medical and train- (2) A recipient shall make all em-
ing facilities and services; ployment decisions in any education
(ix) Provision of housing and dining program or activity operated by such
facilities and services; recipient in a nondiscriminatory man-
(x) Publicity. ner and shall not limit, segregate, or
(2) For purposes of paragraph (c)(1) of classify applicants or employees in any
this section, unequal aggregate expend- way that could adversely affect any ap-
itures for members of each sex or un- plicant’s or employee’s employment
equal expenditures for male and female opportunities or status because of sex.
teams if a recipient operates or spon- (3) A recipient shall not enter into
sors separate teams will not constitute any contractual or other relationship
noncompliance with this section, but which directly or indirectly has the ef-
the designated agency official may fect of subjecting employees or stu-
consider the failure to provide nec- dents to discrimination prohibited by
essary funds for teams for one sex in §§ 25.500 through 25.550, including rela-
assessing equality of opportunity for tionships with employment and refer-
members of each sex. ral agencies, with labor unions, and
280
with organizations providing or admin- (a) Use of such test or other criterion
istering fringe benefits to employees of is shown to predict validly successful
the recipient. performance in the position in ques-
(4) A recipient shall not grant pref- tion; and
erences to applicants for employment (b) Alternative tests or criteria for
on the basis of attendance at any edu- such purpose, which do not have such
cational institution or entity that ad- disproportionately adverse effect, are
mits as students only or predominantly shown to be unavailable.
members of one sex, if the giving of
such preferences has the effect of dis- § 25.510 Recruitment.
criminating on the basis of sex in vio- (a) Nondiscriminatory recruitment and
lation of these Title IX regulations. hiring. A recipient shall not discrimi-
(b) Application. The provisions of nate on the basis of sex in the recruit-
§§ 25.500 through 25.550 apply to: ment and hiring of employees. Where a
(1) Recruitment, advertising, and the recipient has been found to be pres-
process of application for employment; ently discriminating on the basis of sex
(2) Hiring, upgrading, promotion, in the recruitment or hiring of employ-
consideration for and award of tenure, ees, or has been found to have so dis-
demotion, transfer, layoff, termi- criminated in the past, the recipient
nation, application of nepotism poli- shall recruit members of the sex so dis-
cies, right of return from layoff, and criminated against so as to overcome
rehiring; the effects of such past or present dis-
(3) Rates of pay or any other form of crimination.
compensation, and changes in com- (b) Recruitment patterns. A recipient
pensation; shall not recruit primarily or exclu-
(4) Job assignments, classifications, sively at entities that furnish as appli-
and structure, including position de- cants only or predominantly members
scriptions, lines of progression, and se- of one sex if such actions have the ef-
niority lists; fect of discriminating on the basis of
(5) The terms of any collective bar- sex in violation of §§ 25.500 through
gaining agreement; 25.550.
(6) Granting and return from leaves
of absence, leave for pregnancy, child- § 25.515 Compensation.
birth, false pregnancy, termination of A recipient shall not make or enforce
pregnancy, leave for persons of either any policy or practice that, on the
sex to care for children or dependents, basis of sex:
or any other leave; (a) Makes distinctions in rates of pay
(7) Fringe benefits available by vir- or other compensation;
tue of employment, whether or not ad- (b) Results in the payment of wages
ministered by the recipient; to employees of one sex at a rate less
(8) Selection and financial support than that paid to employees of the op-
for training, including apprenticeship, posite sex for equal work on jobs the
professional meetings, conferences, and performance of which requires equal
other related activities, selection for skill, effort, and responsibility, and
tuition assistance, selection for that are performed under similar work-
sabbaticals and leaves of absence to ing conditions.
pursue training;
(9) Employer-sponsored activities, in- § 25.520 Job classification and struc-
cluding social or recreational pro- ture.
grams; and A recipient shall not:
(10) Any other term, condition, or (a) Classify a job as being for males
privilege of employment. or for females;
(b) Maintain or establish separate
§ 25.505 Employment criteria. lines of progression, seniority lists, ca-
A recipient shall not administer or reer ladders, or tenure systems based
operate any test or other criterion for on sex; or
any employment opportunity that has (c) Maintain or establish separate
a disproportionately adverse effect on lines of progression, seniority systems,
persons on the basis of sex unless: career ladders, or tenure systems for
281
similar jobs, position descriptions, or (c) Pregnancy as a temporary disability.

job requirements that classify persons Subject to § 25.235(d), a recipient shall
on the basis of sex, unless sex is a bona treat pregnancy, childbirth, false preg-
fide occupational qualification for the nancy, termination of pregnancy, re-
positions in question as set forth in covery therefrom, and any temporary
§ 25.550. disability resulting therefrom as any
other temporary disability for all job-
§ 25.525 Fringe benefits. related purposes, including commence-
(a) ‘‘Fringe benefits’’ defined. For pur- ment, duration, and extensions of
poses of these Title IX regulations, leave, payment of disability income,
fringe benefits means: Any medical, hos- accrual of seniority and any other ben-
pital, accident, life insurance, or re- efit or service, and reinstatement, and
tirement benefit, service, policy or under any fringe benefit offered to em-
plan, any profit-sharing or bonus plan, ployees by virtue of employment.
leave, and any other benefit or service (d) Pregnancy leave. In the case of a
of employment not subject to the pro- recipient that does not maintain a
vision of § 25.515. leave policy for its employees, or in the
(b) Prohibitions. A recipient shall not: case of an employee with insufficient
(1) Discriminate on the basis of sex leave or accrued employment time to
with regard to making fringe benefits qualify for leave under such a policy, a
available to employees or make fringe recipient shall treat pregnancy, child-
benefits available to spouses, families, birth, false pregnancy, termination of
or dependents of employees differently pregnancy, and recovery therefrom as a
upon the basis of the employee’s sex; justification for a leave of absence
without pay for a reasonable period of
(2) Administer, operate, offer, or par-
time, at the conclusion of which the
ticipate in a fringe benefit plan that
employee shall be reinstated to the sta-
does not provide for equal periodic ben-
tus that she held when the leave began
efits for members of each sex and for
or to a comparable position, without
equal contributions to the plan by such
decrease in rate of compensation or
recipient for members of each sex; or
loss of promotional opportunities, or
(3) Administer, operate, offer, or par- any other right or privilege of employ-
ticipate in a pension or retirement plan ment.
that establishes different optional or
compulsory retirement ages based on § 25.535 Effect of state or local law or
sex or that otherwise discriminates in other requirements.
benefits on the basis of sex. (a) Prohibitory requirements. The obli-
gation to comply with §§ 25.500 through
§ 25.530 Marital or parental status.
25.550 is not obviated or alleviated by
(a) General. A recipient shall not the existence of any State or local law
apply any policy or take any employ- or other requirement that imposes pro-
ment action: hibitions or limits upon employment of
(1) Concerning the potential marital, members of one sex that are not im-
parental, or family status of an em- posed upon members of the other sex.
ployee or applicant for employment (b) Benefits. A recipient that provides
that treats persons differently on the any compensation, service, or benefit
basis of sex; or to members of one sex pursuant to a
(2) Which is based upon whether an State or local law or other requirement
employee or applicant for employment shall provide the same compensation,
is the head of household or principal service, or benefit to members of the
wage earner in such employee’s or ap- other sex.
plicant’s family unit.
(b) Pregnancy. A recipient shall not § 25.540 Advertising.
discriminate against or exclude from A recipient shall not in any adver-
employment any employee or applicant tising related to employment indicate
for employment on the basis of preg- preference, limitation, specification, or
nancy, childbirth, false pregnancy, ter- discrimination based on sex unless sex
mination of pregnancy, or recovery is a bona fide occupational qualifica-
therefrom. tion for the particular job in question.
282
§ 25.545 Pre-employment inquiries. Title VI of the Civil Rights Act of 1964

(42 U.S.C. 2000d) (‘‘Title VI’’) are hereby
(a) Marital status. A recipient shall
adopted and applied to these Title IX
not make pre-employment inquiry as
regulations. These procedures may be
to the marital status of an applicant
found at 49 CFR part 21.
for employment, including whether
such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ [65 FR 52895, Aug. 30, 2000]
(b) Sex. A recipient may make pre-
employment inquiry as to the sex of an PART 26—PARTICIPATION BY DIS-
applicant for employment, but only if ADVANTAGED BUSINESS ENTER-
such inquiry is made equally of such PRISES IN DEPARTMENT OF
applicants of both sexes and if the re-
sults of such inquiry are not used in
TRANSPORTATION FINANCIAL
connection with discrimination prohib- ASSISTANCE PROGRAMS
ited by these Title IX regulations.
Subpart A—General
§ 25.550 Sex as a bona fide occupa- Sec.
tional qualification. 26.1 What are the objectives of this part?
A recipient may take action other- 26.3 To whom does this part apply?
wise prohibited by §§ 25.500 through 26.5 What do the terms used in this part
25.550 provided it is shown that sex is a mean?
26.7 What discriminatory actions are forbid-
bona fide occupational qualification for den?
that action, such that consideration of 26.9 How does the Department issue guid-
sex with regard to such action is essen- ance and interpretations under this part?
tial to successful operation of the em- 26.11 What records do recipients keep and
ployment function concerned. A recipi- report?
ent shall not take action pursuant to 26.13 What assurances must recipients and
this section that is based upon alleged contractors make?
26.15 How can recipients apply for exemp-
comparative employment characteris-
tions or waivers?
tics or stereotyped characterizations of
one or the other sex, or upon pref- Subpart B—Administrative Requirements
erence based on sex of the recipient, for DBE Programs for Federally-Assisted
employees, students, or other persons, Contracting
but nothing contained in this section
shall prevent a recipient from consid- 26.21 Who must have a DBE program?
ering an employee’s sex in relation to 26.23 What is the requirement for a policy
statement?
employment in a locker room or toilet 26.25 What is the requirement for a liaison
facility used only by members of one officer?
sex. 26.27 What efforts must recipients make
concerning DBE financial institutions?
Subpart F—Procedures 26.29 What prompt payment mechanisms
must recipients have?
§ 25.600 Notice of covered programs. 26.31 What requirements pertain to the DBE
directory?
Within 60 days of September 29, 2000, 26.33 What steps must a recipient take to
each Federal agency that awards Fed- address overconcentration of DBEs in
eral financial assistance shall publish certain types of work?
in the FEDERAL REGISTER a notice of 26.35 What role do business development
the programs covered by these Title IX and mentor-protégé programs have in the
DBE program?
regulations. Each such Federal agency
26.37 What are a recipient’s responsibilities
shall periodically republish the notice for monitoring the performance of other
of covered programs to reflect changes program participants?
in covered programs. Copies of this no-
tice also shall be made available upon Subpart C—Goals, Good Faith Efforts, and
request to the Federal agency’s office Counting
that enforces Title IX.
26.41 What is the role of the statutory 10
§ 25.605 Enforcement procedures. percent goal in this program?
26.43 Can recipients use set-asides or quotas
The investigative, compliance, and as part of this program?
enforcement procedural provisions of 26.45 How do recipients set overall goals?
283
26.47 Can recipients be penalized for failing APPENDIX B TO PART 26—UNIFORM REPORT OF
to meet overall goals? DBE AWARDS OR COMMITMENTS AND PAY-
26.49 How are overall goals established for MENTS FORM
transit vehicle manufacturers? APPENDIX C TO PART 26—DBE BUSINESS DE-
26.51 What means do recipients use to meet VELOPMENT PROGRAM GUIDELINES
overall goals? APPENDIX D TO PART 26—MENTOR-PROTÉGÉ
26.53 What are the good faith efforts proce- PROGRAM GUIDELINES
dures recipients follow in situations APPENDIX E TO PART 26—INDIVIDUAL DETER-
where there are contract goals? MINATIONS OF SOCIAL AND ECONOMIC DIS-
26.55 How is DBE participation counted to- ADVANTAGE
ward goals? APPENDIX F TO PART 26—UNIFORM CERTIFI-
CATION APPLICATION FORM
Subpart D—Certification Standards AUTHORITY: 23 U.S.C. 324; 42 U.S.C. 2000d, et
26.61 How are burdens of proof allocated in seq.; 49 U.S.C 1615, 47107, 47113, 47123; Sec.
the certification process? 1101(b), Pub. L. 105–178, 112 Stat. 107, 113.
26.63 What rules govern group membership SOURCE: 64 FR 5126, Feb. 2, 1999, unless oth-
determinations? erwise noted.
26.65 What rules govern business size deter-
minations?
26.67 What rules determine social and eco- Subpart A—General
nomic disadvantage?
26.69 What rules govern determinations of § 26.1 What are the objectives of this
ownership? part?
26.71 What rules govern determinations con- This part seeks to achieve several ob-
cerning control? jectives:
26.73 What are other rules affecting certifi- (a) To ensure nondiscrimination in
cation?
the award and administration of DOT-
Subpart E—Certification Procedures assisted contracts in the Department’s
highway, transit, and airport financial
26.81 What are the requirements for Unified assistance programs;
Certification Programs? (b) To create a level playing field on
26.83 What procedures do recipients follow which DBEs can compete fairly for
in making certification decisions?
DOT-assisted contracts;
26.84 How do recipients process applications
submitted pursuant to the DOT/SBA (c) To ensure that the Department’s
MOU? DBE program is narrowly tailored in
26.85 How do recipients respond to requests accordance with applicable law;
from DBE-certified firms or the SBA (d) To ensure that only firms that
made pursuant to the DOT/SBA MOU? fully meet this part’s eligibility stand-
26.86 What rules govern recipients’ denials ards are permitted to participate as
of initial requests for certification? DBEs;
26.87 What procedures does a recipient use (e) To help remove barriers to the
to remove a DBE’s eligibility?
26.89 What is the process for certification
participation of DBEs in DOT-assisted
appeals to the Department of Transpor- contracts;
tation? (f) To assist the development of firms
26.91 What actions do recipients take fol- that can compete successfully in the
lowing DOT certification appeal deci- marketplace outside the DBE program;
sions? and
(g) To provide appropriate flexibility
Subpart F—Compliance and Enforcement to recipients of Federal financial as-
26.101 What compliance procedures apply to sistance in establishing and providing
recipients? opportunities for DBEs.
26.103 What enforcement actions apply in
FHWA and FTA programs? § 26.3 To whom does this part apply?
26.105 What enforcement actions apply in (a) If you are a recipient of any of the
FAA programs?
26.107 What enforcement actions apply to
following types of funds, this part ap-
firms participating in the DBE program? plies to you:
26.109 What are the rules governing infor- (1) Federal-aid highway funds author-
mation, confidentiality, cooperation, and ized under Titles I (other than Part B)
intimidation or retaliation? and V of the Intermodal Surface Trans-
APPENDIX A TO PART 26—GUIDANCE CON- portation Efficiency Act of 1991
CERNING GOOD FAITH EFFORTS (ISTEA), Pub. L. 102–240, 105 Stat. 1914,
284
or Titles I, III, and V of the Transpor- of a minimum blood quantum, any cit-
tation Equity Act for the 21st Century izen whom a Native village or Native
(TEA–21), Pub. L. 105–178, 112 Stat. 107. group regards as an Alaska Native if
(2) Federal transit funds authorized their father or mother is regarded as
by Titles I, III, V and VI of ISTEA, an Alaska Native.
Pub. L. 102–240 or by Federal transit Alaska Native Corporation (ANC)
laws in Title 49, U.S. Code, or Titles I, means any Regional Corporation, Vil-
III, and V of the TEA–21, Pub. L. 105– lage Corporation, Urban Corporation,
178. or Group Corporation organized under
(3) Airport funds authorized by 49 the laws of the State of Alaska in ac-
U.S.C. 47101, et seq. cordance with the Alaska Native
(b) [Reserved] Claims Settlement Act, as amended (43
(c) If you are letting a contract, and
U.S.C. 1601, et seq.).
that contract is to be performed en-
Compliance means that a recipient
tirely outside the United States, its
territories and possessions, Puerto has correctly implemented the require-
Rico, Guam, or the Northern Marianas ments of this part.
Islands, this part does not apply to the Contract means a legally binding re-
contract. lationship obligating a seller to furnish
(d) If you are letting a contract in supplies or services (including, but not
which DOT financial assistance does limited to, construction and profes-
not participate, this part does not sional services) and the buyer to pay
apply to the contract. for them. For purposes of this part, a
lease is considered to be a contract.
§ 26.5 What do the terms used in this Contractor means one who partici-
part mean? pates, through a contract or sub-
Affiliation has the same meaning the contract (at any tier), in a DOT-as-
term has in the Small Business Admin- sisted highway, transit, or airport pro-
istration (SBA) regulations, 13 CFR gram.
part 121. Department or DOT means the U.S.
(1) Except as otherwise provided in 13 Department of Transportation, includ-
CFR part 121, concerns are affiliates of ing the Office of the Secretary, the
each other when, either directly or in- Federal Highway Administration
directly: (FHWA), the Federal Transit Adminis-
(i) One concern controls or has the tration (FTA), and the Federal Avia-
power to control the other; or tion Administration (FAA).
(ii) A third party or parties controls Disadvantaged business enterprise or
or has the power to control both; or DBE means a for-profit small business
(iii) An identity of interest between concern—
or among parties exists such that af-
(1) That is at least 51 percent owned
filiation may be found.
by one or more individuals who are
(2) In determining whether affiliation
both socially and economically dis-
exists, it is necessary to consider all
advantaged or, in the case of a corpora-
appropriate factors, including common
ownership, common management, and tion, in which 51 percent of the stock is
contractual relationships. Affiliates owned by one or more such individuals;
must be considered together in deter- and
mining whether a concern meets small (2) Whose management and daily
business size criteria and the statutory business operations are controlled by
cap on the participation of firms in the one or more of the socially and eco-
DBE program. nomically disadvantaged individuals
Alaska Native means a citizen of the who own it.
United States who is a person of one- DOT-assisted contract means any con-
fourth degree or more Alaskan Indian tract between a recipient and a con-
(including Tsimshian Indians not en- tractor (at any tier) funded in whole or
rolled in the Metlaktla Indian Commu- in part with DOT financial assistance,
nity), Eskimo, or Aleut blood, or a including letters of credit or loan guar-
combination of those bloodlines. The antees, except a contract solely for the
term includes, in the absence of proof purchase of land.
285
DOT/SBA Memorandum of Under- ians, and whose business activities will

standing or MOU, refers to the agree- principally benefit such Native Hawai-
ment signed on November 23, 1999, be- ians.
tween the Department of Transpor- Noncompliance means that a recipient
tation (DOT) and the Small Business has not correctly implemented the re-
Administration (SBA) streamlining quirements of this part.
certification procedures for participa- Operating Administration or OA means
tion in SBA’s 8(a) Business Develop- any of the following parts of DOT: the
ment (8(a) BD) and Small Disadvan- Federal Aviation Administration
taged Business (SDB) programs, and (FAA), Federal Highway Administra-
DOT’s Disadvantaged Business Enter- tion (FHWA), and Federal Transit Ad-
prise (DBE) program for small and dis- ministration (FTA). The ‘‘Adminis-
advantaged businesses. trator’’ of an operating administration
Good faith efforts means efforts to includes his or her designees.
achieve a DBE goal or other require- Personal net worth means the net
ment of this part which, by their scope, value of the assets of an individual re-
intensity, and appropriateness to the maining after total liabilities are de-
objective, can reasonably be expected ducted. An individual’s personal net
to fulfill the program requirement. worth does not include: The individ-
Immediate family member means fa- ual’s ownership interest in an appli-
ther, mother, husband, wife, son, cant or participating DBE firm; or the
daughter, brother, sister, grandmother, individual’s equity in his or her pri-
grandfather, grandson, granddaughter, mary place of residence. An individ-
mother-in-law, or father-in-law. ual’s personal net worth includes only
Indian tribe means any Indian tribe, his or her own share of assets held
band, nation, or other organized group jointly or as community property with
or community of Indians, including the individual’s spouse.
any ANC, which is recognized as eligi- Primary industry classification means
ble for the special programs and serv- the North American Industrial Classi-
ices provided by the United States to fication System (NAICS) designation
Indians because of their status as Indi- which best describes the primary busi-
ans, or is recognized as such by the ness of a firm. The NAICS is described
State in which the tribe, band, nation, in the North American Industry Classi-
group, or community resides. See defi- fication Manual—United States, 1997
nition of ‘‘tribally-owned concern’’ in which is available from the National
this section. Technical Information Service, 5285
Joint venture means an association of Port Royal Road, Springfield, VA,
a DBE firm and one or more other 22161; by calling 1 (800) 553–6847; or via
firms to carry out a single, for-profit the Internet at: http://www.ntis.gov/
business enterprise, for which the par- product/naics.htm.
ties combine their property, capital, ef- Primary recipient means a recipient
forts, skills and knowledge, and in which receives DOT financial assist-
which the DBE is responsible for a dis- ance and passes some or all of it on to
tinct, clearly defined portion of the another recipient.
work of the contract and whose share Principal place of business means the
in the capital contribution, control, business location where the individuals
management, risks, and profits of the who manage the firm’s day-to-day op-
joint venture are commensurate with erations spend most working hours and
its ownership interest. where top management’s business
Native Hawaiian means any indi- records are kept. If the offices from
vidual whose ancestors were natives, which management is directed and
prior to 1778, of the area which now where business records are kept are in
comprises the State of Hawaii. different locations, the recipient will
Native Hawaiian Organization means determine the principal place of busi-
any community service organization ness for DBE program purposes.
serving Native Hawaiians in the State Program means any undertaking on a
of Hawaii which is a not-for-profit or- recipient’s part to use DOT financial
ganization chartered by the State of assistance, authorized by the laws to
Hawaii, is controlled by Native Hawai- which this part applies.
286
Race-conscious measure or program is Portuguese culture or origin, regard-

one that is focused specifically on as- less of race;
sisting only DBEs, including women- (iii) ‘‘Native Americans,’’ which in-
owned DBEs. cludes persons who are American Indi-
Race-neutral measure or program is ans, Eskimos, Aleuts, or Native Hawai-
one that is, or can be, used to assist all ians;
small businesses. For the purposes of (iv) ‘‘Asian-Pacific Americans,’’
this part, race-neutral includes gender- which includes persons whose origins
neutrality. are from Japan, China, Taiwan, Korea,
Recipient is any entity, public or pri- Burma (Myanmar), Vietnam, Laos,
vate, to which DOT financial assist- Cambodia (Kampuchea), Thailand, Ma-
ance is extended, whether directly or laysia, Indonesia, the Philippines,
through another recipient, through the Brunei, Samoa, Guam, the U.S. Trust
programs of the FAA, FHWA, or FTA, Territories of the Pacific Islands (Re-
or who has applied for such assistance. public of Palau), the Commonwealth of
Secretary means the Secretary of the Northern Marianas Islands, Macao,
Transportation or his/her designee. Fiji, Tonga, Kirbati, Juvalu, Nauru,
Federated States of Micronesia, or
Set-aside means a contracting prac-
Hong Kong;
tice restricting eligibility for the com-
(v) ‘‘Subcontinent Asian Americans,’’
petitive award of a contract solely to
which includes persons whose origins
DBE firms.
are from India, Pakistan, Bangladesh,
Small Business Administration or SBA Bhutan, the Maldives Islands, Nepal or
means the United States Small Busi- Sri Lanka;
ness Administration. (vi) Women;
SBA certified firm refers to firms that (vii) Any additional groups whose
have a current, valid certification from members are designated as socially and
or recognized by the SBA under the economically disadvantaged by the
8(a) BD or SDB programs. SBA, at such time as the SBA designa-
Small business concern means, with re- tion becomes effective.
spect to firms seeking to participate as Tribally-owned concern means any
DBEs in DOT-assisted contracts, a concern at least 51 percent owned by an
small business concern as defined pur- Indian tribe as defined in this section.
suant to section 3 of the Small Busi- You refers to a recipient, unless a
ness Act and Small Business Adminis- statement in the text of this part or
tration regulations implementing it (13 the context requires otherwise (i.e.,
CFR part 121) that also does not exceed ‘You must do XYZ’ means that recipi-
the cap on average annual gross re- ents must do XYZ).
ceipts specified in § 26.65(b).
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR
Socially and economically disadvan- 34570, June 28, 1999; 68 FR 35553, June 16, 2003]
taged individual means any individual
who is a citizen (or lawfully admitted § 26.7 What discriminatory actions are
permanent resident) of the United forbidden?
States and who is— (a) You must never exclude any per-
(1) Any individual who a recipient son from participation in, deny any
finds to be a socially and economically person the benefits of, or otherwise dis-
disadvantaged individual on a case-by- criminate against anyone in connec-
case basis. tion with the award and performance of
(2) Any individual in the following any contract covered by this part on
groups, members of which are the basis of race, color, sex, or national
rebuttably presumed to be socially and origin.
economically disadvantaged: (b) In administering your DBE pro-
(i) ‘‘Black Americans,’’ which in- gram, you must not, directly or
cludes persons having origins in any of through contractual or other arrange-
the Black racial groups of Africa; ments, use criteria or methods of ad-
(ii) ‘‘Hispanic Americans,’’ which in- ministration that have the effect of de-
cludes persons of Mexican, Puerto feating or substantially impairing ac-
Rican, Cuban, Dominican, Central or complishment of the objectives of the
South American, or other Spanish or program with respect to individuals of
287
a particular race, color, sex, or na- (v) The annual gross receipts of the
tional origin. firm. You may obtain this information
by asking each firm to indicate into
§ 26.9 How does the Department issue what gross receipts bracket they fit
guidance and interpretations under (e.g., less than $500,000; $500,000–$1 mil-
this part?
lion; $1–2 million; $2–5 million; etc.)
(a) Only guidance and interpretations rather than requesting an exact figure
(including interpretations set forth in from the firm.
certification appeal decisions) con- (3) You may acquire the information
sistent with this part 26 and issued for your bidders list in a variety of
after March 4, 1999 express the official ways. For example, you can collect the
positions and views of the Department data from all bidders, before or after
of Transportation or any of its oper- the bid due date. You can conduct a
ating administrations. survey that will result in statistically
(b) The Secretary of Transportation, sound estimate of the universe of DBE
Office of the Secretary of Transpor- and non-DBE contractors and sub-
tation, FHWA, FTA, and FAA may contractors who seek to work on your
issue written interpretations of or Federally-assisted contracts. You may
written guidance concerning this part. combine different data collection ap-
Written interpretations and guidance proaches (e.g., collect name and address
are valid, and express the official posi- information from all bidders, while
tions and views of the Department of conducting a survey with respect to
Transportation or any of its operating age and gross receipts information).
administrations, only if they are issued
over the signature of the Secretary of [64 FR 5126, Feb. 2, 1999, as amended at 65 FR
68951, Nov. 15, 2000]
Transportation or if they contain the
following statement: § 26.13 What assurances must recipi-
The General Counsel of the Department of ents and contractors make?
Transportation has reviewed this document (a) Each financial assistance agree-
and approved it as consistent with the lan-
guage and intent of 49 CFR part 26.
ment you sign with a DOT operating
administration (or a primary recipient)
[72 FR 15617, Apr. 2, 2007] must include the following assurance:
§ 26.11 What records do recipients The recipient shall not discriminate on the
keep and report? basis of race, color, national origin, or sex in
the award and performance of any DOT-as-
(a) [Reserved]
sisted contract or in the administration of
(b) You must continue to provide its DBE program or the requirements of 49
data about your DBE program to the CFR part 26. The recipient shall take all nec-
Department as directed by DOT oper- essary and reasonable steps under 49 CFR
ating administrations. part 26 to ensure nondiscrimination in the
(c) You must create and maintain a award and administration of DOT-assisted
bidders list. contracts. The recipient’s DBE program, as
(1) The purpose of this list is to pro- required by 49 CFR part 26 and as approved
vide you as accurate data as possible by DOT, is incorporated by reference in this
agreement. Implementation of this program
about the universe of DBE and non- is a legal obligation and failure to carry out
DBE contractors and subcontractors its terms shall be treated as a violation of
who seek to work on your Federally-as- this agreement. Upon notification to the re-
sisted contracts for use in helping you cipient of its failure to carry out its ap-
set your overall goals. proved program, the Department may im-
(2) You must obtain the following in- pose sanctions as provided for under part 26
formation about DBE and non-DBE and may, in appropriate cases, refer the mat-
contractors and subcontractors who ter for enforcement under 18 U.S.C. 1001 and/
or the Program Fraud Civil Remedies Act of
seek to work on your Federally-as- 1986 (31 U.S.C. 3801 et seq.).
sisted contracts:
(i) Firm name; (b) Each contract you sign with a
(ii) Firm address; contractor (and each subcontract the
(iii) Firm’s status as a DBE or non- prime contractor signs with a subcon-
DBE; tractor) must include the following as-
(iv) Age of the firm; and surance:
288
The contractor, sub recipient or subcon- ticipation process and the information
tractor shall not discriminate on the basis of gathered through it.
race, color, national origin, or sex in the per-
formance of this contract. The contractor
(2) Your application must show
shall carry out applicable requirements of 49 that—
CFR part 26 in the award and administration (i) There is a reasonable basis to con-
of DOT-assisted contracts. Failure by the clude that you could achieve a level of
contractor to carry out these requirements DBE participation consistent with the
is a material breach of this contract, which
objectives of this part using different
may result in the termination of this con-
tract or such other remedy as the recipient or innovative means other than those
deems appropriate. that are provided in subpart B or C of
this part;
§ 26.15 How can recipients apply for (ii) Conditions in your jurisdiction
exemptions or waivers? are appropriate for implementing the
(a) You can apply for an exemption proposal;
from any provision of this part. To (iii) Your proposal would prevent dis-
apply, you must request the exemption crimination against any individual or
in writing from the Office of the Sec- group in access to contracting opportu-
retary of Transportation, FHWA, FTA, nities or other benefits of the program;
or FAA. The Secretary will grant the and
request only if it documents special or (iv) Your proposal is consistent with
exceptional circumstances, not likely applicable law and program require-
to be generally applicable, and not con- ments of the concerned operating ad-
templated in connection with the rule- ministration’s financial assistance pro-
making that established this part, that gram.
make your compliance with a specific
(3) The Secretary has the authority
provision of this part impractical. You
to approve your application. If the Sec-
must agree to take any steps that the
Department specifies to comply with retary grants your application, you
the intent of the provision from which may administer your DBE program as
an exemption is granted. The Secretary provided in your proposal, subject to
will issue a written response to all ex- the following conditions:
emption requests. (i) DBE eligibility is determined as
(b) You can apply for a waiver of any provided in subparts D and E of this
provision of Subpart B or C of this part part, and DBE participation is counted
including, but not limited to, any pro- as provided in § 26.49;
visions regarding administrative re- (ii) Your level of DBE participation
quirements, overall goals, contract continues to be consistent with the ob-
goals or good faith efforts. Program jectives of this part;
waivers are for the purpose of author- (iii) There is a reasonable limitation
izing you to operate a DBE program on the duration of your modified pro-
that achieves the objectives of this gram; and
part by means that may differ from one (iv) Any other conditions the Sec-
or more of the requirements of Subpart retary makes on the grant of the waiv-
B or C of this part. To receive a pro- er.
gram waiver, you must follow these
(4) The Secretary may end a program
procedures:
waiver at any time and require you to
(1) You must apply through the con-
comply with this part’s provisions. The
cerned operating administration. The
Secretary may also extend the waiver,
application must include a specific pro-
gram proposal and address how you if he or she determines that all require-
will meet the criteria of paragraph ments of paragraphs (b)(2) and (3) of
(b)(2) of this section. Before submitting this section continue to be met. Any
your application, you must have had such extension shall be for no longer
public participation in developing your than period originally set for the dura-
proposal, including consultation with tion of the program.
the DBE community and at least one
public hearing. Your application must
include a summary of the public par-
289
Subpart B—Administrative Re- You must circulate the statement

quirements for DBE Programs throughout your organization and to
for Federally-Assisted Con- the DBE and non-DBE business com-
munities that perform work on your
tracting DOT-assisted contracts.
§ 26.21 Who must have a DBE pro-
gram? § 26.25 What is the requirement for a
liaison officer?
(a) If you are in one of these cat-
egories and let DOT-assisted contracts, You must have a DBE liaison officer,
you must have a DBE program meeting who shall have direct, independent ac-
the requirements of this part: cess to your Chief Executive Officer
(1) All FHWA recipients receiving concerning DBE program matters. The
funds authorized by a statute to which liaison officer shall be responsible for
this part applies; implementing all aspects of your DBE
(2) FTA recipients receiving plan- program. You must also have adequate
ning, capital and/or operating assist- staff to administer the program in
ance who will award prime contracts compliance with this part.
(excluding transit vehicle purchases)
exceeding $250,000 in FTA funds in a § 26.27 What efforts must recipients
make concerning DBE financial in-
Federal fiscal year; stitutions?
(3) FAA recipients receiving grants
for airport planning or development You must thoroughly investigate the
who will award prime contracts exceed- full extent of services offered by finan-
ing $250,000 in FAA funds in a Federal cial institutions owned and controlled
fiscal year. by socially and economically disadvan-
(b)(1) You must submit a DBE pro- taged individuals in your community
gram conforming to this part by Au- and make reasonable efforts to use
gust 31, 1999 to the concerned operating these institutions. You must also en-
administration (OA). Once the OA has courage prime contractors to use such
approved your program, the approval institutions.
counts for all of your DOT-assisted pro-
grams (except that goals are reviewed § 26.29 What prompt payment mecha-
by the particular operating administra- nisms must recipients have?
tion that provides funding for your (a) You must establish, as part of
DOT-assisted contracts). your DBE program, a contract clause
(2) You do not have to submit regular to require prime contractors to pay
updates of your DBE programs, as long subcontractors for satisfactory per-
as you remain in compliance. However, formance of their contracts no later
you must submit significant changes in than 30 days from receipt of each pay-
the program for approval. ment you make to the prime con-
(c) You are not eligible to receive tractor.
DOT financial assistance unless DOT (b) You must ensure prompt and full
has approved your DBE program and payment of retainage from the prime
you are in compliance with it and this contractor to the subcontractor within
part. You must continue to carry out 30 days after the subcontractor’s work
your program until all funds from DOT is satisfactorily completed. You must
financial assistance have been ex- use one of the following methods to
pended. comply with this requirement:
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR (1) You may decline to hold retainage
34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000] from prime contractors and prohibit
prime contractors from holding
§ 26.23 What is the requirement for a retainage from subcontractors.
policy statement? (2) You may decline to hold retainage
You must issue a signed and dated from prime contractors and require a
policy statement that expresses your contract clause obligating prime con-
commitment to your DBE program, tractors to make prompt and full pay-
states its objectives, and outlines re- ment of any retainage kept by prime
sponsibilities for its implementation. contractor to the subcontractor within
290
30 days after the subcontractor’s work other contractors are fully and prompt-
is satisfactorily completed. ly paid.
(3) You may hold retainage from [68 FR 35553, June 16, 2003]
prime contractors and provide for
prompt and regular incremental ac- § 26.31 What requirements pertain to
ceptances of portions of the prime con- the DBE directory?
tract, pay retainage to prime contrac- You must maintain and make avail-
tors based on these acceptances, and able to interested persons a directory
require a contract clause obligating identifying all firms eligible to partici-
the prime contractor to pay all pate as DBEs in your program. In the
retainage owed to the subcontractor listing for each firm, you must include
for satisfactory completion of the ac- its address, phone number, and the
cepted work within 30 days after your types of work the firm has been cer-
payment to the prime contractor. tified to perform as a DBE. You must
(c) For purposes of this section, a revise your directory at least annually
subcontractor’s work is satisfactorily and make updated information avail-
completed when all the tasks called for able to contractors and the public on
in the subcontract have been accom- request.
plished and documented as required by
the recipient. When a recipient has § 26.33 What steps must a recipient
made an incremental acceptance of a take to address overconcentration
of DBEs in certain types of work?
portion of a prime contract, the work
of a subcontractor covered by that ac- (a) If you determine that DBE firms
ceptance is deemed to be satisfactorily are so overconcentrated in a certain
completed. type of work as to unduly burden the
(d) Your DBE program must provide opportunity of non-DBE firms to par-
appropriate means to enforce the re- ticipate in this type of work, you must
quirements of this section. These devise appropriate measures to address
means may include appropriate pen- this overconcentration.
alties for failure to comply, the terms (b) These measures may include the
and conditions of which you set. Your use of incentives, technical assistance,
program may also provide that any business development programs, men-
delay or postponement of payment tor-protégé programs, and other appro-
among the parties may take place only priate measures designed to assist
for good cause, with your prior written DBEs in performing work outside of
approval. the specific field in which you have de-
termined that non-DBEs are unduly
(e) You may also establish, as part of
burdened. You may also consider vary-
your DBE program, any of the fol-
ing your use of contract goals, to the
lowing additional mechanisms to en-
extent consistent with § 26.51, to unsure
sure prompt payment:
that non-DBEs are not unfairly pre-
(1) A contract clause that requires vented from competing for sub-
prime contractors to include in their contracts.
subcontracts language providing that (c) You must obtain the approval of
prime contractors and subcontractors the concerned DOT operating adminis-
will use appropriate alternative dis- tration for your determination of over-
pute resolution mechanisms to resolve concentration and the measures you
payment disputes. You may specify the devise to address it. Once approved, the
nature of such mechanisms. measures become part of your DBE
(2) A contract clause providing that program.
the prime contractor will not be reim-
bursed for work performed by sub- § 26.35 What role do business develop-
contractors unless and until the prime ment and mentor-protégé programs
contractor ensures that the sub- have in the DBE program?
contractors are promptly paid for the (a) You may or, if an operating ad-
work they have performed. ministration directs you to, you must
(3) Other mechanisms, consistent establish a DBE business development
with this part and applicable state and program (BDP) to assist firms in gain-
local law, to ensure that DBEs and ing the ability to compete successfully
291
in the marketplace outside the DBE forth these mechanisms in your DBE
program. You may require a DBE firm, program.
as a condition of receiving assistance (b) Your DBE program must also in-
through the BDP, to agree to termi- clude a monitoring and enforcement
nate its participation in the DBE pro- mechanism to ensure that work com-
gram after a certain time has passed or mitted to DBEs at contract award is
certain objectives have been reached. actually performed by DBEs.
See Appendix C of this part for guid- (c) This mechanism must provide for
ance on administering BDP programs. a running tally of actual DBE attain-
(b) As part of a BDP or separately, ments (e.g., payments actually made to
you may establish a ‘‘mentor-protégé’’ DBE firms), including a means of com-
program, in which another DBE or non- paring these attainments to commit-
DBE firm is the principal source of ments. In your reports of DBE partici-
business development assistance to a pation to the Department, you must
DBE firm. display both commitments and attain-
(1) Only firms you have certified as ments.
DBEs before they are proposed for par- [64 FR 5126, Feb. 2, 1999, as amended at 65 FR
ticipation in a mentor-protégé program 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003]
are eligible to participate in the men-
tor-protégé program. Subpart C—Goals, Good Faith
(2) During the course of the mentor- Efforts, and Counting
protégé relationship, you must:
(i) Not award DBE credit to a non- § 26.41 What is the role of the statu-
DBE mentor firm for using its own tory 10 percent goal in this pro-
protégé firm for more than one half of gram?
its goal on any contract let by the re- (a) The statutes authorizing this pro-
cipient; and gram provide that, except to the extent
(ii) Not award DBE credit to a non- the Secretary determines otherwise,
DBE mentor firm for using its own not less than 10 percent of the author-
protégé firm for more than every other ized funds are to be expended with
contract performed by the protégé DBEs.
firm. (b) This 10 percent goal is an aspira-
(3) For purposes of making deter- tional goal at the national level, which
minations of business size under this the Department uses as a tool in evalu-
part, you must not treat protégé firms ating and monitoring DBEs’ opportuni-
as affiliates of mentor firms, when both ties to participate in DOT-assisted con-
firms are participating under an ap- tracts.
proved mentor-protégé program. See (c) The national 10 percent goal does
Appendix D of this part for guidance not authorize or require recipients to
concerning the operation of mentor- set overall or contract goals at the 10
protégé programs. percent level, or any other particular
(c) Your BDPs and mentor-protégé level, or to take any special adminis-
programs must be approved by the con- trative steps if their goals are above or
cerned operating administration before below 10 percent.
you implement them. Once approved,
they become part of your DBE pro- § 26.43 Can recipients use set-asides or
gram. quotas as part of this program?
(a) You are not permitted to use
§ 26.37 What are a recipient’s respon- quotas for DBEs on DOT-assisted con-
sibilities for monitoring the per- tracts subject to this part.
formance of other program partici- (b) You may not set-aside contracts
pants? for DBEs on DOT-assisted contracts
(a) You must implement appropriate subject to this part, except that, in
mechanisms to ensure compliance with limited and extreme circumstances,
the part’s requirements by all program you may use set-asides when no other
participants (e.g., applying legal and method could be reasonably expected
contract remedies available under Fed- to redress egregious instances of dis-
eral, state and local law). You must set crimination.
292
§ 26.45 How do recipients set overall ing and able businesses available in
goals? your market that perform work in the
(a)(1) Except as provided in para- same NAICS codes. (Information about
graph (a)(2) of this section, you must the CBP data base may be obtained
set an overall goal for DBE participa- from the Census Bureau at their web
tion in your DOT-assisted contracts. site, www.census.gov/epcd/cbp/view/
(2) If you are a FTA or FAA recipient cbpview.html.) Divide the number of
who reasonably anticipates awarding DBEs by the number of all businesses
(excluding transit vehicle purchases) to derive a base figure for the relative
$250,000 or less in FTA or FAA funds in availability of DBEs in your market.
prime contracts in a Federal fiscal (2) Use a bidders list. Determine the
year, you are not required to develop number of DBEs that have bid or
overall goals for FTA or FAA respec- quoted on your DOT-assisted prime
tively for that fiscal year. However, if contracts or subcontracts in the pre-
you have an existing DBE program, it vious year. Determine the number of
must remain in effect and you must all businesses that have bid or quoted
seek to fulfill the objectives outlined on prime or subcontracts in the same
in § 26.1. time period. Divide the number of DBE
(b) Your overall goal must be based bidders and quoters by the number for
on demonstrable evidence of the avail- all businesses to derive a base figure
ability of ready, willing and able DBEs for the relative availability of DBEs in
relative to all businesses ready, willing your market.
and able to participate on your DOT- (3) Use data from a disparity study. Use
assisted contracts (hereafter, the ‘‘rel- a percentage figure derived from data
ative availability of DBEs’’). The goal in a valid, applicable disparity study.
must reflect your determination of the
(4) Use the goal of another DOT recipi-
level of DBE participation you would
ent. If another DOT recipient in the
expect absent the effects of discrimina-
same, or substantially similar, market
tion. You cannot simply rely on either
has set an overall goal in compliance
the 10 percent national goal, your pre-
with this rule, you may use that goal
vious overall goal or past DBE partici-
as a base figure for your goal.
pation rates in your program without
reference to the relative availability of (5) Alternative methods. You may use
DBEs in your market. other methods to determine a base fig-
(c) Step 1. You must begin your goal ure for your overall goal. Any method-
setting process by determining a base ology you choose must be based on de-
figure for the relative availability of monstrable evidence of local market
DBEs. The following are examples of conditions and be designed to ulti-
approaches that you may take toward mately attain a goal that is rationally
determining a base figure. These exam- related to the relative availability of
ples are provided as a starting point for DBEs in your market.
your goal setting process. Any percent- (d) Step 2. Once you have calculated a
age figure derived from one of these ex- base figure, you must examine all of
amples should be considered a basis the evidence available in your jurisdic-
from which you begin when examining tion to determine what adjustment, if
all evidence available in your jurisdic- any, is needed to the base figure in
tion. These examples are not intended order to arrive at your overall goal.
as an exhaustive list. Other methods or (1) There are many types of evidence
combinations of methods to determine that must be considered when adjust-
a base figure may be used, subject to ing the base figure. These include:
approval by the concerned operating (i) The current capacity of DBEs to
administration. perform work in your DOT-assisted
(1) Use DBE Directories and Census Bu- contracting program, as measured by
reau Data. Determine the number of the volume of work DBEs have per-
ready, willing and able DBEs in your formed in recent years;
market from your DBE directory. (ii) Evidence from disparity studies
Using the Census Bureau’s County conducted anywhere within your juris-
Business Pattern (CBP) data base, de- diction, to the extent it is not already
termine the number of all ready, will- accounted for in your base figure; and
293
(iii) If your base figure is the goal of (2) If you are an FTA or FAA recipi-
another recipient, you must adjust it ent and set your overall goal on a
for differences in your local market project or grant basis, you must sub-
and your contracting program. mit the goal for review at a time deter-
(2) If available, you must consider mined by the FTA or FAA Adminis-
evidence from related fields that affect trator.
the opportunities for DBEs to form, (3) You must include with your over-
grow and compete. These include, but all goal submission a description of the
are not limited to: methodology you used to establish the
(i) Statistical disparities in the abil- goal, including your base figure and
ity of DBEs to get the financing, bond- the evidence with which it was cal-
ing and insurance required to partici- culated, and the adjustments you made
pate in your program; to the base figure and the evidence re-
(ii) Data on employment, self-em- lied on for the adjustments. You should
ployment, education, training and also include a summary listing of the
union apprenticeship programs, to the relevant available evidence in your ju-
extent you can relate it to the opportu- risdiction and, where applicable, an ex-
nities for DBEs to perform in your pro- planation of why you did not use that
gram. evidence to adjust your base figure.
(3) If you attempt to make an adjust- You must also include your projection
ment to your base figure to account for of the portions of the overall goal you
the continuing effects of past discrimi- expect to meet through race-neutral
nation (often called the ‘‘but for’’ fac- and race-conscious measures, respec-
tor) or the effects of an ongoing DBE tively (see § 26.51(c)).
program, the adjustment must be based (4) You are not required to obtain
on demonstrable evidence that is logi- prior operating administration concur-
cally and directly related to the effect rence with the your overall goal. How-
for which the adjustment is sought. ever, if the operating administration’s
(e) Once you have determined a per- review suggests that your overall goal
centage figure in accordance with para- has not been correctly calculated, or
graphs (c) and (d) of this section, you that your method for calculating goals
should express your overall goal as fol- is inadequate, the operating adminis-
lows: tration may, after consulting with you,
(1) If you are an FHWA recipient, as adjust your overall goal or require that
a percentage of all Federal-aid highway you do so. The adjusted overall goal is
funds you will expend in FHWA-as- binding on you.
sisted contracts in the forthcoming fis-
(5) If you need additional time to col-
cal year;
lect data or take other steps to develop
(2) If you are an FTA or FAA recipi- an approach to setting overall goals,
ent, as a percentage of all FTA or FAA
you may request the approval of the
funds (exclusive of FTA funds to be
concerned operating administration for
used for the purchase of transit vehi-
an interim goal and/or goal-setting
cles) that you will expend in FTA or
mechanism. Such a mechanism must:
FAA-assisted contracts in the forth-
coming fiscal year. In appropriate (i) Reflect the relative availability of
cases, the FTA or FAA Administrator DBEs in your local market to the max-
may permit you to express your overall imum extent feasible given the data
goal as a percentage of funds for a par- available to you; and
ticular grant or project or group of (ii) Avoid imposing undue burdens on
grants and/or projects. non-DBEs.
(f)(1) If you set overall goals on a fis- (g) In establishing an overall goal,
cal year basis, you must submit them you must provide for public participa-
to the applicable DOT operating ad- tion. This public participation must in-
ministration for review on August 1 of clude:
each year, unless the Administrator of (1) Consultation with minority, wom-
the concerned operating administra- en’s and general contractor groups,
tion establishes a different submission community organizations, and other
date. officials or organizations which could
294
be expected to have information con- amount from which your overall goal is
cerning the availability of disadvan- calculated.
taged and non-disadvantaged busi- (b) If you are a transit vehicle manu-
nesses, the effects of discrimination on facturer, you must establish and sub-
opportunities for DBEs, and your ef- mit for FTA’s approval an annual over-
forts to establish a level playing field all percentage goal. In setting your
for the participation of DBEs. overall goal, you should be guided, to
(2) A published notice announcing the extent applicable, by the principles
your proposed overall goal, informing underlying § 26.45. The base from which
the public that the proposed goal and you calculate this goal is the amount
its rationale are available for inspec- of FTA financial assistance included in
tion during normal business hours at transit vehicle contracts you will per-
your principal office for 30 days fol- form during the fiscal year in question.
lowing the date of the notice, and in- You must exclude from this base funds
forming the public that you and the attributable to work performed outside
Department will accept comments on the United States and its territories,
the goals for 45 days from the date of possessions, and commonwealths. The
the notice. The notice must include ad- requirements and procedures of this
dresses to which comments may be part with respect to submission and ap-
sent, and you must publish it in gen- proval of overall goals apply to you as
eral circulation media and available they do to recipients.
minority-focused media and trade asso- (c) As a transit vehicle manufacturer,
ciation publications. you may make the certification re-
(h) Your overall goals must provide quired by this section if you have sub-
for participation by all certified DBEs mitted the goal this section requires
and must not be subdivided into group- and FTA has approved it or not dis-
specific goals. approved it.
(d) As a recipient, you may, with
34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000; FTA approval, establish project-spe-
68 FR 35553, June 16, 2003] cific goals for DBE participation in the
procurement of transit vehicles in lieu
§ 26.47 Can recipients be penalized for of complying through the procedures of
failing to meet overall goals? this section.
(a) You cannot be penalized, or treat- (e) If you are an FHWA or FAA re-
ed by the Department as being in non- cipient, you may, with FHWA or FAA
compliance with this rule, because approval, use the procedures of this
your DBE participation falls short of section with respect to procurements
your overall goal, unless you have of vehicles or specialized equipment. If
failed to administer your program in you choose to do so, then the manufac-
good faith. turers of this equipment must meet the
(b) If you do not have an approved same requirements (including goal ap-
DBE program or overall goal, or if you proval by FHWA or FAA) as transit ve-
fail to implement your program in hicle manufacturers must meet in
good faith, you are in noncompliance FTA-assisted procurements.
with this part.
§ 26.51 What means do recipients use
§ 26.49 How are overall goals estab- to meet overall goals?
lished for transit vehicle manufac- (a) You must meet the maximum fea-
turers? sible portion of your overall goal by
(a) If you are an FTA recipient, you using race-neutral means of facili-
must require in your DBE program tating DBE participation. Race-neutral
that each transit vehicle manufac- DBE participation includes any time a
turer, as a condition of being author- DBE wins a prime contract through
ized to bid or propose on FTA-assisted customary competitive procurement
transit vehicle procurements, certify procedures, is awarded a subcontract
that it has complied with the require- on a prime contract that does not
ments of this section. You do not in- carry a DBE goal, or even if there is a
clude FTA assistance used in transit DBE goal, wins a subcontract from a
vehicle procurements in the base prime contractor that did not consider
295
its DBE status in making the award means, to the widest feasible universe
(e.g., a prime contractor that uses a of potential prime contractors; and
strict low bid system to award sub- (9) Assisting DBEs, and other small
contracts). businesses, to develop their capability
(b) Race-neutral means include, but to utilize emerging technology and
are not limited to, the following: conduct business through electronic
(1) Arranging solicitations, times for media.
the presentation of bids, quantities, (c) Each time you submit your over-
specifications, and delivery schedules all goal for review by the concerned op-
in ways that facilitate DBE, and other erating administration, you must also
small businesses, participation (e.g., submit your projection of the portion
unbundling large contracts to make of the goal that you expect to meet
them more accessible to small busi- through race-neutral means and your
nesses, requiring or encouraging prime basis for that projection. This projec-
contractors to subcontract portions of tion is subject to approval by the con-
work that they might otherwise per- cerned operating administration, in
form with their own forces); conjunction with its review of your
(2) Providing assistance in over- overall goal.
coming limitations such as inability to (d) You must establish contract goals
obtain bonding or financing (e.g., by to meet any portion of your overall
such means as simplifying the bonding
goal you do not project being able to
process, reducing bonding require-
meet using race-neutral means.
ments, eliminating the impact of sur-
(e) The following provisions apply to
ety costs from bids, and providing serv-
the use of contract goals:
ices to help DBEs, and other small
businesses, obtain bonding and financ- (1) You may use contract goals only
ing); on those DOT-assisted contracts that
(3) Providing technical assistance have subcontracting possibilities.
and other services; (2) You are not required to set a con-
(4) Carrying out information and tract goal on every DOT-assisted con-
communications programs on contract. You are not required to set each
tracting procedures and specific con- contract goal at the same percentage
tract opportunities (e.g., ensuring the level as the overall goal. The goal for a
inclusion of DBEs, and other small specific contract may be higher or
businesses, on recipient mailing lists lower than that percentage level of the
for bidders; ensuring the dissemination overall goal, depending on such factors
to bidders on prime contracts of lists of as the type of work involved, the loca-
potential subcontractors; provision of tion of the work, and the availability
information in languages other than of DBEs for the work of the particular
English, where appropriate); contract. However, over the period cov-
(5) Implementing a supportive serv- ered by your overall goal, you must set
ices program to develop and improve contract goals so that they will cumu-
immediate and long-term business latively result in meeting any portion
management, record keeping, and fi- of your overall goal you do not project
nancial and accounting capability for being able to meet through the use of
DBEs and other small businesses; race-neutral means.
(6) Providing services to help DBEs, (3) Operating administration ap-
and other small businesses, improve proval of each contract goal is not nec-
long-term development, increase op- essarily required. However, operating
portunities to participate in a variety administrations may review and ap-
of kinds of work, handle increasingly prove or disapprove any contract goal
significant projects, and achieve even- you establish.
tual self-sufficiency; (4) Your contract goals must provide
(7) Establishing a program to assist for participation by all certified DBEs
new, start-up firms, particularly in and must not be subdivided into group-
fields in which DBE participation has specific goals.
historically been low; (f) To ensure that your DBE program
(8) Ensuring distribution of your DBE continues to be narrowly tailored to
directory, through print and electronic overcome the effects of discrimination,
296
you must adjust your use of contract do not meet your overall goal for a
goals as follows: year.
(1) If your approved projection under
Example to Paragraph (f)(3): Your overall
paragraph (c) of this section estimates
goal for Years I and Year II is 10 percent. The
that you can meet your entire overall
DBE participation you obtain through race-
goal for a given year through race-neu- neutral measures alone is 10 percent or more
tral means, you must implement your in each year. (For this purpose, it does not
program without setting contract goals matter whether you obtained additional DBE
during that year. participation through using contract goals
Example to Paragraph (f)(1): Your overall in these years.) In Year III and following
goal for Year I is 12 percent. You estimate years, you do not need to make a projection
that you can obtain 12 percent or more DBE under paragraph (c) of this section of the
participation through the use of race-neutral portion of your overall goal you expect to
measures, without any use of contract goals. meet using race-neutral means. You simply
In this case, you do not set any contract use race-neutral means to achieve your over-
goals for the contracts that will be per- all goals. However, if in Year VI your DBE
formed in Year I. participation falls short of your overall goal,
then you must make a paragraph (c) projec-
(2) If, during the course of any year
tion for Year VII and, if necessary, resume
in which you are using contract goals, use of contract goals in that year.
you determine that you will exceed
your overall goal, you must reduce or (4) If you obtain DBE participation
eliminate the use of contract goals to that exceeds your overall goal in two
the extent necessary to ensure that the consecutive years through the use of
use of contract goals does not result in contract goals (i.e., not through the
exceeding the overall goal. If you de- use of race-neutral means alone), you
termine that you will fall short of your must reduce your use of contract goals
overall goal, then you must make ap- proportionately in the following year.
propriate modifications in your use of
race-neutral and/or race-conscious Example to Paragraph (f)(4): In Years I and
measures to allow you to meet the II, your overall goal is 12 percent, and you
obtain 14 and 16 percent DBE participation,
overall goal.
respectively. You have exceeded your goals
Example to Paragraph (f)(2): In Year II, your over the two-year period by an average of 25
overall goal is 12 percent. You have esti- percent. In Year III, your overall goal is
mated that you can obtain 5 percent DBE again 12 percent, and your paragraph (c) pro-
participation through use of race-neutral jection estimates that you will obtain 4 per-
measures. You therefore plan to obtain the cent DBE participation through race-neutral
remaining 7 percent participation through means and 8 percent through contract goals.
use of DBE goals. By September, you have You then reduce the contract goal projection
already obtained 11 percent DBE participa- by 25 percent (i.e., from 8 to 6 percent) and
tion for the year. For contracts let during
set contract goals accordingly during the
the remainder of the year, you use contract
year. If in Year III you obtain 11 percent par-
goals only to the extent necessary to obtain
ticipation, you do not use this contract goal
an additional one percent DBE participation.
However, if you determine in September that adjustment mechanism for Year IV, because
your participation for the year is likely to be there have not been two consecutive years of
only 8 percent total, then you would increase exceeding overall goals.
your use of race-neutral and/or race-con- (g) In any year in which you project
scious means during the remainder of the
year in order to achieve your overall goal. meeting part of your goal through
race-neutral means and the remainder
(3) If the DBE participation you have through contract goals, you must
obtained by race-neutral means alone maintain data separately on DBE
meets or exceeds your overall goals for achievements in those contracts with
two consecutive years, you are not re-
and without contract goals, respec-
quired to make a projection of the
tively. You must report this data to
amount of your goal you can meet
the concerned operating administra-
using such means in the next year. You
do not set contract goals on any con- tion as provided in § 26.11.
tracts in the next year. You continue
using only race-neutral means to meet
your overall goals unless and until you
297
§ 26.53 What are the good faith efforts quired by paragraph (b)(2) of this sec-
procedures recipients follow in situ- tion—
ations where there are contract (i) Under sealed bid procedures, as a
goals? matter of responsiveness, or with ini-
(a) When you have established a DBE tial proposals, under contract negotia-
contract goal, you must award the con- tion procedures; or
tract only to a bidder/offeror who (ii) At any time before you commit
makes good faith efforts to meet it. yourself to the performance of the con-
You must determine that a bidder/of- tract by the bidder/offeror, as a matter
feror has made good faith efforts if the of responsibility.
bidder/offeror does either of the fol- (c) You must make sure all informa-
lowing things: tion is complete and accurate and ade-
(1) Documents that it has obtained quately documents the bidder/offeror’s
enough DBE participation to meet the good faith efforts before committing
goal; or yourself to the performance of the con-
(2) Documents that it made adequate tract by the bidder/offeror.
good faith efforts to meet the goal, (d) If you determine that the appar-
even though it did not succeed in ob- ent successful bidder/offeror has failed
taining enough DBE participation to to meet the requirements of paragraph
do so. If the bidder/offeror does docu- (a) of this section, you must, before
ment adequate good faith efforts, you awarding the contract, provide the bid-
must not deny award of the contract on der/offeror an opportunity for adminis-
the basis that the bidder/offeror failed trative reconsideration.
to meet the goal. See Appendix A of (1) As part of this reconsideration,
this part for guidance in determining the bidder/offeror must have the oppor-
the adequacy of a bidder/offeror’s good tunity to provide written documenta-
faith efforts. tion or argument concerning the issue
(b) In your solicitations for DOT-as- of whether it met the goal or made ade-
sisted contracts for which a contract quate good faith efforts to do so.
goal has been established, you must re- (2) Your decision on reconsideration
quire the following: must be made by an official who did
(1) Award of the contract will be con- not take part in the original deter-
ditioned on meeting the requirements mination that the bidder/offeror failed
of this section; to meet the goal or make adequate
(2) All bidders/offerors will be re- good faith efforts to do so.
quired to submit the following infor- (3) The bidder/offeror must have the
mation to the recipient, at the time opportunity to meet in person with
provided in paragraph (b)(3) of this sec- your reconsideration official to discuss
tion: the issue of whether it met the goal or
(i) The names and addresses of DBE made adequate good faith efforts to do
firms that will participate in the con- so.
tract; (4) You must send the bidder/offeror a
(ii) A description of the work that written decision on reconsideration,
each DBE will perform; explaining the basis for finding that
(iii) The dollar amount of the partici- the bidder did or did not meet the goal
pation of each DBE firm participating; or make adequate good faith efforts to
(iv) Written documentation of the do so.
bidder/offeror’s commitment to use a (5) The result of the reconsideration
DBE subcontractor whose participation process is not administratively appeal-
it submits to meet a contract goal; able to the Department of Transpor-
(v) Written confirmation from the tation.
DBE that it is participating in the con- (e) In a ‘‘design-build’’ or ‘‘turnkey’’
tract as provided in the prime contrac- contracting situation, in which the re-
tor’s commitment; and cipient lets a master contract to a con-
(vi) If the contract goal is not met, tractor, who in turn lets subsequent
evidence of good faith efforts (see Ap- subcontracts for the work of the
pendix A of this part); and project, a recipient may establish a
(3) At your discretion, the bidder/of- goal for the project. The master con-
feror must present the information re- tractor then establishes contract goals,
298
as appropriate, for the subcontracts it the contract, including supplies pur-

lets. Recipients must maintain over- chased or equipment leased by the DBE
sight of the master contractor’s activi- (except supplies and equipment the
ties to ensure that they are conducted DBE subcontractor purchases or leases
consistent with the requirements of from the prime contractor or its affil-
this part. iate).
(f)(1) You must require that a prime (2) Count the entire amount of fees or
contractor not terminate for conven- commissions charged by a DBE firm for
ience a DBE subcontractor listed in re- providing a bona fide service, such as
sponse to paragraph (b)(2) of this sec- professional, technical, consultant, or
tion (or an approved substitute DBE managerial services, or for providing
firm) and then perform the work of the bonds or insurance specifically re-
terminated subcontract with its own quired for the performance of a DOT-
forces or those of an affiliate, without assisted contract, toward DBE goals,
your prior written consent. provided you determine the fee to be
(2) When a DBE subcontractor is ter- reasonable and not excessive as com-
minated, or fails to complete its work pared with fees customarily allowed for
on the contract for any reason, you similar services.
must require the prime contractor to (3) When a DBE subcontracts part of
make good faith efforts to find another the work of its contract to another
DBE subcontractor to substitute for firm, the value of the subcontracted
the original DBE. These good faith ef- work may be counted toward DBE
forts shall be directed at finding an- goals only if the DBE’s subcontractor
other DBE to perform at least the same is itself a DBE. Work that a DBE sub-
amount of work under the contract as contracts to a non-DBE firm does not
the DBE that was terminated, to the count toward DBE goals.
extent needed to meet the contract
(b) When a DBE performs as a partic-
goal you established for the procure-
ipant in a joint venture, count a por-
ment.
tion of the total dollar value of the
(3) You must include in each prime
contract equal to the distinct, clearly
contract a provision for appropriate ad-
defined portion of the work of the con-
ministrative remedies that you will in-
voke if the prime contractor fails to tract that the DBE performs with its
comply with the requirements of this own forces toward DBE goals.
section. (c) Count expenditures to a DBE con-
(g) You must apply the requirements tractor toward DBE goals only if the
of this section to DBE bidders/offerors DBE is performing a commercially use-
for prime contracts. In determining ful function on that contract.
whether a DBE bidder/offeror for a (1) A DBE performs a commercially
prime contract has met a contract useful function when it is responsible
goal, you count the work the DBE has for execution of the work of the con-
committed to performing with its own tract and is carrying out its respon-
forces as well as the work that it has sibilities by actually performing, man-
committed to be performed by DBE aging, and supervising the work in-
subcontractors and DBE suppliers. volved. To perform a commercially
useful function, the DBE must also be
§ 26.55 How is DBE participation responsible, with respect to materials
counted toward goals? and supplies used on the contract, for
(a) When a DBE participates in a con- negotiating price, determining quality
tract, you count only the value of the and quantity, ordering the material,
work actually performed by the DBE and installing (where applicable) and
toward DBE goals. paying for the material itself. To de-
(1) Count the entire amount of that termine whether a DBE is performing a
portion of a construction contract (or commercially useful function, you
other contract not covered by para- must evaluate the amount of work sub-
graph (a)(2) of this section) that is per- contracted, industry practices, whether
formed by the DBE’s own forces. In- the amount the firm is to be paid under
clude the cost of supplies and materials the contract is commensurate with the
obtained by the DBE for the work of work it is actually performing and the
299
DBE credit claimed for its performance (4) The DBE may lease trucks from
of the work, and other relevant factors. another DBE firm, including an owner-
(2) A DBE does not perform a com- operator who is certified as a DBE. The
mercially useful function if its role is DBE who leases trucks from another
limited to that of an extra participant DBE receives credit for the total value
in a transaction, contract, or project of the transportation services the les-
through which funds are passed in see DBE provides on the contract.
order to obtain the appearance of DBE (5) The DBE may also lease trucks
participation. In determining whether from a non-DBE firm, including from
a DBE is such an extra participant, you an owner-operator. The DBE who
must examine similar transactions, leases trucks from a non-DBE is enti-
particularly those in which DBEs do tled to credit for the total value of
not participate. transportation services provided by
(3) If a DBE does not perform or exer- non-DBE lessees not to exceed the
cise responsibility for at least 30 per- value of transportation services pro-
cent of the total cost of its contract vided by DBE-owned trucks on the con-
with its own work force, or the DBE tract. Additional participation by non-
subcontracts a greater portion of the DBE lessees receives credit only for the
work of a contract than would be ex- fee or commission it receives as a re-
pected on the basis of normal industry sult of the lease arrangement. If a re-
practice for the type of work involved, cipient chooses this approach, it must
you must presume that it is not per- obtain written consent from the appro-
forming a commercially useful func- priate Department Operating Adminis-
tion. tration.
(4) When a DBE is presumed not to be
performing a commercially useful func- Example to this paragraph (d)(5): DBE Firm
tion as provided in paragraph (c)(3) of X uses two of its own trucks on a contract.
It leases two trucks from DBE Firm Y and
this section, the DBE may present evi-
six trucks from non-DBE Firm Z. DBE credit
dence to rebut this presumption. You would be awarded for the total value of
may determine that the firm is per- transportation services provided by Firm X
forming a commercially useful func- and Firm Y, and may also be awarded for the
tion given the type of work involved total value of transportation services pro-
and normal industry practices. vided by four of the six trucks provided by
(5) Your decisions on commercially Firm Z. In all, full credit would be allowed
useful function matters are subject to for the participation of eight trucks. With
review by the concerned operating ad- respect to the other two trucks provided by
Firm Z, DBE credit could be awarded only
ministration, but are not administra-
for the fees or commissions pertaining to
tively appealable to DOT. those trucks Firm X receives as a result of
(d) Use the following factors in deter- the lease with Firm Z.
mining whether a DBE trucking com-
pany is performing a commercially (6) For purposes of this paragraph (d),
useful function: a lease must indicate that the DBE has
(1) The DBE must be responsible for exclusive use of and control over the
the management and supervision of the truck. This does not preclude the
entire trucking operation for which it leased truck from working for others
is responsible on a particular contract, during the term of the lease with the
and there cannot be a contrived ar- consent of the DBE, so long as the
rangement for the purpose of meeting lease gives the DBE absolute priority
DBE goals. for use of the leased truck. Leased
(2) The DBE must itself own and op- trucks must display the name and
erate at least one fully licensed, in- identification number of the DBE.
sured, and operational truck used on (e) Count expenditures with DBEs for
the contract. materials or supplies toward DBE goals
(3) The DBE receives credit for the as provided in the following:
total value of the transportation serv- (1)(i) If the materials or supplies are
ices it provides on the contract using obtained from a DBE manufacturer,
trucks it owns, insures, and operates count 100 percent of the cost of the ma-
using drivers it employs. terials or supplies toward DBE goals.
300
(ii) For purposes of this paragraph lowed for similar services. Do not
(e)(1), a manufacturer is a firm that op- count any portion of the cost of the
erates or maintains a factory or estab- materials and supplies themselves to-
lishment that produces, on the prem- ward DBE goals, however.
ises, the materials, supplies, articles, (f) If a firm is not currently certified
or equipment required under the con- as a DBE in accordance with the stand-
tract and of the general character de- ards of subpart D of this part at the
scribed by the specifications. time of the execution of the contract,
(2)(i) If the materials or supplies are do not count the firm’s participation
purchased from a DBE regular dealer, toward any DBE goals, except as pro-
count 60 percent of the cost of the ma- vided for in § 26.87(i)).
terials or supplies toward DBE goals. (g) Do not count the dollar value of
(ii) For purposes of this section, a work performed under a contract with
regular dealer is a firm that owns, op- a firm after it has ceased to be cer-
erates, or maintains a store, ware- tified toward your overall goal.
house, or other establishment in which (h) Do not count the participation of
the materials, supplies, articles or a DBE subcontractor toward a contrac-
equipment of the general character de- tor’s final compliance with its DBE ob-
scribed by the specifications and re- ligations on a contract until the
quired under the contract are bought, amount being counted has actually
kept in stock, and regularly sold or been paid to the DBE.
leased to the public in the usual course [64 FR 5126, Feb. 2, 1999, as amended at 65 FR
of business. 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003]
(A) To be a regular dealer, the firm
must be an established, regular busi- Subpart D—Certification Standards
ness that engages, as its principal busi-
ness and under its own name, in the § 26.61 How are burdens of proof allo-
purchase and sale or lease of the prod- cated in the certification process?
ucts in question. (a) In determining whether to certify
(B) A person may be a regular dealer a firm as eligible to participate as a
in such bulk items as petroleum prod- DBE, you must apply the standards of
ucts, steel, cement, gravel, stone, or this subpart.
asphalt without owning, operating, or (b) The firm seeking certification has
maintaining a place of business as pro- the burden of demonstrating to you, by
vided in this paragraph (e)(2)(ii) if the a preponderance of the evidence, that
person both owns and operates dis- it meets the requirements of this sub-
tribution equipment for the products. part concerning group membership or
Any supplementing of regular dealers’ individual disadvantage, business size,
own distribution equipment shall be by ownership, and control.
a long-term lease agreement and not (c) You must rebuttably presume
on an ad hoc or contract-by-contract that members of the designated groups
basis. identified in § 26.67(a) are socially and
(C) Packagers, brokers, manufactur- economically disadvantaged. This
ers’ representatives, or other persons means they do not have the burden of
who arrange or expedite transactions proving to you that they are socially
are not regular dealers within the and economically disadvantaged. In
meaning of this paragraph (e)(2). order to obtain the benefit of the re-
(3) With respect to materials or sup- buttable presumption, individuals must
plies purchased from a DBE which is submit a signed, notarized statement
neither a manufacturer nor a regular that they are a member of one of the
dealer, count the entire amount of fees groups in § 26.67(a). Applicants do have
or commissions charged for assistance the obligation to provide you informa-
in the procurement of the materials tion concerning their economic dis-
and supplies, or fees or transportation advantage (see § 26.67).
charges for the delivery of materials or (d) Individuals who are not presumed
supplies required on a job site, toward to be socially and economically dis-
DBE goals, provided you determine the advantaged, and individuals concerning
fees to be reasonable and not excessive whom the presumption of disadvantage
as compared with fees customarily al- has been rebutted, have the burden of
301
proving to you, by a preponderance of (2) Your decisions concerning mem-

the evidence, that they are socially and bership in a designated group are sub-
economically disadvantaged. (See Ap- ject to the certification appeals proce-
pendix E of this part.) dure of § 26.89.
(e) You must make determinations
concerning whether individuals and [64 FR 5126, Feb. 2, 1999, as amended at 68 FR
firms have met their burden of dem- 35554, June 16, 2003]
onstrating group membership, owner-
ship, control, and social and economic § 26.65 What rules govern business size
determinations?
disadvantage (where disadvantage
must be demonstrated on an individual (a) To be an eligible DBE, a firm (in-
basis) by considering all the facts in cluding its affiliates) must be an exist-
the record, viewed as a whole. ing small business, as defined by Small
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR Business Administration (SBA) stand-
35554, June 16, 2003] ards. As a recipient, you must apply
current SBA business size standard(s)
§ 26.63 What rules govern group mem- found in 13 CFR part 121 appropriate to
bership determinations? the type(s) of work the firm seeks to
(a)(1) If, after reviewing the signed perform in DOT-assisted contracts.
notarized statement of membership in (b) Even if it meets the requirements
a presumptively disadvantaged group of paragraph (a) of this section, a firm
(see § 26.61(c)), you have a well founded is not an eligible DBE in any Federal
reason to question the individual’s fiscal year if the firm (including its af-
claim of membership in that group, filiates) has had average annual gross
you must require the individual to receipts, as defined by SBA regulations
present additional evidence that he or
(see 13 CFR 121.402), over the firm’s pre-
she is a member of the group.
vious three fiscal years, in excess of
(2) You must provide the individual a
written explanation of your reasons for $20.41 million.
questioning his or her group member- (c) The Department adjusts the num-
ship and a written request for addi- ber in paragraph (b) of this section
tional evidence as outlined in para- using the Department of Commerce
graph (b) of this section. price deflators for purchases by State
(3) In implementing this section, you and local governments as the basis for
must take special care to ensure that this adjustment. The Department
you do not impose a disproportionate issues a final rule by August 10 of each
burden on members of any particular year making this adjustment.
designated group. Imposing a dis-
[72 FR 15617, Apr. 2, 2007]
proportionate burden on members of a
particular group could violate § 26.7(b) § 26.67 What rules determine social
and/or Title VI of the Civil Rights Act and economic disadvantage?
of 1964 and 49 CFR part 21.
(b) In making such a determination, (a) Presumption of disadvantage. (1)
you must consider whether the person You must rebuttably presume that
has held himself out to be a member of citizens of the United States (or law-
the group over a long period of time fully admitted permanent residents)
prior to application for certification who are women, Black Americans, His-
and whether the person is regarded as a panic Americans, Native Americans,
member of the group by the relevant Asian-Pacific Americans, Subcontinent
community. You may require the ap- Asian Americans, or other minorities
plicant to produce appropriate docu- found to be disadvantaged by the SBA,
mentation of group membership. are socially and economically dis-
(1) If you determine that an indi- advantaged individuals. You must re-
vidual claiming to be a member of a quire applicants to submit a signed, no-
group presumed to be disadvantaged is tarized certification that each pre-
not a member of a designated disadvan- sumptively disadvantaged owner is, in
taged group, the individual must dem- fact, socially and economically dis-
onstrate social and economic disadvan-
advantaged.
tage on an individual basis.
302
(2) (i) You must require each indi- disadvantage is rebutted. You are not
vidual owner of a firm applying to par- required to have a proceeding under
ticipate as a DBE (except a firm apply- paragraph (b)(2) of this section in order
ing to participate as a DBE airport to rebut the presumption of economic
concessionaire) whose ownership and disadvantage in this case.
control are relied upon for DBE certifi- (2) If you have a reasonable basis to
cation to certify that he or she has a believe that an individual who is a
personal net worth that does not ex- member of one of the designated groups
ceed $750,000. is not, in fact, socially and/or economi-
(ii) You must require each individual cally disadvantaged you may, at any
who makes this certification to sup- time, start a proceeding to determine
port it with a signed, notarized state- whether the presumption should be re-
ment of personal net worth, with ap- garded as rebutted with respect to that
propriate supporting documentation. individual. Your proceeding must fol-
This statement and documentation low the procedures of § 26.87.
must not be unduly lengthy, burden- (3) In such a proceeding, you have the
some, or intrusive. burden of demonstrating, by a prepon-
(iii) In determining an individual’s derance of the evidence, that the indi-
net worth, you must observe the fol- vidual is not socially and economically
lowing requirements: disadvantaged. You may require the in-
(A) Exclude an individual’s ownership dividual to produce information rel-
interest in the applicant firm; evant to the determination of his or
(B) Exclude the individual’s equity in her disadvantage.
his or her primary residence (except (4) When an individual’s presumption
any portion of such equity that is at- of social and/or economic disadvantage
tributable to excessive withdrawals has been rebutted, his or her ownership
from the applicant firm). and control of the firm in question can-
(C) Do not use a contingent liability not be used for purposes of DBE eligi-
to reduce an individual’s net worth. bility under this subpart unless and
(D) With respect to assets held in until he or she makes an individual
vested pension plans, Individual Retire- showing of social and/or economic dis-
ment Accounts, 401(k) accounts, or advantage. If the basis for rebutting
other retirement savings or investment the presumption is a determination
programs in which the assets cannot be that the individual’s personal net
distributed to the individual at the worth exceeds $750,000, the individual is
present time without significant ad- no longer eligible for participation in
verse tax or interest consequences, in- the program and cannot regain eligi-
clude only the present value of such as- bility by making an individual showing
sets, less the tax and interest penalties of disadvantage.
that would accrue if the asset were dis- (c) [Reserved]
tributed at the present time. (d) Individual determinations of social
(iv) Notwithstanding any provision of and economic disadvantage. Firms
Federal or state law, you must not re- owned and controlled by individuals
lease an individual’s personal net who are not presumed to be socially
worth statement nor any documenta- and economically disadvantaged (in-
tion supporting it to any third party cluding individuals whose presumed
without the written consent of the sub- disadvantage has been rebutted) may
mitter. Provided, that you must trans- apply for DBE certification. You must
mit this information to DOT in any make a case-by-case determination of
certification appeal proceeding under whether each individual whose owner-
§ 26.89 in which the disadvantaged sta- ship and control are relied upon for
tus of the individual is in question. DBE certification is socially and eco-
(b) Rebuttal of presumption of dis- nomically disadvantaged. In such a
advantage. (1) If the statement of per- proceeding, the applicant firm has the
sonal net worth that an individual sub- burden of demonstrating to you, by a
mits under paragraph (a)(2) of this sec- preponderance of the evidence, that the
tion shows that the individual’s per- individuals who own and control it are
sonal net worth exceeds $750,000, the in- socially and economically disadvan-
dividual’s presumption of economic taged. An individual whose personal
303
net worth exceeds $750,000 shall not be in trust are regarded as held by a dis-
deemed to be economically disadvan- advantaged individual for purposes of
taged. In making these determinations, determining ownership of the firm, if—
use the guidance found in Appendix E (1) The beneficial owner of securities
of this part. You must require that ap- or assets held in trust is a disadvan-
plicants provide sufficient information taged individual, and the trustee is the
to permit determinations under the same or another such individual; or
guidance of Appendix E of this part. (2) The beneficial owner of a trust is
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR a disadvantaged individual who, rather
34570, June 28, 1999; 68 FR 35554, June 16, 2003] than the trustee, exercises effective
control over the management, policy-
§ 26.69 What rules govern determina- making, and daily operational activi-
tions of ownership? ties of the firm. Assets held in a rev-
(a) In determining whether the so- ocable living trust may be counted
cially and economically disadvantaged only in the situation where the same
participants in a firm own the firm, disadvantaged individual is the sole
you must consider all the facts in the grantor, beneficiary, and trustee.
record, viewed as a whole. (e) The contributions of capital or ex-
(b) To be an eligible DBE, a firm pertise by the socially and economi-
must be at least 51 percent owned by cally disadvantaged owners to acquire
socially and economically disadvan- their ownership interests must be real
taged individuals. and substantial. Examples of insuffi-
(1) In the case of a corporation, such cient contributions include a promise
individuals must own at least 51 per- to contribute capital, an unsecured
cent of the each class of voting stock note payable to the firm or an owner
outstanding and 51 percent of the ag- who is not a disadvantaged individual,
gregate of all stock outstanding. or mere participation in a firm’s ac-
(2) In the case of a partnership, 51 tivities as an employee. Debt instru-
percent of each class of partnership in- ments from financial institutions or
terest must be owned by socially and other organizations that lend funds in
economically disadvantaged individ- the normal course of their business do
uals. Such ownership must be reflected not render a firm ineligible, even if the
in the firm’s partnership agreement. debtor’s ownership interest is security
(3) In the case of a limited liability for the loan.
company, at least 51 percent of each (f) The following requirements apply
class of member interest must be to situations in which expertise is re-
owned by socially and economically lied upon as part of a disadvantaged
disadvantaged individuals. owner’s contribution to acquire owner-
(c) The firm’s ownership by socially ship:
and economically disadvantaged indi- (1) The owner’s expertise must be—
viduals must be real, substantial, and (i) In a specialized field;
continuing, going beyond pro forma (ii) Of outstanding quality;
ownership of the firm as reflected in (iii) In areas critical to the firm’s op-
ownership documents. The disadvan- erations;
taged owners must enjoy the cus- (iv) Indispensable to the firm’s poten-
tomary incidents of ownership, and tial success;
share in the risks and profits commen- (v) Specific to the type of work the
surate with their ownership interests, firm performs; and
as demonstrated by the substance, not (vi) Documented in the records of the
merely the form, of arrangements. firm. These records must clearly show
(d) All securities that constitute the contribution of expertise and its
ownership of a firm shall be held di- value to the firm.
rectly by disadvantaged persons. Ex- (2) The individual whose expertise is
cept as provided in this paragraph (d), relied upon must have a significant fi-
no securities or assets held in trust, or nancial investment in the firm.
by any guardian for a minor, are con- (g) You must always deem as held by
sidered as held by disadvantaged per- a socially and economically disadvan-
sons in determining the ownership of a taged individual, for purposes of deter-
firm. However, securities or assets held mining ownership, all interests in a
304
business or other assets obtained by ship interest in the manner sanctioned

the individual— by the laws of the state in which either
(1) As the result of a final property spouse or the firm is domiciled. You do
settlement or court order in a divorce not count a greater portion of joint or
or legal separation, provided that no community property assets toward
term or condition of the agreement or ownership than state law would recog-
divorce decree is inconsistent with this nize as belonging to the socially and
section; or economically disadvantaged owner of
(2) Through inheritance, or otherwise the applicant firm.
because of the death of the former (2) A copy of the document legally
owner. transferring and renouncing the other
(h)(1) You must presume as not being spouse’s rights in the jointly owned or
held by a socially and economically community assets used to acquire an
disadvantaged individual, for purposes ownership interest in the firm must be
of determining ownership, all interests included as part of the firm’s applica-
in a business or other assets obtained tion for DBE certification.
by the individual as the result of a gift, (j) You may consider the following
or transfer without adequate consider- factors in determining the ownership of
ation, from any non-disadvantaged in- a firm. However, you must not regard a
dividual or non-DBE firm who is— contribution of capital as failing to be
(i) Involved in the same firm for real and substantial, or find a firm in-
which the individual is seeking certifi- eligible, solely because—
cation, or an affiliate of that firm;
(1) A socially and economically dis-
(ii) Involved in the same or a similar
advantaged individual acquired his or
line of business; or
her ownership interest as the result of
(iii) Engaged in an ongoing business
a gift, or transfer without adequate
relationship with the firm, or an affil-
consideration, other than the types set
iate of the firm, for which the indi-
forth in paragraph (h) of this section;
vidual is seeking certification.
(2) To overcome this presumption and (2) There is a provision for the co-sig-
permit the interests or assets to be nature of a spouse who is not a socially
counted, the disadvantaged individual and economically disadvantaged indi-
must demonstrate to you, by clear and vidual on financing agreements, con-
convincing evidence, that— tracts for the purchase or sale of real
(i) The gift or transfer to the dis- or personal property, bank signature
advantaged individual was made for cards, or other documents; or
reasons other than obtaining certifi- (3) Ownership of the firm in question
cation as a DBE; and or its assets is transferred for adequate
(ii) The disadvantaged individual ac- consideration from a spouse who is not
tually controls the management, pol- a socially and economically disadvan-
icy, and operations of the firm, not- taged individual to a spouse who is
withstanding the continuing participa- such an individual. In this case, you
tion of a non-disadvantaged individual must give particularly close and care-
who provided the gift or transfer. ful scrutiny to the ownership and con-
(i) You must apply the following trol of a firm to ensure that it is owned
rules in situations in which marital as- and controlled, in substance as well as
sets form a basis for ownership of a in form, by a socially and economically
firm: disadvantaged individual.
(1) When marital assets (other than
the assets of the business in question), § 26.71 What rules govern determina-
tions concerning control?
held jointly or as community property
by both spouses, are used to acquire (a) In determining whether socially
the ownership interest asserted by one and economically disadvantaged own-
spouse, you must deem the ownership ers control a firm, you must consider
interest in the firm to have been ac- all the facts in the record, viewed as a
quired by that spouse with his or her whole.
own individual resources, provided that (b) Only an independent business may
the other spouse irrevocably renounces be certified as a DBE. An independent
and transfers all rights in the owner- business is one the viability of which
305
does not depend on its relationship long-term decisions on matters of man-

with another firm or firms. agement, policy and operations.
(1) In determining whether a poten- (1) A disadvantaged owner must hold
tial DBE is an independent business, the highest officer position in the com-
you must scrutinize relationships with pany (e.g., chief executive officer or
non-DBE firms, in such areas as per- president).
sonnel, facilities, equipment, financial (2) In a corporation, disadvantaged
and/or bonding support, and other re- owners must control the board of direc-
sources. tors.
(2) You must consider whether (3) In a partnership, one or more dis-
present or recent employer/employee advantaged owners must serve as gen-
relationships between the disadvan- eral partners, with control over all
taged owner(s) of the potential DBE partnership decisions.
and non-DBE firms or persons associ- (e) Individuals who are not socially
ated with non-DBE firms compromise and economically disadvantaged may
the independence of the potential DBE be involved in a DBE firm as owners,
firm. managers, employees, stockholders, of-
(3) You must examine the firm’s rela- ficers, and/or directors. Such individ-
tionships with prime contractors to de- uals must not, however, possess or ex-
termine whether a pattern of exclusive ercise the power to control the firm, or
or primary dealings with a prime con- be disproportionately responsible for
tractor compromises the independence
the operation of the firm.
of the potential DBE firm.
(f) The socially and economically dis-
(4) In considering factors related to
advantaged owners of the firm may del-
the independence of a potential DBE
egate various areas of the manage-
firm, you must consider the consist-
ment, policymaking, or daily oper-
ency of relationships between the po-
ations of the firm to other participants
tential DBE and non-DBE firms with
normal industry practice. in the firm, regardless of whether these
participants are socially and economi-
(c) A DBE firm must not be subject
cally disadvantaged individuals. Such
to any formal or informal restrictions
delegations of authority must be rev-
which limit the customary discretion
of the socially and economically dis- ocable, and the socially and economi-
advantaged owners. There can be no re- cally disadvantaged owners must re-
strictions through corporate charter tain the power to hire and fire any per-
provisions, by-law provisions, con- son to whom such authority is dele-
tracts or any other formal or informal gated. The managerial role of the so-
devices (e.g., cumulative voting rights, cially and economically disadvantaged
voting powers attached to different owners in the firm’s overall affairs
classes of stock, employment con- must be such that the recipient can
tracts, requirements for concurrence reasonably conclude that the socially
by non-disadvantaged partners, condi- and economically disadvantaged own-
tions precedent or subsequent, execu- ers actually exercise control over the
tory agreements, voting trusts, restric- firm’s operations, management, and
tions on or assignments of voting policy.
rights) that prevent the socially and (g) The socially and economically
economically disadvantaged owners, disadvantaged owners must have an
without the cooperation or vote of any overall understanding of, and manage-
non-disadvantaged individual, from rial and technical competence and ex-
making any business decision of the perience directly related to, the type of
firm. This paragraph does not preclude business in which the firm is engaged
a spousal co-signature on documents as and the firm’s operations. The socially
provided for in § 26.69(j)(2). and economically disadvantaged own-
(d) The socially and economically ers are not required to have experience
disadvantaged owners must possess the or expertise in every critical area of
power to direct or cause the direction the firm’s operations, or to have great-
of the management and policies of the er experience or expertise in a given
firm and to make day-to-day as well as field than managers or key employees.
306
The socially and economically dis- the firm as a factor in determining who
advantaged owners must have the abil- controls the firm, particularly when
ity to intelligently and critically the non-disadvantaged individual re-
evaluate information presented by mains involved with the firm and con-
other participants in the firm’s activi- tinues to receive greater compensation
ties and to use this information to than the disadvantaged individual.
make independent decisions concerning (j) In order to be viewed as control-
the firm’s daily operations, manage- ling a firm, a socially and economi-
ment, and policymaking. Generally, cally disadvantaged owner cannot en-
expertise limited to office manage- gage in outside employment or other
ment, administration, or bookkeeping business interests that conflict with
functions unrelated to the principal the management of the firm or prevent
business activities of the firm is insuf- the individual from devoting sufficient
ficient to demonstrate control. time and attention to the affairs of the
(h) If state or local law requires the firm to control its activities. For ex-
persons to have a particular license or ample, absentee ownership of a busi-
other credential in order to own and/or ness and part-time work in a full-time
control a certain type of firm, then the firm are not viewed as constituting
socially and economically disadvan- control. However, an individual could
taged persons who own and control a be viewed as controlling a part-time
potential DBE firm of that type must business that operates only on eve-
possess the required license or creden- nings and/or weekends, if the indi-
tial. If state or local law does not re- vidual controls it all the time it is op-
quire such a person to have such a li- erating.
cense or credential to own and/or con-
(k)(1) A socially and economically
trol a firm, you must not deny certifi-
disadvantaged individual may control
cation solely on the ground that the
a firm even though one or more of the
person lacks the license or credential.
individual’s immediate family mem-
However, you may take into account
bers (who themselves are not socially
the absence of the license or credential
and economically disadvantaged indi-
as one factor in determining whether
viduals) participate in the firm as a
the socially and economically dis-
manager, employee, owner, or in an-
advantaged owners actually control
the firm. other capacity. Except as otherwise
(i)(1) You may consider differences in provided in this paragraph, you must
remuneration between the socially and make a judgment about the control the
economically disadvantaged owners socially and economically disadvan-
and other participants in the firm in taged owner exercises vis-a-vis other
determining whether to certify a firm persons involved in the business as you
as a DBE. Such consideration shall be do in other situations, without regard
in the context of the duties of the per- to whether or not the other persons are
sons involved, normal industry prac- immediate family members.
tices, the firm’s policy and practice (2) If you cannot determine that the
concerning reinvestment of income, socially and economically disadvan-
and any other explanations for the dif- taged owners—as distinct from the
ferences proffered by the firm. You family as a whole—control the firm,
may determine that a firm is con- then the socially and economically dis-
trolled by its socially and economi- advantaged owners have failed to carry
cally disadvantaged owner although their burden of proof concerning con-
that owner’s remuneration is lower trol, even though they may participate
than that of some other participants in significantly in the firm’s activities.
the firm. (l) Where a firm was formerly owned
(2) In a case where a non-disadvan- and/or controlled by a non-disadvan-
taged individual formerly controlled taged individual (whether or not an im-
the firm, and a socially and economi- mediate family member), ownership
cally disadvantaged individual now and/or control were transferred to a so-
controls it, you may consider a dif- cially and economically disadvantaged
ference between the remuneration of individual, and the non-disadvantaged
the former and current controller of individual remains involved with the
307
firm in any capacity, the disadvan- has the right to profit from its efforts
taged individual now owning the firm and bears the risk of loss commensu-
must demonstrate to you, by clear and rate with ownership. Alternatively,
convincing evidence, that: even though a franchisee or licensee
(1) The transfer of ownership and/or may not be controlled by virtue of such
control to the disadvantaged individual provisions in the franchise agreement
was made for reasons other than ob- or license, affiliation could arise
taining certification as a DBE; and through other means, such as common
(2) The disadvantaged individual ac- management or excessive restrictions
tually controls the management, pol- on the sale or transfer of the franchise
icy, and operations of the firm, not- interest or license.
withstanding the continuing participa- (p) In order for a partnership to be
tion of a non-disadvantaged individual
controlled by socially and economi-
who formerly owned and/or controlled
cally disadvantaged individuals, any
the firm.
non-disadvantaged partners must not
(m) In determining whether a firm is
controlled by its socially and economi- have the power, without the specific
cally disadvantaged owners, you may written concurrence of the socially and
consider whether the firm owns equip- economically disadvantaged partner(s),
ment necessary to perform its work. to contractually bind the partnership
However, you must not determine that or subject the partnership to contract
a firm is not controlled by socially and or tort liability.
economically disadvantaged individ- (q) The socially and economically
uals solely because the firm leases, disadvantaged individuals controlling a
rather than owns, such equipment, firm may use an employee leasing com-
where leasing equipment is a normal pany. The use of such a company does
industry practice and the lease does not preclude the socially and economi-
not involve a relationship with a prime cally disadvantaged individuals from
contractor or other party that com- controlling their firm if they continue
promises the independence of the firm. to maintain an employer-employee re-
(n) You must grant certification to a lationship with the leased employees.
firm only for specific types of work in This includes being responsible for hir-
which the socially and economically ing, firing, training, assigning, and
disadvantaged owners have the ability otherwise controlling the on-the-job
to control the firm. To become cer- activities of the employees, as well as
tified in an additional type of work, ultimate responsibility for wage and
the firm need demonstrate to you only tax obligations related to the employ-
that its socially and economically dis- ees.
advantaged owners are able to control
the firm with respect to that type of § 26.73 What are other rules affecting
work. You may not, in this situation, certification?
require that the firm be recertified or
(a)(1) Consideration of whether a firm
submit a new application for certifi-
cation, but you must verify the dis- performs a commercially useful func-
advantaged owner’s control of the firm tion or is a regular dealer pertains
in the additional type of work. solely to counting toward DBE goals
(o) A business operating under a fran- the participation of firms that have al-
chise or license agreement may be cer- ready been certified as DBEs. Except as
tified if it meets the standards in this provided in paragraph (a)(2) of this sec-
subpart and the franchiser or licenser tion, you must not consider commer-
is not affiliated with the franchisee or cially useful function issues in any way
licensee. In determining whether affili- in making decisions about whether to
ation exists, you should generally not certify a firm as a DBE.
consider the restraints relating to (2) You may consider, in making cer-
standardized quality, advertising, ac- tification decisions, whether a firm has
counting format, and other provisions exhibited a pattern of conduct indi-
imposed on the franchisee or licensee cating its involvement in attempts to
by the franchise agreement or license, evade or subvert the intent or require-
provided that the franchisee or licensee ments of the DBE program.
308
(b) You must evaluate the eligibility subsidiary. The subsidiary may be certified,
of a firm on the basis of present cir- if it meets all other requirements.
cumstances. You must not refuse to Example 2: Disadvantaged individuals own
certify a firm based solely on historical 100 percent of the holding company, which
owns 51 percent of a subsidiary. The sub-
information indicating a lack of owner- sidiary may be certified, if all other require-
ship or control of the firm by socially ments are met.
and economically disadvantaged indi- Example 3: Disadvantaged individuals own
viduals at some time in the past, if the 80 percent of the holding company, which in
firm currently meets the ownership turn owns 70 percent of a subsidiary. In this
and control standards of this part. Nor case, the cumulative ownership of the sub-
must you refuse to certify a firm solely sidiary by disadvantaged individuals is 56
on the basis that it is a newly formed percent (80 percent of the 70 percent). This is
more than 51 percent, so you may certify the
firm.
subsidiary, if all other requirements are met.
(c) DBE firms and firms seeking DBE Example 4: Same as Example 2 or 3, but
certification shall cooperate fully with someone other than the socially and eco-
your requests (and DOT requests) for nomically disadvantaged owners of the par-
information relevant to the certifi- ent or holding company controls the sub-
cation process. Failure or refusal to sidiary. Even though the subsidiary is owned
provide such information is a ground by disadvantaged individuals, through the
for a denial or removal of certification. holding or parent company, you cannot cer-
(d) Only firms organized for profit tify it because it fails to meet control re-
quirements.
may be eligible DBEs. Not-for-profit Example 5: Disadvantaged individuals own
organizations, even though controlled 60 percent of the holding company, which in
by socially and economically disadvan- turn owns 51 percent of a subsidiary. In this
taged individuals, are not eligible to be case, the cumulative ownership of the sub-
certified as DBEs. sidiary by disadvantaged individuals is about
(e) An eligible DBE firm must be 31 percent. This is less than 51 percent, so
owned by individuals who are socially you cannot certify the subsidiary.
and economically disadvantaged. Ex- Example 6: The holding company, in addi-
tion to the subsidiary seeking certification,
cept as provided in this paragraph, a
owns several other companies. The combined
firm that is not owned by such individ- gross receipts of the holding companies and
uals, but instead is owned by another its subsidiaries are greater than the size
firm—even a DBE firm—cannot be an standard for the subsidiary seeking certifi-
eligible DBE. cation and/or the gross receipts cap of
(1) If socially and economically dis- § 26.65(b). Under the rules concerning affili-
advantaged individuals own and con- ation, the subsidiary fails to meet the size
trol a firm through a parent or holding standard and cannot be certified.
company, established for tax, capital- (f) Recognition of a business as a sep-
ization or other purposes consistent arate entity for tax or corporate pur-
with industry practice, and the parent poses is not necessarily sufficient to
or holding company in turn owns and demonstrate that a firm is an inde-
controls an operating subsidiary, you pendent business, owned and controlled
may certify the subsidiary if it other- by socially and economically disadvan-
wise meets all requirements of this taged individuals.
subpart. In this situation, the indi- (g) You must not require a DBE firm
vidual owners and controllers of the to be prequalified as a condition for
parent or holding company are deemed certification unless the recipient re-
to control the subsidiary through the quires all firms that participate in its
parent or holding company. contracts and subcontracts to be
(2) You may certify such a subsidiary prequalified.
only if there is cumulatively 51 percent (h) A firm that is owned by an Indian
ownership of the subsidiary by socially tribe or Native Hawaiian organization,
and economically disadvantaged indi- rather than by Indians or Native Ha-
viduals. The following examples illus- waiians as individuals, may be eligible
trate how this cumulative ownership for certification. Such a firm must
provision works: meet the size standards of § 26.35. Such
Example 1: Socially and economically dis- a firm must be controlled by socially
advantaged individuals own 100 percent of a and economically disadvantaged indi-
holding company, which has a wholly-owned viduals, as provided in § 26.71.
309
(i) The following special rules apply Subpart E—Certification

to the certification of firms related to Procedures
Alaska Native Corporations (ANCs).
(1) Notwithstanding any other provi- § 26.81 What are the requirements for
sions of this subpart, a direct or indi- Unified Certification Programs?
rect subsidiary corporation, joint ven- (a) You and all other DOT recipients
ture, or partnership entity of an ANC is in your state must participate in a
eligible for certification as a DBE if it Unified Certification Program (UCP).
meets all of the following require- (1) Within three years of March 4,
ments: 1999, you and the other recipients in
(i) The Settlement Common Stock of your state must sign an agreement es-
the underlying ANC and other stock of tablishing the UCP for that state and
the ANC held by holders of the Settle- submit the agreement to the Secretary
ment Common Stock and by Natives for approval. The Secretary may, on
and descendents of Natives represents a the basis of extenuating circumstances
majority of both the total equity of the shown by the recipients in the state,
ANC and the total voting power of the extend this deadline for no more than
corporation for purposes of electing di- one additional year.
rectors; (2) The agreement must provide for
(ii) The shares of stock or other units the establishment of a UCP meeting all
of common ownership interest in the the requirements of this section. The
subsidiary, joint venture, or partner- agreement must specify that the UCP
ship entity held by the ANC and by will follow all certification procedures
holders of its Settlement Common and standards of this part, on the same
Stock represent a majority of both the basis as recipients; that the UCP shall
total equity of the entity and the total cooperate fully with oversight, review,
voting power of the entity for the pur- and monitoring activities of DOT and
pose of electing directors, the general its operating administrations; and that
partner, or principal officers; and the UCP shall implement DOT direc-
(iii) The subsidiary, joint venture, or tives and guidance concerning certifi-
partnership entity has been certified cation matters. The agreement shall
by the Small Business Administration also commit recipients to ensuring
under the 8(a) or small disadvantaged that the UCP has sufficient resources
business program. and expertise to carry out the require-
(2) As a recipient to whom an ANC- ments of this part. The agreement
related entity applies for certification, shall include an implementation sched-
you do not use the DOT uniform appli- ule ensuring that the UCP is fully oper-
cation form (see Appendix F of this ational no later than 18 months fol-
lowing the approval of the agreement
part). You must obtain from the firm
by the Secretary.
documentation sufficient to dem-
onstrate that entity meets the require- (3) Subject to approval by the Sec-
ments of paragraph (i)(1) of this secretary, the UCP in each state may take
any form acceptable to the recipients
tion. You must also obtain sufficient
in that state.
information about the firm to allow
you to administer your program (e.g., (4) The Secretary shall review the
information that would appear in your UCP and approve it, disapprove it, or
remand it to the recipients in the state
DBE Directory).
for revisions. A complete agreement
(3) If an ANC-related firm does not
which is not disapproved or remanded
meet all the conditions of paragraph within 180 days of its receipt is deemed
(i)(1) of this section, then it must meet to be accepted.
the requirements of paragraph (h) of
(5) If you and the other recipients in
this section in order to be certified, on
your state fail to meet the deadlines
the same basis as firms owned by In-
set forth in this paragraph (a), you
dian Tribes or Native Hawaiian Organi- shall have the opportunity to make an
zations. explanation to the Secretary why a
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR deadline could not be met and why
35555, June 16, 2003] meeting the deadline was beyond your
310
control. If you fail to make such an ex- section, you may enter into agree-
planation, or the explanation does not ments with other recipients, on a re-
justify the failure to meet the dead- gional or inter-jurisdictional basis, to
line, the Secretary shall direct you to perform certification functions re-
complete the required action by a date quired by this part. You may also grant
certain. If you and the other recipients reciprocity to other recipient’s certifi-
fail to carry out this direction in a cation decisions.
timely manner, you are collectively in (g) Each UCP shall maintain a uni-
noncompliance with this part. fied DBE directory containing, for all
(b) The UCP shall make all certifi- firms certified by the UCP (including
cation decisions on behalf of all DOT those from other states certified under
recipients in the state with respect to the provisions of this section), the in-
participation in the DOT DBE Pro- formation required by § 26.31. The UCP
gram. shall make the directory available to
(1) Certification decisions by the UCP the public electronically, on the inter-
shall be binding on all DOT recipients net, as well as in print. The UCP shall
within the state. update the electronic version of the di-
(2) The UCP shall provide ‘‘one-stop rectory by including additions, dele-
shopping’’ to applicants for certifi- tions, and other changes as soon as
cation, such that an applicant is re- they are made.
quired to apply only once for a DBE (h) Except as otherwise specified in
certification that will be honored by this section, all provisions of this sub-
all recipients in the state. part and subpart D of this part per-
(3) All obligations of recipients with taining to recipients also apply to
respect to certification and non- UCPs.
discrimination must be carried out by
UCPs, and recipients may use only § 26.83 What procedures do recipients
UCPs that comply with the certifi- follow in making certification deci-
cation and nondiscrimination require- sions?
ments of this part.
(a) You must ensure that only firms
(c) All certifications by UCPs shall
certified as eligible DBEs under this
be pre-certifications; i.e., certifications
section participate as DBEs in your
that have been made final before the
program.
due date for bids or offers on a contract
on which a firm seeks to participate as (b) You must determine the eligi-
a DBE. bility of firms as DBEs consistent with
(d) A UCP is not required to process the standards of subpart D of this part.
an application for certification from a When a UCP is formed, the UCP must
firm having its principal place of busi- meet all the requirements of subpart D
ness outside the state if the firm is not of this part and this subpart that re-
certified by the UCP in the state in cipients are required to meet.
which it maintains its principal place (c) You must take all the following
of business. The ‘‘home state’’ UCP steps in determining whether a DBE
shall share its information and docu- firm meets the standards of subpart D
ments concerning the firm with other of this part:
UCPs that are considering the firm’s (1) Perform an on-site visit to the of-
application. fices of the firm. You must interview
(e) Subject to DOT approval as pro- the principal officers of the firm and
vided in this section, the recipients in review their résumés and/or work his-
two or more states may form a re- tories. You must also perform an on-
gional UCP. UCPs may also enter into site visit to job sites if there are such
written reciprocity agreements with sites on which the firm is working at
other UCPs. Such an agreement shall the time of the eligibility investigation
outline the specific responsibilities of in your jurisdiction or local area. You
each participant. A UCP may accept may rely upon the site visit report of
the certification of any other UCP or any other recipient with respect to a
DOT recipient. firm applying for certification;
(f) Pending the establishment of (2) If the firm is a corporation, ana-
UCPs meeting the requirements of this lyze the ownership of stock in the firm;
311
(3) Analyze the bonding and financial (1) Certify the firm in reliance on the
capacity of the firm; certification decision of the other re-
(4) Determine the work history of the cipient;
firm, including contracts it has re- (2) Make an independent certification
ceived and work it has completed; decision based on documentation pro-
(5) Obtain a statement from the firm vided by the other recipient, aug-
of the type of work it prefers to per- mented by any additional information
form as part of the DBE program and you require the applicant to provide; or
its preferred locations for performing (3) Require the applicant to go
the work, if any; through your application process with-
out regard to the action of the other
(6) Obtain or compile a list of the
recipient.
equipment owned by or available to the
(f) Subject to the approval of the con-
firm and the licenses the firm and its cerned operating administration as
key personnel possess to perform the part of your DBE program, you may
work it seeks to do as part of the DBE impose a reasonable application fee for
program; certification. Fee waivers shall be
(7) Require potential DBEs to com- made in appropriate cases.
plete and submit an appropriate appli- (g) You must safeguard from disclo-
cation form, unless the potential DBE sure to unauthorized persons informa-
is an SBA certified firm applying pur- tion gathered as part of the certifi-
suant to the DOT/SBA MOU. cation process that may reasonably be
(i) You must use the application form regarded as proprietary or other con-
provided in Appendix F to this part fidential business information, con-
without change or revision. However, sistent with applicable Federal, state,
you may provide in your DBE program, and local law.
with the approval of the concerned op- (h) Once you have certified a DBE, it
erating administration, for shall remain certified for a period of at
supplementing the form by requesting least three years unless and until its
additional information not incon- certification has been removed through
sistent with this part. the procedures of § 26.87. You may not
(ii) You must make sure that the ap- require DBEs to reapply for certifi-
plicant attests to the accuracy and cation as a condition of continuing to
truthfulness of the information on the participate in the program during this
application form. This shall be done ei- three-year period, unless the factual
ther in the form of an affidavit sworn basis on which the certification was
to by the applicant before a person who made changes.
is authorized by state law to admin- (i) If you are a DBE, you must inform
ister oaths or in the form of an the recipient or UCP in writing of any
unsworn declaration executed under change in circumstances affecting your
penalty of perjury of the laws of the ability to meet size, disadvantaged sta-
tus, ownership, or control require-
United States.
ments of this part or any material
(iii) You must review all information
change in the information provided in
on the form prior to making a decision your application form.
about the eligibility of the firm. (1) Changes in management responsi-
(d) When another recipient, in con- bility among members of a limited li-
nection with its consideration of the ability company are covered by this re-
eligibility of a firm, makes a written quirement.
request for certification information (2) You must attach supporting docu-
you have obtained about that firm mentation describing in detail the na-
(e.g., including application materials ture of such changes.
or the report of a site visit, if you have (3) The notice must take the form of
made one to the firm), you must an affidavit sworn to by the applicant
promptly make the information avail- before a person who is authorized by
able to the other recipient. state law to administer oaths or of an
(e) When another DOT recipient has unsworn declaration executed under
certified a firm, you have discretion to penalty of perjury of the laws of the
take any of the following actions: United States. You must provide the
312
written notification within 30 days of § 26.84 How do recipients process ap-

the occurrence of the change. If you plications submitted pursuant to
fail to make timely notification of the DOT/SBA MOU?
such a change, you will be deemed to (a) When an SBA-certified firm ap-
have failed to cooperate under plies for certification pursuant to the
§ 26.109(c). DOT/SBA MOU, you must accept the
(j) If you are a DBE, you must pro- certification applications, forms and
vide to the recipient, every year on the packages submitted by a firm to the
anniversary of the date of your certifi- SBA for either the 8(a) BD or SDB pro-
cation, an affidavit sworn to by the grams, in lieu of requiring the appli-
firm’s owners before a person who is cant firm to complete your own appli-
authorized by state law to administer cation forms and packages. The appli-
oaths or an unsworn declaration exe- cant may submit the package directly,
cuted under penalty of perjury of the or may request that the SBA forward
the package to you. Pursuant to the
laws of the United States. This affi-
MOU, the SBA will forward the pack-
davit must affirm that there have been
age within thirty days.
no changes in the firm’s circumstances (b) If necessary, you may request ad-
affecting its ability to meet size, dis- ditional relevant information from the
advantaged status, ownership, or con- SBA. The SBA will provide this addi-
trol requirements of this part or any tional material within forty-five days
material changes in the information of your written request.
provided in its application form, except (c) Before certifying a firm based on
for changes about which you have noti- its 8(a) BD or SDB certification, you
fied the recipient under paragraph (i) must conduct an on-site review of the
of this section. The affidavit shall spe- firm (see § 26.83(c)(1)). If the SBA con-
cifically affirm that your firm conducted an on-site review, you may rely
tinues to meet SBA business size cri- on the SBA’s report of the on-site re-
teria and the overall gross receipts cap view. In connection with this review,
of this part, documenting this affirma- you may also request additional rel-
tion with supporting documentation of evant information from the firm.
your firm’s size and gross receipts. If (d) Unless you determine, based on
you fail to provide this affidavit in a the on-site review and information ob-
timely manner, you will be deemed to tained in connection with it, that the
have failed to cooperate under firm does not meet the eligibility re-
§ 26.109(c). quirements of Subpart D of this part,
(k) If you are a recipient, you must you must certify the firm.
make decisions on applications for cer- (e) You are not required to process an
tification within 90 days of receiving application for certification from an
from the applicant firm all information SBA-certified firm having its principal
required under this part. You may ex- place of business outside the state(s) in
tend this time period once, for no more which you operate unless there is a re-
than an additional 60 days, upon writ- port of a ‘‘home state’’ on-site review
ten notice to the firm, explaining fully on which you may rely.
(f) You are not required to process an
and specifically the reasons for the ex-
application for certification from an
tension. You may establish a different
SBA-certified firm if the firm does not
time frame in your DBE program, upon
provide products or services that you
a showing that this time frame is not
use in your DOT-assisted programs or
feasible, and subject to the approval of airport concessions.
the concerned operating administra-
tion. Your failure to make a decision [68 FR 35555, June 16, 2003]
by the applicable deadline under this
§ 26.85 How do recipients respond to
paragraph is deemed a constructive de- requests from DBE-certified firms
nial of the application, on the basis of or the SBA made pursuant to the
which the firm may appeal to DOT DOT/SBA MOU?
under § 26.89. (a) Upon receipt of a signed, written
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR request from a DBE-certified firm, you
35555, June 16, 2003] must transfer to the SBA a copy of the
313
firm’s application package. You must § 26.87 What procedures does a recipi-
transfer this information within thirty ent use to remove a DBE’s eligi-
days of receipt of the request. bility?
(b) If necessary, the SBA may make a (a) Ineligibility complaints. (1) Any per-
written request to the recipient for ad- son may file with you a written com-
ditional materials (e.g., the report of plaint alleging that a currently-cer-
the on-site review). You must provide a tified firm is ineligible and specifying
copy of this material to the SBA with- the alleged reasons why the firm is in-
in forty-five days of the additional re- eligible. You are not required to accept
quest. a general allegation that a firm is in-
(c) You must provide appropriate as- eligible or an anonymous complaint.
sistance to SBA-certified firms, includ- The complaint may include any infor-
mation or arguments supporting the
ing providing information pertaining
complainant’s assertion that the firm
to the DBE application process, filing
is ineligible and should not continue to
locations, required documentation and
be certified. Confidentiality of com-
status of applications. plainants’ identities must be protected
[68 FR 35555, June 16, 2003] as provided in § 26.109(b).
(2) You must review your records
§ 26.86 What rules govern recipients’ concerning the firm, any material pro-
denials of initial requests for cer- vided by the firm and the complainant,
tification? and other available information. You
(a) When you deny a request by a may request additional information
firm, which is not currently certified from the firm or conduct any other in-
with you, to be certified as a DBE, you vestigation that you deem necessary.
must provide the firm a written expla- (3) If you determine, based on this re-
nation of the reasons for the denial, view, that there is reasonable cause to
specifically referencing the evidence in believe that the firm is ineligible, you
must provide written notice to the firm
the record that supports each reason
that you propose to find the firm ineli-
for the denial. All documents and other
gible, setting forth the reasons for the
information on which the denial is
proposed determination. If you deter-
based must be made available to the mine that such reasonable cause does
applicant, on request. not exist, you must notify the com-
(b) When you deny DBE certification plainant and the firm in writing of this
to a firm certified by the SBA, you determination and the reasons for it.
must notify the SBA in writing. The All statements of reasons for findings
notification must include the reason on the issue of reasonable cause must
for denial. specifically reference the evidence in
(c) When a firm is denied certifi- the record on which each reason is
cation, you must establish a time pe- based.
riod of no more than twelve months (b) Recipient-initiated proceedings. If,
that must elapse before the firm may based on notification by the firm of a
reapply to the recipient for certifi- change in its circumstances or other
cation. You may provide, in your DBE information that comes to your atten-
program, subject to approval by the tion, you determine that there is rea-
concerned operating administration, a sonable cause to believe that a cur-
shorter waiting period for reapplica- rently certified firm is ineligible, you
tion. The time period for reapplication must provide written notice to the firm
begins to run on the date the expla- that you propose to find the firm ineli-
nation required by paragraph (a) of this gible, setting forth the reasons for the
section is received by the firm. proposed determination. The statement
(d) When you make an administra- of reasons for the finding of reasonable
cause must specifically reference the
tively final denial of certification con-
evidence in the record on which each
cerning a firm, the firm may appeal the
reason is based.
denial to the Department under § 26.89. (c) DOT directive to initiate proceeding.
[64 FR 5126, Feb. 2, 1999. Redesignated and (1) If the concerned operating adminis-
amended at 68 FR 35555, June 16, 2003] tration determines that information in
314
your certification records, or other in- to remove the firm’s eligibility and are
formation available to the concerned not subject, with respect to the matter,
operating administration, provides rea- to direction from the office or per-
sonable cause to believe that a firm sonnel who did take part in these ac-
you certified does not meet the eligi- tions.
bility criteria of this part, the con- (1) Your method of implementing this
cerned operating administration may requirement must be made part of your
direct you to initiate a proceeding to DBE program.
remove the firm’s certification. (2) The decisionmaker must be an in-
(2) The concerned operating adminis- dividual who is knowledgeable about
tration must provide you and the firm the certification requirements of your
a notice setting forth the reasons for DBE program and this part.
the directive, including any relevant (3) Before a UCP is operational in its
documentation or other information. state, a small airport or small transit
(3) You must immediately commence authority (i.e., an airport or transit au-
and prosecute a proceeding to remove thority serving an area with less than
eligibility as provided by paragraph (b) 250,000 population) is required to meet
of this section. this requirement only to the extent
(d) Hearing. When you notify a firm feasible.
that there is reasonable cause to re- (f) Grounds for decision. You must not
move its eligibility, as provided in base a decision to remove eligibility on
paragraph (a), (b), or (c) of this section, a reinterpretation or changed opinion
you must give the firm an opportunity of information available to the recipi-
for an informal hearing, at which the ent at the time of its certification of
firm may respond to the reasons for the firm. You may base such a decision
the proposal to remove its eligibility in only on one or more of the following:
person and provide information and ar- (1) Changes in the firm’s cir-
guments concerning why it should re- cumstances since the certification of
main certified. the firm by the recipient that render
(1) In such a proceeding, you bear the the firm unable to meet the eligibility
burden of proving, by a preponderance standards of this part;
of the evidence, that the firm does not (2) Information or evidence not avail-
meet the certification standards of this able to you at the time the firm was
part. certified;
(2) You must maintain a complete (3) Information that was concealed or
record of the hearing, by any means ac- misrepresented by the firm in previous
ceptable under state law for the reten- certification actions by a recipient;
tion of a verbatim record of an admin- (4) A change in the certification
istrative hearing. If there is an appeal standards or requirements of the De-
to DOT under § 26.89, you must provide partment since you certified the firm;
a transcript of the hearing to DOT and, or
on request, to the firm. You must re- (5) A documented finding that your
tain the original record of the hearing. determination to certify the firm was
You may charge the firm only for the factually erroneous.
cost of copying the record. (g) Notice of decision. Following your
(3) The firm may elect to present in- decision, you must provide the firm
formation and arguments in writing, written notice of the decision and the
without going to a hearing. In such a reasons for it, including specific ref-
situation, you bear the same burden of erences to the evidence in the record
proving, by a preponderance of the evi- that supports each reason for the deci-
dence, that the firm does not meet the sion. The notice must inform the firm
certification standards, as you would of the consequences of your decision
during a hearing. and of the availability of an appeal to
(e) Separation of functions. You must the Department of Transportation
ensure that the decision in a pro- under § 26.89. You must send copies of
ceeding to remove a firm’s eligibility is the notice to the complainant in an in-
made by an office and personnel that eligibility complaint or the concerned
did not take part in actions leading to operating administration that had di-
or seeking to implement the proposal rected you to initiate the proceeding.
315
(h) When you decertify a DBE firm § 26.89 What is the process for certifi-
certified by the SBA, you must notify cation appeals to the Department of
the SBA in writing. The notification Transportation?
must include the reason for denial. (a)(1) If you are a firm that is denied
(i) Status of firm during proceeding. (1) certification or whose eligibility is re-
A firm remains an eligible DBE during moved by a recipient, including SBA-
the pendancy of your proceeding to recertified firms applying pursuant to
move its eligibility. the DOT/SBA MOU, you may make an
(2) The firm does not become ineli- administrative appeal to the Depart-
gible until the issuance of the notice ment.
provided for in paragraph (g) of this (2) If you are a complainant in an in-
section. eligibility complaint to a recipient (in-
(j) Effects of removal of eligibility. cluding the concerned operating ad-
When you remove a firm’s eligibility, ministration in the circumstances pro-
you must take the following action: vided in § 26.87(c)), you may appeal to
(1) When a prime contractor has the Department if the recipient does
made a commitment to using the ineli- not find reasonable cause to propose re-
gible firm, or you have made a commit- moving the firm’s eligibility or, fol-
ment to using a DBE prime contractor, lowing a removal of eligibility pro-
but a subcontract or contract has not ceeding, determines that the firm is el-
been executed before you issue the de- igible.
certification notice provided for in (3) Send appeals to the following ad-
paragraph (g) of this section, the ineli- dress: Department of Transportation,
gible firm does not count toward the Office of Civil Rights, 400 7th Street,
contract goal or overall goal. You must SW, Room 5414, Washington, DC 20590.
direct the prime contractor to meet (b) Pending the Department’s deci-
the contract goal with an eligible DBE sion in the matter, the recipient’s deci-
firm or demonstrate to you that it has sion remains in effect. The Department
made a good faith effort to do so. does not stay the effect of the recipi-
(2) If a prime contractor has executed ent’s decision while it is considering an
a subcontract with the firm before you appeal.
have notified the firm of its ineligi- (c) If you want to file an appeal, you
bility, the prime contractor may con- must send a letter to the Department
tinue to use the firm on the contract within 90 days of the date of the recipi-
and may continue to receive credit to- ent’s final decision, including informa-
ward its DBE goal for the firm’s work. tion and arguments concerning why
In this case, or in a case where you the recipient’s decision should be re-
have let a prime contract to the DBE versed. The Department may accept an
that was later ruled ineligible, the por- appeal filed later than 90 days after the
tion of the ineligible firm’s perform- date of the decision if the Department
ance of the contract remaining after determines that there was good cause
you issued the notice of its ineligi- for the late filing of the appeal.
bility shall not count toward your (1) If you are an appellant who is a
overall goal, but may count toward the firm which has been denied certifi-
contract goal. cation, whose certification has been re-
(3) Exception: If the DBE’s ineligi- moved, whose owner is determined not
bility is caused solely by its having ex- to be a member of a designated dis-
ceeded the size standard during the advantaged group, or concerning whose
performance of the contract, you may owner the presumption of disadvantage
continue to count its participation on has been rebutted, your letter must
that contract toward overall and con- state the name and address of any
tract goals. other recipient which currently cer-
(k) Availability of appeal. When you tifies the firm, which has rejected an
make an administratively final reapplication for certification from the
moval of a firm’s eligibility under this firm or removed the firm’s eligibility
section, the firm may appeal the re- within one year prior to the date of the
moval to the Department under § 26.89. appeal, or before which an application
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR for certification or a removal of eligi-
35556, June 16, 2003] bility is pending. Failure to provide
316
this information may be deemed a fail- makes available, on request by the

ure to cooperate under § 26.109(c). firm and any third-party complainant
(2) If you are an appellant other than involved, any supplementary informa-
one described in paragraph (c)(1) of this tion it receives from any source.
section, the Department will request, (1) The Department affirms your de-
and the firm whose certification has cision unless it determines, based on
been questioned shall promptly pro- the entire administrative record, that
vide, the information called for in your decision is unsupported by sub-
paragraph (c)(1) of this section. Failure stantial evidence or inconsistent with
to provide this information may be the substantive or procedural provi-
deemed a failure to cooperate under sions of this part concerning certifi-
§ 26.109(c). cation.
(d) When it receives an appeal, the (2) If the Department determines,
Department requests a copy of the re- after reviewing the entire administra-
cipient’s complete administrative tive record, that your decision was un-
record in the matter. If you are the re- supported by substantial evidence or
cipient, you must provide the adminis- inconsistent with the substantive or
trative record, including a hearing procedural provisions of this part con-
transcript, within 20 days of the De- cerning certification, the Department
partment’s request. The Department reverses your decision and directs you
may extend this time period on the to certify the firm or remove its eligi-
basis of a recipient’s showing of good bility, as appropriate. You must take
cause. To facilitate the Department’s the action directed by the Depart-
review of a recipient’s decision, you ment’s decision immediately upon re-
must ensure that such administrative ceiving written notice of it.
records are well organized, indexed, (3) The Department is not required to
and paginated. Records that do not reverse your decision if the Depart-
comport with these requirements are ment determines that a procedural
not acceptable and will be returned to error did not result in fundamental un-
you to be corrected immediately. If an fairness to the appellant or substan-
appeal is brought concerning one re- tially prejudice the opportunity of the
cipient’s certification decision con- appellant to present its case.
cerning a firm, and that recipient re- (4) If it appears that the record is in-
lied on the decision and/or administra- complete or unclear with respect to
tive record of another recipient, this matters likely to have a significant
requirement applies to both recipients impact on the outcome of the case, the
involved. Department may remand the record to
(e) The Department makes its deci- you with instructions seeking clarifica-
sion based solely on the entire adminis- tion or augmentation of the record be-
trative record. The Department does fore making a finding. The Department
not make a de novo review of the mat- may also remand a case to you for fur-
ter and does not conduct a hearing. ther proceedings consistent with De-
The Department may supplement the partment instructions concerning the
administrative record by adding rel- proper application of the provisions of
evant information made available by this part.
the DOT Office of Inspector General; (5) The Department does not uphold
Federal, state, or local law enforce- your decision based on grounds not
ment authorities; officials of a DOT op- specified in your decision.
erating administration or other appro- (6) The Department’s decision is
priate DOT office; a recipient; or a firm based on the status and circumstances
or other private party. of the firm as of the date of the deci-
(f) As a recipient, when you provide sion being appealed.
supplementary information to the De- (7) The Department provides written
partment, you shall also make this in- notice of its decision to you, the firm,
formation available to the firm and and the complainant in an ineligibility
any third-party complainant involved, complaint. A copy of the notice is also
consistent with Federal or applicable sent to any other recipient whose ad-
state laws concerning freedom of infor- ministrative record or decision has
mation and privacy. The Department been involved in the proceeding (see
317
paragraph (d) of this section). The De- written notice of Department’s deter-
partment will also notify the SBA in mination.
writing when DOT takes an action on (4) If the Department determines
an appeal that results in or confirms a that you erroneously determined that
loss of eligibility to any SBA-certified the presumption of social and eco-
firm. The notice includes the reasons nomic disadvantage either should or
for the Department’s decision, includ- should not be deemed rebutted, you
ing specific references to the evidence must take appropriate corrective ac-
in the record that supports each reason tion as determined by the Department.
for the decision. (5) If the Department affirms your
(8) The Department’s policy is to determination, no further action is
make its decision within 180 days of re- necessary.
ceiving the complete administrative (c) Where DOT has upheld your de-
record. If the Department does not nial of certification to or removal of
make its decision within this period, eligibility from a firm, or directed the
the Department provides written no- removal of a firm’s eligibility, other
tice to concerned parties, including a recipients with whom the firm is cer-
statement of the reason for the delay tified may commence a proceeding to
and a date by which the appeal decision remove the firm’s eligibility under
will be made. § 26.87. Such recipients must not re-
(g) All decisions under this section move the firm’s eligibility absent such
are administratively final, and are not a proceeding. Where DOT has reversed
subject to petitions for reconsider- your denial of certification to or re-
ation. moval of eligibility from a firm, other
recipients must take the DOT action
into account in any certification ac-
68951, Nov. 15, 2000; 68 FR 35556, June 16, 2003]
tion involving the firm. However, other
§ 26.91 What actions do recipients take recipients are not required to certify
following DOT certification appeal the firm based on the DOT decision.
decisions?
(a) If you are the recipient from Subpart F—Compliance and
whose action an appeal under § 26.89 is Enforcement
taken, the decision is binding. It is not
binding on other recipients. § 26.101 What compliance procedures
(b) If you are a recipient to which a apply to recipients?
DOT determination under § 26.89 is ap- (a) If you fail to comply with any re-
plicable, you must take the following quirement of this part, you may be
action: subject to formal enforcement action
(1) If the Department determines under § 26.103 or § 26.105 or appropriate
that you erroneously certified a firm, program sanctions by the concerned
you must remove the firm’s eligibility operating administration, such as the
on receipt of the determination, with- suspension or termination of Federal
out further proceedings on your part. funds, or refusal to approve projects,
Effective on the date of your receipt of grants or contracts until deficiencies
the Department’s determination, the are remedied. Program sanctions may
consequences of a removal of eligibility include, in the case of the FHWA pro-
set forth in § 26.87(i) take effect. gram, actions provided for under 23
(2) If the Department determines CFR 1.36; in the case of the FAA pro-
that you erroneously failed to find rea- gram, actions consistent with 49 U.S.C.
sonable cause to remove the firm’s eli- 47106(d), 47111(d), and 47122; and in the
gibility, you must expeditiously com- case of the FTA program, any actions
mence a proceeding to determine permitted under 49 U.S.C. chapter 53 or
whether the firm’s eligibility should be applicable FTA program requirements.
removed, as provided in § 26.87. (b) As provided in statute, you will
(3) If the Department determines not be subject to compliance actions or
that you erroneously declined to cer- sanctions for failing to carry out any
tify or removed the eligibility of the requirement of this part because you
firm, you must certify the firm, effec- have been prevented from complying
tive on the date of your receipt of the because a Federal court has issued a
318
final order in which the court found period for up to 30 days for good cause,
that the requirement is unconstitu- consistent with applicable statutes.
tional. (2) If you and the appropriate DOT of-
fice sign a conciliation agreement,
§ 26.103 What enforcement actions then the matter is regarded as closed
apply in FHWA and FTA programs? and you are regarded as being in com-
The provisions of this section apply pliance. The conciliation agreement
to enforcement actions under FHWA sets forth the measures you have taken
and FTA programs: or will take to ensure compliance.
(a) Noncompliance complaints. Any While a conciliation agreement is in ef-
person who believes that a recipient fect, you remain eligible for FHWA or
has failed to comply with its obliga- FTA financial assistance.
tions under this part may file a written (3) The concerned operating adminis-
complaint with the concerned oper- tration shall monitor your implemen-
ating administration’s Office of Civil tation of the conciliation agreement
Rights. If you want to file a complaint, and ensure that its terms are complied
you must do so no later than 180 days with. If you fail to carry out the terms
after the date of the alleged violation of a conciliation agreement, you are in
or the date on which you learned of a noncompliance.
continuing course of conduct in viola- (4) If you do not request conciliation,
tion of this part. In response to your or a conciliation agreement is not
written request, the Office of Civil signed within the time provided in
Rights may extend the time for filing paragraph (d)(1) of this section, then
in the interest of justice, specifying in enforcement proceedings begin.
writing the reason for so doing. The Of- (e) Enforcement actions. (1) Enforce-
fice of Civil Rights may protect the ment actions are taken as provided in
confidentiality of your identity as pro- this subpart.
vided in § 26.109(b). Complaints under (2) Applicable findings in enforce-
this part are limited to allegations of ment proceedings are binding on all
violation of the provisions of this part. DOT offices.
(b) Compliance reviews. The concerned
operating administration may review § 26.105 What enforcement actions
the recipient’s compliance with this apply in FAA programs?
part at any time, including reviews of (a) Compliance with all requirements
paperwork and on-site reviews, as ap- of this part by airport sponsors and
propriate. The Office of Civil Rights other recipients of FAA financial as-
may direct the operating administra- sistance is enforced through the proce-
tion to initiate a compliance review dures of Title 49 of the United States
based on complaints received. Code, including 49 U.S.C. 47106(d),
(c) Reasonable cause notice. If it ap- 47111(d), and 47122, and regulations im-
pears, from the investigation of a com- plementing them.
plaint or the results of a compliance (b) The provisions of § 26.103(b) and
review, that you, as a recipient, are in this section apply to enforcement ac-
noncompliance with this part, the ap- tions in FAA programs.
propriate DOT office promptly sends (c) Any person who knows of a viola-
you, return receipt requested, a writ- tion of this part by a recipient of FAA
ten notice advising you that there is funds may file a complaint under 14
reasonable cause to find you in non- CFR part 16 with the Federal Aviation
compliance. The notice states the rea- Administration Office of Chief Counsel.
sons for this finding and directs you to
reply within 30 days concerning wheth- § 26.107 What enforcement actions
er you wish to begin conciliation. apply to firms participating in the
(d) Conciliation. (1) If you request con- DBE program?
ciliation, the appropriate DOT office (a) If you are a firm that does not
shall pursue conciliation for at least 30, meet the eligibility criteria of subpart
but not more than 120, days from the D of this part and that attempts to par-
date of your request. The appropriate ticipate in a DOT-assisted program as a
DOT office may extend the conciliation DBE on the basis of false, fraudulent,
319
or deceitful statements or representa- make available to the public any infor-

tions or under circumstances indi- mation concerning the DBE program
cating a serious lack of business integ- release of which is not prohibited by
rity or honesty, the Department may Federal law.
initiate suspension or debarment pro- (2) Notwithstanding any provision of
ceedings against you under 49 CFR part Federal or state law, you must not re-
29. lease information that may be reason-
(b) If you are a firm that, in order to ably be construed as confidential busi-
meet DBE contract goals or other DBE ness information to any third party
program requirements, uses or at- without the written consent of the firm
tempts to use, on the basis of false, that submitted the information. This
fraudulent or deceitful statements or includes applications for DBE certifi-
representations or under circumstances cation and supporting documentation.
indicating a serious lack of business in- However, you must transmit this infor-
tegrity or honesty, another firm that mation to DOT in any certification ap-
does not meet the eligibility criteria of peal proceeding under § 26.89 in which
subpart D of this part, the Department the disadvantaged status of the indi-
may initiate suspension or debarment vidual is in question.
proceedings against you under 49 CFR (b) Confidentiality of information on
part 29. complainants. Notwithstanding the pro-
(c) In a suspension or debarment provisions of paragraph (a) of this section,
ceeding brought under paragraph (a) or the identity of complainants shall be
(b) of this section, the concerned oper- kept confidential, at their election. If
ating administration may consider the such confidentiality will hinder the in-
fact that a purported DBE has been vestigation, proceeding or hearing, or
certified by a recipient. Such certifi- result in a denial of appropriate admin-
cation does not preclude the Depart- istrative due process to other parties,
ment from determining that the pur- the complainant must be advised for
ported DBE, or another firm that has the purpose of waiving the privilege.
used or attempted to use it to meet Complainants are advised that, in some
DBE goals, should be suspended or circumstances, failure to waive the
debarred. privilege may result in the closure of
(d) The Department may take en- the investigation or dismissal of the
forcement action under 49 CFR Part 31, proceeding or hearing. FAA follows the
Program Fraud and Civil Remedies, procedures of 14 CFR part 16 with re-
against any participant in the DBE spect to confidentiality of information
program whose conduct is subject to in complaints.
such action under 49 CFR part 31. (c) Cooperation. All participants in
(e) The Department may refer to the the Department’s DBE program (in-
Department of Justice, for prosecution cluding, but not limited to, recipients,
under 18 U.S.C. 1001 or other applicable DBE firms and applicants for DBE cer-
provisions of law, any person who tification, complainants and appel-
makes a false or fraudulent statement lants, and contractors using DBE firms
in connection with participation of a to meet contract goals) are required to
DBE in any DOT-assisted program or cooperate fully and promptly with DOT
otherwise violates applicable Federal and recipient compliance reviews, cer-
statutes. tification reviews, investigations, and
other requests for information. Failure
§ 26.109 What are the rules governing to do so shall be a ground for appro-
information, confidentiality, co- priate action against the party in-
operation, and intimidation or re- volved (e.g., with respect to recipients,
taliation? a finding of noncompliance; with re-
(a) Availability of records. (1) In respect to DBE firms, denial of certifi-
sponding to requests for information cation or removal of eligibility and/or
concerning any aspect of the DBE pro- suspension and debarment; with re-
gram, the Department complies with spect to a complainant or appellant,
provisions of the Federal Freedom of dismissal of the complaint or appeal;
Information and Privacy Acts (5 U.S.C. with respect to a contractor which uses
552 and 552a). The Department may DBE firms to meet goals, findings of
320
non-responsibility for future contracts contract goal (i.e., obtain a specified amount
and/or suspension and debarment). of DBE participation) in order to be awarded
(d) Intimidation and retaliation. If you a contract, even though the bidder makes an
adequate good faith efforts showing. This
are a recipient, contractor, or any rule specifically prohibits you from ignoring
other participant in the program, you bona fide good faith efforts.
must not intimidate, threaten, coerce, IV. The following is a list of types of ac-
or discriminate against any individual tions which you should consider as part of
or firm for the purpose of interfering the bidder’s good faith efforts to obtain DBE
with any right or privilege secured by participation. It is not intended to be a man-
this part or because the individual or datory checklist, nor is it intended to be ex-
clusive or exhaustive. Other factors or types
firm has made a complaint, testified, of efforts may be relevant in appropriate
assisted, or participated in any manner cases.
in an investigation, proceeding, or A. Soliciting through all reasonable and
hearing under this part. If you violate available means (e.g. attendance at pre-bid
this prohibition, you are in noncompli- meetings, advertising and/or written notices)
ance with this part. the interest of all certified DBEs who have
the capability to perform the work of the
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR contract. The bidder must solicit this inter-
35556, June 16, 2003] est within sufficient time to allow the DBEs
to respond to the solicitation. The bidder
APPENDIX A TO PART 26—GUIDANCE must determine with certainty if the DBEs
CONCERNING GOOD FAITH EFFORTS are interested by taking appropriate steps to
follow up initial solicitations.
I. When, as a recipient, you establish a B. Selecting portions of the work to be per-
contract goal on a DOT-assisted contract, a formed by DBEs in order to increase the
bidder must, in order to be responsible and/ likelihood that the DBE goals will be
or responsive, make good faith efforts to achieved. This includes, where appropriate,
meet the goal. The bidder can meet this re- breaking out contract work items into eco-
quirement in either of two ways. First, the nomically feasible units to facilitate DBE
bidder can meet the goal, documenting com- participation, even when the prime con-
mitments for participation by DBE firms tractor might otherwise prefer to perform
sufficient for this purpose. Second, even if it these work items with its own forces.
doesn’t meet the goal, the bidder can docu- C. Providing interested DBEs with ade-
ment adequate good faith efforts. This means quate information about the plans, specifica-
that the bidder must show that it took all tions, and requirements of the contract in a
necessary and reasonable steps to achieve a timely manner to assist them in responding
DBE goal or other requirement of this part to a solicitation.
which, by their scope, intensity, and appro- D. (1) Negotiating in good faith with inter-
priateness to the objective, could reasonably ested DBEs. It is the bidder’s responsibility
be expected to obtain sufficient DBE partici- to make a portion of the work available to
pation, even if they were not fully success- DBE subcontractors and suppliers and to se-
ful. lect those portions of the work or material
II. In any situation in which you have es- needs consistent with the available DBE sub-
tablished a contract goal, part 26 requires contractors and suppliers, so as to facilitate
you to use the good faith efforts mechanism DBE participation. Evidence of such negotia-
of this part. As a recipient, it is up to you to tion includes the names, addresses, and tele-
make a fair and reasonable judgment wheth- phone numbers of DBEs that were consid-
er a bidder that did not meet the goal made ered; a description of the information pro-
adequate good faith efforts. It is important vided regarding the plans and specifications
for you to consider the quality, quantity, for the work selected for subcontracting; and
and intensity of the different kinds of efforts evidence as to why additional agreements
that the bidder has made. The efforts em- could not be reached for DBEs to perform the
ployed by the bidder should be those that work.
one could reasonably expect a bidder to take (2) A bidder using good business judgment
if the bidder were actively and aggressively would consider a number of factors in negoti-
trying to obtain DBE participation sufficient ating with subcontractors, including DBE
to meet the DBE contract goal. Mere pro subcontractors, and would take a firm’s
forma efforts are not good faith efforts to price and capabilities as well as contract
meet the DBE contract requirements. We goals into consideration. However, the fact
emphasize, however, that your determina- that there may be some additional costs in-
tion concerning the sufficiency of the firm’s volved in finding and using DBEs is not in
good faith efforts is a judgment call: meeting itself sufficient reason for a bidder’s failure
quantitative formulas is not required. to meet the contract DBE goal, as long as
III. The Department also strongly cautions such costs are reasonable. Also, the ability
you against requiring that a bidder meet a or desire of a prime contractor to perform
321
the work of a contract with its own organiza- H. Effectively using the services of avail-
tion does not relieve the bidder of the re- able minority/women community organiza-
sponsibility to make good faith efforts. tions; minority/women contractors’ groups;
Prime contractors are not, however, required local, state, and Federal minority/women
to accept higher quotes from DBEs if the business assistance offices; and other organi-
price difference is excessive or unreasonable. zations as allowed on a case-by-case basis to
E. Not rejecting DBEs as being unqualified provide assistance in the recruitment and
without sound reasons based on a thorough placement of DBEs.
investigation of their capabilities. The con- V. In determining whether a bidder has
tractor’s standing within its industry, mem-
made good faith efforts, you may take into
bership in specific groups, organizations, or
account the performance of other bidders in
associations and political or social affili-
meeting the contract. For example, when the
ations (for example union vs. non-union em-
ployee status) are not legitimate causes for apparent successful bidder fails to meet the
the rejection or non-solicitation of bids in contract goal, but others meet it, you may
the contractor’s efforts to meet the project reasonably raise the question of whether,
goal. with additional reasonable efforts, the appar-
F. Making efforts to assist interested DBEs ent successful bidder could have met the
in obtaining bonding, lines of credit, or in- goal. If the apparent successful bidder fails
surance as required by the recipient or con- to meet the goal, but meets or exceeds the
tractor. average DBE participation obtained by other
G. Making efforts to assist interested bidders, you may view this, in conjunction
DBEs in obtaining necessary equipment, sup- with other factors, as evidence of the appar-
plies, materials, or related assistance or ent successful bidder having made good faith
services. efforts.
322
APPENDIX B TO PART 26—UNIFORM REPORT OF DBE AWARDS OR COMMITMENTS AND

PAYMENTS FORM
323
ER16JN03.051</GPH>
Pt. 26, App. C 49 CFR Subtitle A (10–1–07 Edition)
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003]
APPENDIX C TO PART 26—DBE BUSINESS program, via the provision of training and
DEVELOPMENT PROGRAM GUIDELINES assistance from the recipient.
(A) Each firm that participates in a recipi-
The purpose of this program element is to ent’s business development program (BDP)
further the development of DBEs, including program is subject to a program term deter-
but not limited to assisting them to move mined by the recipient. The term should con-
into non-traditional areas of work and/or sist of two stages; a developmental stage and
compete in the marketplace outside the DBE a transitional stage.
324
ER16JN03.052</GPH>
Office of the Secretary of Transportation Pt. 26, App. C
(B) In order for a firm to remain eligible (1) The aggregate dollar value of contracts
for program participation, it must continue to be sought under the DBE program, reflect-
to meet all eligibility criteria contained in ing compliance with the business plan;
part 26. (2) The aggregate dollar value of contracts
(C) By no later than 6 months of program to be sought in areas other than traditional
entry, the participant should develop and areas of DBE participation;
submit to the recipient a comprehensive (3) The types of contract opportunities
business plan setting forth the participant’s being sought, based on the firm’s primary
business targets, objectives and goals. The line of business; and
participant will not be eligible for program (4) Such other information as may be re-
benefits until such business plan is sub- quested by the recipient to aid in providing
mitted and approved by the recipient. The effective business development assistance to
approved business plan will constitute the the participant.
participant’s short and long term goals and
(G) Program participation is divided into
the strategy for developmental growth to the
two stages; (1) a developmental stage and (2)
point of economic viability in non-tradi-
a transitional stage. The developmental
tional areas of work and/or work outside the
stage is designed to assist participants to
DBE program.
overcome their social and economic dis-
(D) The business plan should contain at
advantage by providing such assistance as
least the following:
may be necessary and appropriate to enable
(1) An analysis of market potential, com-
them to access relevant markets and
petitive environment and other business
strengthen their financial and managerial
analyses estimating the program partici-
skills. The transitional stage of program par-
pant’s prospects for profitable operation dur-
ticipation follows the developmental stage
ing the term of program participation and
after graduation from the program. and is designed to assist participants to
overcome, insofar as practical, their social
(2) An analysis of the firm’s strengths and
and economic disadvantage and to prepare
weaknesses, with particular attention paid
the participant for leaving the program.
to the means of correcting any financial,
managerial, technical, or labor conditions (H) The length of service in the program
which could impede the participant from re- term should not be a pre-set time frame for
ceiving contracts other than those in tradi- either the developmental or transitional
tional areas of DBE participation. stages but should be figured on the number
(3) Specific targets, objectives, and goals of years considered necessary in normal pro-
for the business development of the partici- gression of achieving the firm’s established
pant during the next two years, utilizing the goals and objectives. The setting of such
results of the analysis conducted pursuant to time could be factored on such items as, but
paragraphs (C) and (D)(1) of this appendix; not limited to, the number of contracts, ag-
(4) Estimates of contract awards from the gregate amount of the contract received,
DBE program and from other sources which years in business, growth potential, etc.
are needed to meet the objectives and goals (I) Beginning in the first year of the transi-
for the years covered by the business plan; tional stage of program participation, each
and participant should annually submit for in-
(5) Such other information as the recipient clusion in its business plan a transition man-
may require. agement plan outlining specific steps to pro-
mote profitable business operations in areas
(E) Each participant should annually re-
view its currently approved business plan other than traditional areas of DBE partici-
with the recipient and modify the plan as pation after graduation from the program.
may be appropriate to account for any The transition management plan should be
changes in the firm’s structure and redefined submitted to the recipient at the same time
needs. The currently approved plan should be other modifications are submitted pursuant
considered the applicable plan for all pro- to the annual review under paragraph (E) of
gram purposes until the recipient approves this section. The plan should set forth the
in writing a modified plan. The recipient same information as required under para-
should establish an anniversary date for re- graph (F) of steps the participant will take
view of the participant’s business plan and to continue its business development after
contract forecasts. the expiration of its program term.
(F) Each participant should annually fore- (J) When a participant is recognized as suc-
cast in writing its need for contract awards cessfully completing the program by sub-
for the next program year and the suc- stantially achieving the targets, objectives
ceeding program year during the review of and goals set forth in its program term, and
its business plan conducted under paragraph has demonstrated the ability to compete in
(E) of this appendix. Such forecast should be the marketplace, its further participation
included in the participant’s business plan. within the program may be determined by
The forecast should include: the recipient.
325
Pt. 26, App. D 49 CFR Subtitle A (10–1–07 Edition)
(K) In determining whether a concern has (B)(1) Any mentor-protégé relationship
substantially achieved the goals and objec- shall be based on a written development
tives of its business plan, the following fac- plan, approved by the recipient, which clear-
tors, among others, should be considered by ly sets forth the objectives of the parties and
the recipient: their respective roles, the duration of the ar-
(1) Profitability; rangement and the services and resources to
(2) Sales, including improved ratio of non- be provided by the mentor to the protégé.
traditional contracts to traditional-type The formal mentor-protégé agreement may
contracts; set a fee schedule to cover the direct and in-
(3) Net worth, financial ratios, working direct cost for such services rendered by the
capital, capitalization, access to credit and mentor for specific training and assistance
capital; to the protégé through the life of the agree-
(4) Ability to obtain bonding; ment. Services provided by the mentor may
(5) A positive comparison of the DBE’s be reimbursable under the FTA, FHWA, and
business and financial profile with profiles of FAA programs.
non-DBE businesses in the same area or (2) To be eligible for reimbursement, the
similar business category; and mentor’s services provided and associated
(6) Good management capacity and capa- costs must be directly attributable and prop-
bility. erly allowable to specific individual con-
(L) Upon determination by the recipient tracts. The recipient may establish a line
that the participant should be graduated item for the mentor to quote the portion of
from the developmental program, the recipi- the fee schedule expected to be provided dur-
ent should notify the participant in writing ing the life of the contract. The amount
of its intent to graduate the firm in a letter claimed shall be verified by the recipient and
of notification. The letter of notification paid on an incremental basis representing
should set forth findings, based on the facts, the time the protégé is working on the con-
for every material issue relating to the basis tract. The total individual contract figures
of the program graduation with specific rea-
accumulated over the life of the agreement
sons for each finding. The letter of notifica-
shall not exceed the amount stipulated in
tion should also provide the participant 45
the original mentor/protégé agreement.
days from the date of service of the letter to
(C) DBEs involved in a mentor-protégé
submit in writing information that would ex-
agreement must be independent business en-
plain why the proposed basis of graduation is
tities which meet the requirements for cer-
not warranted.
tification as defined in subpart D of this
(M) Participation of a DBE firm in the pro-
part. A protégé firm must be certified before
gram may be discontinued by the recipient
it begins participation in a mentor-protégé
prior to expiration of the firm’s program
arrangement. If the recipient chooses to rec-
term for good cause due to the failure of the
ognize mentor/protégé agreements, it should
firm to engage in business practices that will
establish formal general program guidelines.
promote its competitiveness within a reason-
These guidelines must be submitted to the
able period of time as evidenced by, among
operating administration for approval prior
other indicators, a pattern of inadequate per-
to the recipient executing an individual
formance or unjustified delinquent perform-
contractor/ subcontractor mentor-protégé
ance. Also, the recipient can discontinue the
agreement.
participation of a firm that does not actively
pursue and bid on contracts, and a firm that,
without justification, regularly fails to re-
APPENDIX E TO PART 26—INDIVIDUAL
spond to solicitations in the type of work it DETERMINATIONS OF SOCIAL AND
is qualified for and in the geographical areas ECONOMIC DISADVANTAGE
where it has indicated availability under its
The following guidance is adapted, with
approved business plan. The recipient should
minor modifications, from SBA regulations
take such action if over a 2-year period a
concerning social and economic disadvan-
DBE firm exhibits such a pattern.
tage determinations (see 13 CFR 124.103(c)
APPENDIX D TO PART 26—MENTOR- and 124.104).
PROTÉGÉ PROGRAM GUIDELINES SOCIAL DISADVANTAGE
(A) The purpose of this program element is I. Socially disadvantaged individuals are
to further the development of DBEs, includ- those who have been subjected to racial or
ing but not limited to assisting them to ethnic prejudice or cultural bias within
move into non-traditional areas of work and/ American society because of their identities
or compete in the marketplace outside the as members of groups and without regard to
DBE program, via the provision of training their individual qualities. Social disadvan-
and assistance from other firms. To operate tage must stem from circumstances beyond
a mentor-protégé program, a recipient must their control. Evidence of individual social
obtain the approval of the concerned oper- disadvantage must include the following ele-
ating administration. ments:
326
Office of the Secretary of Transportation Pt. 26, App. E
(A) At least one objective distinguishing III. Under the laws concerning social and
feature that has contributed to social dis- economic disadvantage, people with disabil-
advantage, such as race, ethnic origin, gen- ities are not a group presumed to be dis-
der, disability, long-term residence in an en- advantaged. Nevertheless, recipients should
vironment isolated from the mainstream of look carefully at individual showings of dis-
American society, or other similar causes advantage by individuals with disabilities,
not common to individuals who are not so- making a case-by-case judgment about
cially disadvantaged; whether such an individual meets the cri-
(B) Personal experiences of substantial and teria of this appendix. As public entities sub-
chronic social disadvantage in American so- ject to Title II of the ADA, recipients must
ciety, not in other countries; and also ensure their DBE programs are acces-
(C) Negative impact on entry into or ad- sible to individuals with disabilities. For ex-
vancement in the business world because of ample, physical barriers or the lack of appli-
the disadvantage. Recipients will consider cation and information materials in acces-
any relevant evidence in assessing this ele- sible formats cannot be permitted to thwart
ment. In every case, however, recipients will the access of potential applicants to the cer-
consider education, employment and busi- tification process or other services made
ness history, where applicable, to see if the available to DBEs and applicants.
totality of circumstances shows disadvan-
tage in entering into or advancing in the ECONOMIC DISADVANTAGE
business world.
(1) Education. Recipients will consider such (A) General. Economically disadvantaged
factors as denial of equal access to institu- individuals are socially disadvantaged indi-
tions of higher education and vocational viduals whose ability to compete in the free
training, exclusion from social and profes- enterprise system has been impaired due to
sional association with students or teachers, diminished capital and credit opportunities
denial of educational honors rightfully as compared to others in the same or similar
earned, and social patterns or pressures line of business who are not socially dis-
which discouraged the individual from pur- advantaged.
suing a professional or business education. (B) Submission of narrative and financial in-
(2) Employment. Recipients will consider formation.
such factors as unequal treatment in hiring, (1) Each individual claiming economic dis-
promotions and other aspects of professional advantage must describe the conditions
advancement, pay and fringe benefits, and which are the basis for the claim in a nar-
other terms and conditions of employment; rative statement, and must submit personal
retaliatory or discriminatory behavior by an financial information.
employer or labor union; and social patterns (2) [Reserved]
or pressures which have channeled the indi- (C) Factors to be considered. In considering
vidual into non-professional or non-business diminished capital and credit opportunities,
fields. recipients will examine factors relating to
(3) Business history. The recipient will con- the personal financial condition of any indi-
sider such factors as unequal access to credit vidual claiming disadvantaged status, in-
or capital, acquisition of credit or capital cluding personal income for the past two
under commercially unfavorable cir- years (including bonuses and the value of
cumstances, unequal treatment in opportu- company stock given in lieu of cash), per-
nities for government contracts or other
sonal net worth, and the fair market value of
work, unequal treatment by potential cus-
all assets, whether encumbered or not. Re-
tomers and business associates, and exclu-
cipients will also consider the financial con-
sion from business or professional organiza-
dition of the applicant compared to the fi-
tions.
nancial profiles of small businesses in the
II. With respect to paragraph I.(A) of this
same primary industry classification, or, if
appendix, the Department notes that people
not available, in similar lines of business,
with disabilities have disproportionately low
incomes and high rates of unemployment. which are not owned and controlled by so-
Many physical and attitudinal barriers re- cially and economically disadvantaged indi-
main to their full participation in education, viduals in evaluating the individual’s access
employment, and business opportunities to credit and capital. The financial profiles
available to the general public. The Ameri- that recipients will compare include total
cans with Disabilities Act (ADA) was passed assets, net sales, pre-tax profit, sales/work-
in recognition of the discrimination faced by ing capital ratio, and net worth.
people with disabilities. It is plausible that (D) Transfers within two years.
many individuals with disabilities—espe- (1) Except as set forth in paragraph (D)(2)
cially persons with severe disabilities (e.g., of this appendix, recipients will attribute to
significant mobility, vision, or hearing im- an individual claiming disadvantaged status
pairments)—may be socially and economi- any assets which that individual has trans-
cally disadvantaged. ferred to an immediate family member, or to
327
Pt. 26, App. E 49 CFR Subtitle A (10–1–07 Edition)
a trust, a beneficiary of which is an imme- with the customary recognition of special
diate family member, for less than fair mar- occasions, such as birthdays, graduations,
ket value, within two years prior to a con- anniversaries, and retirements.
cern’s application for participation in the (3) In determining an individual’s access to
DBE program, unless the individual claiming capital and credit, recipients may consider
disadvantaged status can demonstrate that any assets that the individual transferred
the transfer is to or on behalf of an imme- within such two-year period described by
diate family member for that individual’s paragraph (D)(1) of this appendix that are
education, medical expenses, or some other not considered in evaluating the individual’s
form of essential support. assets and net worth (e.g., transfers to char-
(2) Recipients will not attribute to an indi- ities).
vidual claiming disadvantaged status any as-
sets transferred by that individual to an im- [64 FR 5126, Feb. 2, 1999, as amended at 68 FR
mediate family member that are consistent 35559, June 16, 2003]
328
Office of the Secretary of Transportation Pt. 26, App. F
APPENDIX F TO PART 26—UNIFORM CERTIFICATION APPLICATION FORM

329
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Pt. 26, App. F 49 CFR Subtitle A (10–1–07 Edition)
330
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ER16JN03.055</GPH>
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ER16JN03.056</GPH>
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[68 FR 35559, June 16, 2003]

342
ER16JN03.066</GPH>
PART 27—NONDISCRIMINATION to discrimination under any program

ON THE BASIS OF DISABILITY IN or activity receiving Federal financial
PROGRAMS OR ACTIVITIES RE- assistance.
CEIVING FEDERAL FINANCIAL § 27.3 Applicability.
ASSISTANCE
(a) This part applies to each recipient
Subpart A—General of Federal financial assistance from
the Department of Transportation and
Sec. to each program or activity that re-
27.1 Purpose. ceives such assistance.
27.3 Applicability.
27.5 Definitions. (b) Design, construction, or alter-
27.7 Discrimination prohibited. ation of buildings or other fixed facili-
27.9 Assurance required. ties by public entities subject to part
27.11 Remedial action, voluntary action, 37 of this title shall be in conformance
and compliance planning. with appendix A to part 37 of this title.
27.13 Designation of responsible employee
All other entities subject to section 504
and adoption of grievance procedures.
27.15 Notice. shall design, construct or alter a build-
27.17 Effect of State or local law. ing, or other fixed facilities shall be in
27.19 Compliance with Americans with Dis- conformance with either appendix A to
abilities Act requirements and FTA pol- part 37 of this title or the Uniform Fed-
icy. eral Accessibility Standards, 41 CFR
part 101–19 subpart 101–19.6, appendix A.
Subpart B—Accessibility Requirements in
Specific Operating Administration Pro- [44 FR 31468, May 31, 1979, as amended at 56
grams: Airports, Railroads, and High- FR 45621, Sept. 6, 1991; 68 FR 51390, Aug. 26,
ways 2003]
27.71 Airport facilities. § 27.5 Definitions.

27.72 Boarding assistance for aircraft.
27.75 Federal Highway Administration— As used in this part:
highways. Act means the Rehabilitation Act of
27.77 Recipients of Essential Air Service 1973, Public Law 93–112, as amended.
subsidies. Applicant means one who submits an
Subpart C—Enforcement application, request, or plan to be ap-
proved by a Departmental official or by
27.121 Compliance information. a primary recipient as a condition to
27.123 Conduct of investigations. eligibility for Federal financial assist-
27.125 Compliance procedure.
ance, and application means such an ap-
27.127 Hearings.
27.129 Decisions and notices. plication, request, or plan.
Commercial service airport means an
AUTHORITY: Sec. 504 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 794); sec. 16
airport that is defined as a commercial
(a) and (d) of the Federal Transit Act of 1964, service airport for purposes of the Fed-
as amended (49 U.S.C. 5310 (a) and (f); sec. eral Aviation Administration’s Airport
165(b) of the Federal-Aid Highway Act of Improvement Program and that en-
1973, as amended (23 U.S.C. 142 nt.). planes annually 2500 or more pas-
SOURCE: 44 FR 3l468, May 31, 1979, unless sengers and receives scheduled pas-
otherwise noted. senger service of aircraft.
Department means the Department of
Subpart A—General Transportation.
Discrimination means denying handi-
§ 27.1 Purpose. capped persons the opportunity to par-
The purpose of this part is to carry ticipate in or benefit from any program
out the intent of section 504 of the Re- or activity receiving Federal financial
habilitation Act of 1973 (29 U.S.C. 794) assistance.
as amended, to the end that no other- Facility means all or any portion of
wise qualified individual with a dis- buildings, structures, vehicles, equip-
ability in the United States shall, sole- ment, roads, walks, parking lots, or
ly by reason of his or her disability, be other real or personal property or in-
excluded from the participation in, be terest in such property.

denied the benefits of, or be subjected
343
Federal financial assistance means any mental or physical impairment that

grant, loan, contract (other than a pro- substantially limits one or more major
curement contract or a contract of in- life activities.
surance or guaranty), or any other ar- (d) Is regarded as having an impairment
rangement by which the Department means:
provides or otherwise makes available (1) Has a physical or mental impair-
assistance in the form of: ment that does not substantially limit
(a) Funds; major life activities but that is treated
(b) Services of Federal personnel; or by a recipient as constituting such a
(c) Real or personal property or any limitation;
interest in, or use of such property, in- (2) Has a physical or mental impair-
cluding: ment that substantially limits major
(1) Transfers or leases of such prop- life activity only as a result of the atti-
erty for less than fair market value or tudes of others toward such an impair-
for reduced consideration; and ment; or
(2) Proceeds from a subsequent trans- (3) Has none of the impairments set
fer or lease of such property if the Fed- forth in paragraph (1) of this definition,
eral share of its fair market value is but is treated by a recipient as having
not returned to the Federal Govern- such an impairment.
ment. Head of Operating Administration
Handicapped person means (1) any means the head of an operating admin-
person who (a) has a physical or mental istration within the Department (U.S.
impairment that substantially limits Coast Guard, Federal Highway Admin-
one or more major life activities, (b) istration, Federal Aviation Adminis-
has a record of such an impairment, or tration, Federal Railroad Administra-
(c) is regarded as having such an im- tion, National Highway Traffic Safety
pairment. (2) As used in this definition, Administration, Federal Transit Ad-
the phrase: ministration, and Research and Special
(a) Physical or mental impairment Programs Administration) providing
means (i) any physiological disorder or Federal financial assistance to the re-
condition, cosmetic disfigurement, or cipient.
anatomical loss affecting one or more Primary recipient means any recipient
of the following body systems: neuro- that is authorized or required to extend
logical; musculoskeletal; special sense Federal financial assistance from the
organs; respiratory, including speech Department to another recipient.
organs; cardiovascular, reproductive; Program or activity means all of the
digestive; genito-urinary; hemic and operations of any entity described in
lymphatic; skin; and endocrine; or (ii) paragraphs (1) through (4) of this defi-
any mental or psychological disorder, nition, any part of which is extended
such as mental retardation, organic Federal financial assistance:
brain syndrome, emotional or mental (1)(i) A department, agency, special
illness, and specific learning disabil- purpose district, or other instrumen-
ities. The term physical or mental im- tality of a State or of a local govern-
pairment includes, but is not limited to, ment; or
such diseases and conditions as ortho- (ii) The entity of such State or local
pedic, visual, speech, and hearing im- government that distributes such as-
pairments; cerebral palsy; epilepsy; sistance and each such department or
muscular dystrophy; multiple sclerosis; agency (and each other State or local
cancer; heart disease; mental retarda- government entity) to which the as-
tion; emotional illness; drug addiction; sistance is extended, in the case of as-
and alcoholism. sistance to a State or local govern-
(b) Major life activities means func- ment;
tions such as caring for one’s self, per- (2)(i) A college, university, or other
forming manual tasks, walking, seeing, postsecondary institution, or a public
hearing, speaking, breathing, learning, system of higher education; or
and working. (ii) A local educational agency (as de-
(c) Has a record of such an impairment fined in 20 U.S.C. 7801), system of voca-
means has a history of, or has been tional education, or other school sys-
classified, or misclassified, as having a tem;
344
(3)(i) An entire corporation, partner- Special service system means a trans-

ship, or other private organization, or portation system specifically designed
an entire sole proprietorship— to serve the needs of persons who, by
(A) If assistance is extended to such reason of disability, are physically un-
corporation, partnership, private orga- able to use bus systems designed for
nization, or sole proprietorship as a use by the general public. Special serv-
whole; or ice is characterized by the use of vehi-
(B) Which is principally engaged in cles smaller than a standard transit
the business of providing education, bus which are usable by handicapped
health care, housing, social services, or persons, demand-responsive service,
parks and recreation; or point of origin to point of destination
(ii) The entire plant or other com- service, and flexible routing and sched-
parable, geographically separate facil- uling.
ity to which Federal financial assist-
ance is extended, in the case of any [44 FR 31468, May 31, 1979, as amended by
Amdt. 1, 46 FR 37492, July 20, 1981; Amdt. 27–
other corporation, partnership, private
3, 51 FR 19017, May 23, 1986; 56 FR 45621, Sept.
organization, or sole proprietorship; or 6, 1991; 61 FR 32354, June 24, 1996; 61 FR 56424,
(4) Any other entity which is estab- Nov. 1, 1996; 68 FR 51390, Aug. 26, 2003]
lished by two or more of the entities
described in paragraph (1), (2), or (3) of § 27.7 Discrimination prohibited.
this definition.
(a) General. No qualified handicapped
Qualified handicapped person means:
person shall, solely by reason of his
(1) With respect to employment, a
disability, be excluded from participa-
handicapped person who, with reason-
tion in, be denied the benefits of, or
able accommodation and within nor-
otherwise be subjected to discrimina-
mal safety requirements, can perform
tion under any program or activity
the essential functions of the job in
that receives Federal financial assist-
question, but the term does not include
ance administered by the Department
any individual who is an alcoholic or
of Transportation.
drug abuser whose current use of alco-
hol or drugs prevents such person from (b) Discriminatory actions prohibited.
performing the duties of the job in (1) A recipient, in providing any aid,
question or whose employment, by rea- benefit, or service, may not, directly or
son of such current alcohol or drug through contractual, licensing, or
abuse, would constitute a direct threat other arrangements, on the basis of
to property or the safety of others; and disability:
(2) With respect to other services, a (i) Deny a qualified handicapped per-
handicapped person who meets the es- son the opportunity to participate in
sential eligibility requirements for the or benefit from the aid, benefit, or
receipt of such services. service;
Recipient means any State, territory, (ii) Afford a qualified handicapped
possession, the District of Columbia, or person an opportunity to participate in
Puerto Rico, or any political subdivi- or benefit from the aid, benefit, or
sion thereof, or instrumentality there- service that is not substantially equal
of, any public or private agency, insti- to that afforded persons who are not
tution, organization, or other entity, handicapped;
or any individual in any State, terri- (iii) Provide a qualified handicapped
tory, possession, the District of Colum- person with an aid, benefit, or service
bia, or Puerto Rico, to whom Federal that is not as effective in affording
financial assistance from the Depart- equal opportunity to obtain the same
ment is extended directly or through result, to gain the same benefit, or to
another recipient, including any suc- reach the same level of achievement as
cessor, assignee, or transferee thereof, persons who are not handicapped;
but such term does not include any ul- (iv) Provide different or separate aid,
timate beneficiary. benefits, or services to handicapped
Secretary means the Secretary of persons or to any class of handicapped
Transportation. persons unless such action is necessary
Section 504 means section 504 of the to provide qualified handicapped per-
Act. sons with aid, benefits or services that
345
are as effective as those provided to (i) That have the effect of excluding
persons who are not handicapped; handicapped persons from, denying
(v) Aid or perpetuate discrimination them the benefits of, or otherwise sub-
against a qualified handicapped person jecting them to discrimination under
by providing financial or other assist- any program or activity that receives
ance to an agency, organization, or Federal financial assistance, or
person that discriminates on the basis (ii) That have the purpose or effect of
of disability in providing any aid, ben- defeating or substantially impairing
efit, or service to beneficiaries of the the accomplishment of the objectives
recipient’s program or activity; of the program or activity with respect
(vi) Deny a qualified handicapped to handicapped persons.
person the opportunity to participate (6) As used in this section, the aid
benefit, or service provided under a
in conferences, in planning or advising
program or activity receiving Federal
recipients, applicants or would-be ap-
financial assistance includes any aid,
plicants, or
benefit, or service provided in or
(vii) Otherwise limit a qualified through a facility that has been con-
handicapped person in the enjoyment structed, expanded, altered, leased or
of any right, privilege, advantage, or rented, or otherwise acquired, in whole
opportunity enjoyed by others receiv- or in part, with Federal financial as-
ing an aid, benefit, or service. sistance.
(2) For purposes of this part, aids, (c) Communications. Recipients shall
benefits, and services, to be equally ef- take appropriate steps to ensure that
fective, are not required to produce the communications with their applicants,
identical result or level of achievement employees, and beneficiaries are avail-
for handicapped and nonhandicapped able to persons with impaired vision
persons, but must afford handicapped and hearing.
persons equal opportunity to obtain (d) Aid, benefits, or services limited by
the same result, to gain the same ben- Federal law. For aid, benefits, or serv-
efit, or to reach the same level of ices authorized by Federal statute or
achievement, in the most integrated executive order that are designed espe-
setting that is reasonably achievable. cially for the handicapped, or for a par-
(3) Even if separate or different aid, ticular class of handicapped persons,
benefits, or services are available to the exclusion of nonhandicapped or
handicapped persons, a recipient may other classes of handicapped persons is
not deny a qualified handicapped per- not prohibited by this part.
son the opportunity to participate in
[44 FR 3l468, May 31, 1979, as amended at 68
the programs or activities that are not FR 51390, Aug. 26, 2003]
separate or different.
(4) A recipient may not, directly or § 27.9 Assurance required.
through contractual or other arrange- (a) General. Each application for Fed-
ments, utilize criteria or methods of eral financial assistance to which this
administration: part applies, and each application to
(i) That have the effect of subjecting provide a facility, shall, as a condition
qualified handicapped persons to dis- to approval or extension of any Federal
crimination on the basis of disability, financial assistance pursuant to the ap-
(ii) That have the purpose or effect of plication, contain, or be accompanied
defeating or substantially reducing the by, written assurance that the program
likelihood that handicapped persons or activity will be conducted or the fa-
can benefit by the objectives of the re- cility operated in compliance with all
cipient’s program or activity, or the requirements imposed by or pursu-
(iii) That yield or perpetuate dis- ant to this part. An applicant may in-
crimination against another recipient corporate these assurances by ref-
if both recipients are subject to com- erence in subsequent applications to
mon administrative control or are the Department.
agencies of the same State. (b) Future effect of assurances. Recipi-
(5) In determining the site or loca- ents of Federal financial assistance,
tion of a facility, an applicant or a re- and transferees of property obtained by
cipient may not make selections: a recipient with the participation of
346
Federal financial assistance, are bound qualified handicapped person has been
by the recipient’s assurance under the excluded from participation in, denied
following circumstances: the benefits of, or otherwise subjected
(1) When Federal financial assistance to discrimination under, any program
is provided in the form of a conveyance or activity in violation of this part, the
of real property or an interest in real recipient shall take such remedial ac-
property from the Department of tion as the responsible Departmental
Transportation to a recipient, the in- official deems necessary to overcome
strument of conveyance shall include a
the effects of the violation.
convenant running with the land bind-
ing the recipient and subsequent trans- (2) Where a recipient is found to have
ferees to comply with the requirements violated this part, and where another
of this part for so long as the property recipient exercises control over the re-
is used for the purpose for which the cipient that has violated this part, the
Federal financial assistance was pro- responsible Departmental official,
vided or for a similar purpose. where appropriate, may require either
(2) When Federal financial assistance or both recipients to take remedial ac-
is used by a recipient to purchase or tion.
improve real property, the assurance (3) The responsible Departmental of-
provided by the recipient shall obligate ficial may, where necessary to over-
the recipient to comply with the re- come the effects of a violation of this
quirements of this part and require any part, require a recipient to take reme-
subsequent transferee of the property, dial action:
who is using the property for the pur- (i) With respect to handicapped per-
pose for which the Federal financial as- sons who are no longer participants in
sistance was provided, to agree in writ- the recipient’s program or activity but
ing to comply with the requirements of
who were participants in the program
this part. The obligations of the recipi-
or activity when such discrimination
ent and transferees under this part
shall continue in effect for as long as occurred, and
the property is used for the purpose for (ii) With respect to handicapped per-
which Federal financial assistance was sons who would have been participants
provided or for a similar purpose. in the program or activity had the dis-
(3) When Federal financial assistance crimination not occurred.
is provided to the recipient in the form (b) Voluntary action. A recipient may
of, or is used by the recipient to obtain, take steps, in addition to any action
personal property, the assurance pro- that is required by this part, to assure
vided by the recipient shall obligate the full participation in the recipient’s
the recipient to comply with the re- program or activity by qualified handi-
quirements of this part for the period capped persons.
it retains ownership or possession of (c) Compliance planning. (1) A recipi-
the property or the property is used by ent shall, within 90 days from the effec-
a transferee for purposes directly re- tive date of this part, designate and
lated to the operations of the recipient. forward to the head of any operating
(4) When Federal financial assistance administration providing financial as-
is used by a recipient for purposes
sistance, with a copy to the responsible
other than to obtain property, the as-
Departmental official the names, ad-
surance provided shall obligate the re-
dresses, and telephone numbers of the
cipient to comply with the require-
ments of this part for the period during persons responsible for evaluating the
which the Federal financial assistance recipient’s compliance with this part.
is extended to the program or activity. (2) A recipient shall, within 180 days
from the effective date of this part,
[44 FR 3l468, May 31, 1979, as amended at 68 after consultation at each step in para-
FR 51390, Aug. 26, 2003]
graphs (c)(2) (i)–(iii) of this section
§ 27.11 Remedial action, voluntary ac- with interested persons, including
tion and compliance planning. handicapped persons and organizations
(a) Remedial action. (1) If the respon- representing the handicapped:
sible Departmental official finds that a
347
(i) Evaluate its current policies and (b) Adoption of complaint procedures. A
practices for implementing these regu- recipient that employs fifteen or more
lations, and notify the head of the op- persons shall, within 180 days, adopt
erating administration of the comple- and file with the head of the operating
tion of this evaluation; administration procedures that incor-
(ii) Identify shortcomings in compli- porate appropriate due process stand-
ance and describe the methods used to ards and provide for the prompt and eq-
remedy them; uitable resolution of complaints alleg-
(iii) Begin to modify, with official ap- ing any action prohibited by this part.
proval of recipient’s management, any
policies or practices that do not meet § 27.15 Notice.
the requirements of this part according (a) A recipient shall take appropriate
to a schedule or sequence that includes initial and continuing steps to notify
milestones or measures of achieve- participants, beneficiaries, applicants,
ment. These modifications shall be
and employees, including those with
completed within one year from the ef-
impaired vision or hearing, and unions
fective date of this part;
or professional organizations holding
(iv) Take appropriate remedial steps
collective bargaining or professional
to eliminate the effects of any dis-
agreements with the recipient, that it
crimination that resulted from pre-
does not discriminate on the basis of
vious policies and practices; and
(v) Establish a system for periodi- disability. The notification shall state,
cally reviewing and updating the eval- where appropriate, that the recipient
uation. does not discriminate in admission or
(3) A recipient shall, for at least access to, or treatment or employment
three years following completion of the in, its programs or activities. The noti-
evaluation required under paragraph fication shall also include an identi-
(c)(2) of this section, maintain on file, fication of the responsible employee
make available for public inspection, designated pursuant to § 27.13(a). A re-
and furnish upon request to the head of cipient shall make the initial notifica-
the operating administration: tion required by this section within 90
(i) A list of the interested persons days of the effective date of this part.
consulted; Methods of initial and continuing noti-
(ii) A description of areas examined fication may include the posting of no-
and any problems indentified; and tices, publication in newspapers and
(iii) A description of any modifica- magazines, placement of notices in re-
tions made and of any remedial steps cipients’ publications and distribution
taken. of memoranda or other written com-
munications.
[44 FR 3l468, May 31, 1979, as amended at 68
FR 51390, Aug. 26, 2003]
(b) If a recipient publishes or uses re-
cruitment materials or publications
§ 27.13 Designation of responsible em- containing general information that it
ployee and adoption of grievance makes available to participants, bene-
procedures. ficiaries, applicants, or employees, it
(a) Designation of responsible employee. shall include in those materials or pub-
Each recipient that employs fifteen or lications a statement of the policy de-
more persons shall, within 90 days of scribed in paragraph (a) of this section.
the effective date of this regulation, A recipient may meet the requirement
forward to the head of the operating of this paragraph either by including
administration that provides financial appropriate inserts in existing mate-
assistance to the recipient, with a copy rials and publications or by revising
to the responsible Departmental offi- and reprinting the materials and publi-
cial, the name, address, and telephone cations. In either case, the addition or
number of at least one person des- revision must be specially noted.
ignated to coordinate its efforts to
comply with this part. Each such re- § 27.17 Effect of State or local law.
cipient shall inform the head of the op- The obligation to comply with this
erating administration of any subse- part is not obviated or affected by any
quent change. State or local law.
348
§ 27.19 Compliance with Americans Subpart B—Accessibility Require-

with Disabilities Act requirements ments in Specific Operating
and FTA policy.
Administration Programs: Air-
(a) Recipients subject to this part ports, Railroads, and High-
(whether public or private entities as ways
defined in 49 CFR part 37) shall comply
with all applicable requirements of the § 27.71 Airport facilities.
Americans with Disabilities Act (ADA) (a) This section applies to all ter-
of 1990 (42 U.S.C. 12101–12213) including minal facilities and services owned,
the Department’s ADA regulations (49 leased, or operated on any basis by a
CFR parts 37 and 38), the regulations of recipient of DOT financial assistance
the Department of Justice imple- at a commercial service airport, in-
menting titles II and III of the ADA (28 cluding parking and ground transpor-
CFR parts 35 and 36), and the regula- tation facilities.
tions of the Equal Employment Oppor- (b) Airport operators shall ensure
tunity Commission (EEOC) imple- that the terminal facilities and serv-
menting title I of the ADA (29 CFR ices subject to this section shall be
part 1630). Compliance with the EEOC readily accessible to and usable by in-
title I regulations is required as a con- dividuals with disabilities, including
dition of compliance with section 504 individuals who use wheelchairs. Air-
for DOT recipients even for organiza- port operators shall be deemed to com-
tions which, because they have fewer ply with this section 504 obligation if
than 25 or 15 employees, would not be they meet requirements applying to
subject to the EEOC regulation in its state and local government programs
or activities and facilities under De-
own right. Compliance with all these
partment of Justice (DOJ) regulations
regulations is a condition of receiving
implementing Title II of the Americans
Federal financial assistance from the
with Disabilities Act (ADA).
Department of Transportation. Any re-
(c) The airport shall ensure that
cipient not in compliance with this re- there is an accessible path between the
quirement shall be subject to enforce- gate and the area from which aircraft
ment action under subpart F of this are boarded.
part. (d) Systems of inter-terminal trans-
(b) Consistent with FTA policy, any portation, including, but not limited
recipient of Federal financial assist- to, shuttle vehicles and people movers,
ance from the Federal Transit Admin- shall comply with applicable require-
istration whose solicitation was made ments of the Department of Transpor-
before August 26, 1990, and is for one or tation’s ADA rules.
more inaccessible vehicles, shall pro- (e) The Americans with Disabilities
vide written notice to the Secretary Act Accessibility Guidelines
(e.g., in the case of a solicitation made (ADAAGs), including section 10.4 con-
in the past under which the recipient cerning airport facilities, shall be the
can order additional new buses after standard for accessibility under this
the effective date of this section). The section.
Secretary shall review each case indi- (f) Contracts or leases between car-
vidually, and determine whether the riers and airport operators concerning
Department will continue to partici- the use of airport facilities shall set
pate in the Federal grant, consistent forth the respective responsibilities of
with the provisions in the grant agree- the parties for the provision of acces-
sible facilities and services to individ-
ment between the Department and the
uals with disabilities as required by
recipient.
this part and applicable ADA rules of
[55 FR 40763, Oct. 4, 1990, as amended at 56 FR the Department of Transportation and
45621, Sept. 6, 1991; 61 FR 32354, June 24, 1996] Department of Justice for airport oper-
ators and applicable Air Carrier Access
Act rules (49 CFR part 382) for carriers.
(g) If an airport operator who re-
ceives Federal financial assistance for
349
an existing airport facility has not al- and complete implementation of the
ready done so, the recipient shall subagreement.
mit a transition plan meeting the re- (3) Boarding assistance under the
quirements of § 27.65(d) of this part to agreement is not required in the fol-
the FAA no later than March 3, 1997. lowing situations:
[61 FR 56424, Nov. 1, 1996, as amended at 68 (i) Access to aircraft with a capacity
FR 51391, Aug. 26, 2003] of fewer than 19 or more than 30 seats;
(ii) Access to float planes;
§ 27.72 Boarding assistance for air- (iii) Access to the following 19-seat
craft. capacity aircraft models: the Fairchild
(a) Paragraphs (b)–(e) of this section Metro, the Jetstream 31, and the Beech
apply to airports with 10,000 or more 1900 (C and D models);
annual enplanements. (iv) Access to any other 19-seat air-
(b) Airports shall, in cooperation craft model determined by the Depart-
with carriers serving the airports, pro- ment of Transportation to be unsuit-
vide boarding assistance to individuals able for boarding assistance by lift,
with disabilities using mechanical ramp or other suitable device on the
lifts, ramps, or other devices that do basis of a significant risk of serious
not require employees to lift or carry damage to the aircraft or the presence
passengers up stairs. Paragraph (c) of of internal barriers that preclude pas-
this section applies to aircraft with a sengers who use a boarding or aisle
seating capacity of 19 through 30 pas- chair to reach a non-exit row seat.
sengers. Paragraph (d) of this section (4) When boarding assistance is not
applies to aircraft with a seating ca- required to be provided under para-
pacity of 31 or more passengers. graph (c)(3) of this section, or cannot
(c)(1) Each airport operator shall ne- be provided as required by paragraphs
gotiate in good faith with each carrier (b) and (c) of this section (e.g., because
serving the airport concerning the ac- of mechanical problems with a lift),
quisition and use of boarding assist- boarding assistance shall be provided
ance devices for aircraft with a seating by any available means to which the
capacity of 19 through 30 passengers. passenger consents, except hand-car-
The airport operator and the carrier(s) rying as defined in 14 CFR 382.39(a)(2).
shall, by no later than September 2, (5) The agreement shall ensure that
1997, sign a written agreement allo- all lifts and other accessibility equip-
cating responsibility for meeting the ment are maintained in proper working
boarding assistance requirements of condition.
this section between or among the par- (d)(1) Each airport operator shall ne-
ties. The agreement shall be made gotiate in good faith with each carrier
available, on request, to representa- serving the airport concerning the ac-
tives of the Department of Transpor- quisition and use of boarding assist-
tation. ance devices for aircraft with a seating
(2) The agreement shall provide that capacity of 31 or more passengers
all actions necessary to ensure acces- where level entry boarding is not oth-
sible boarding for passengers with dis- erwise available. The airport operator
abilities are completed as soon as prac- and the carrier(s) shall, by no later
ticable, but no later than December 2, than March 4, 2002 sign a written agree-
1998, at large and medium commercial ment allocating responsibility for
service hub airports (those with meeting the boarding assistance re-
1,200,000 or more annual enplanements); quirements of this section between or
December 2, 1999, for small commercial among the parties. The agreement
service hub airports (those with be- shall be made available, on request, to
tween 250,000 and 1,199,999 annual representatives of the Department of
enplanements); or December 2, 2000, for Transportation.
non-hub commercial service primary (2) The agreement shall provide that
airports (those with between 10,000 and all actions necessary to ensure acces-
249,999 annual enplanements). All air sible boarding for passengers with dis-
carriers and airport operators involved abilities are completed as soon as prac-
are jointly responsible for the timely ticable, but no later than December 4,
350
2002. All air carriers and airport opera- (3) Pedestrian over-passes, under-passes
tors involved are jointly responsible for and ramps. Pedestrian over-passes,
the timely and complete implementa- under-passes and ramps, constructed
tion of the agreement. with Federal financial assistance, shall
(3) Level-entry boarding assistance be accessible to handicapped persons,
under the agreement is not required including having gradients no steeper
with respect to float planes or with re- than 10 percent, unless:
spect to any widebody aircraft deter- (i) Alternate safe means are provided
mined by the Department of Transpor- to enable mobility-limited persons to
tation to be unsuitable for boarding as- cross the roadway at that location; or
sistance by lift, ramp, or other device (ii) It would be infeasible for mobil-
on the basis that no existing boarding ity-limited persons to reach the over-
assistance device on the market will passes, under-passes or ramps because
accommodate the aircraft without a
of unusual topographical or architec-
significant risk of serious damage to
tural obstacles unrelated to the feder-
the aircraft or injury to passengers or
ally assisted facility.
employees.
(4) When level-entry boarding assist- (b) Existing facilities—Rest area facili-
ance is not required to be provided ties. Rest area facilities on Interstate
under paragraph (d)(3) of this section, highways shall be made accessible to
or cannot be provided as required by handicapped persons, including wheel-
paragraphs (b) and (d) of this section chair users, within a three-year period
(e.g., because of mechanical problems after the effective date of this part.
with a lift), boarding assistance shall Other rest area facilities shall be made
be provided by any available means to accessible when Federal financial as-
which the passenger consents, except sistance is used to improve the rest
hand-carrying as defined in 14 CFR area, or when the roadway adjacent to
382.39(a)(2). or in the near vicinity of the rest area
(5) The agreement shall ensure that is constructed, reconstructed or other-
all lifts and other accessibility equip- wise altered with Federal financial as-
ment are maintained in proper working sistance.
condition. [44 FR 31468, May 31, 1979, as amended by
(e) In the event that airport per- Amdt. 27–3, 51 FR 19017, May 23, 1986. Redes-
sonnel are involved in providing board- ignated at 56 FR 45621, Sept. 6, 1991]
ing assistance, the airport shall ensure
that they are trained to proficiency in § 27.77 Recipients of Essential Air
the use of the boarding assistance Service subsidies.
equipment used at the airport and ap- Any air carrier receiving Federal fi-
propriate boarding assistance proce- nancial assistance from the Depart-
dures that safeguard the safety and ment of Transportation under the Es-
dignity of passengers. sential Air Service Program shall, as a
[66 FR 22115, May 3, 2001] condition of receiving such assistance,
comply with applicable requirements
§ 27.75 Federal Highway Administra- of this part and applicable section 504
tion—highways. and ACAA rules of the Department of
(a) New facilities—(1) Highway rest Transportation.
area facilities. All such facilities that [61 FR 56425, Nov. 1, 1996, as amended at 68
will be constructed with Federal finan- FR 51391, Aug. 26, 2003]
cial assistance shall be designed and
constructed in accordance with the ac-
cessibility standards referenced in Subpart C—Enforcement
§ 27.3(b) of this part.
(2) Curb cuts. All pedestrian cross- SOURCE: 44 FR 31468, May 31, 1979, unless
walks constructed with Federal finan- otherwise noted. Redesignated at 56 FR 45621,
cial assistance shall have curb cuts or Sept. 6, 1991.
ramps to accommodate persons in
wheelchairs, pursuant to section 228 of § 27.121 Compliance information.
the Federal-Aid Highway Act of 1973 (23 (a) Cooperation and assistance. The re-
U.S.C. 402(b)(1)(F)). sponsible Departmental official, to the
351
fullest extent practicable, seeks the co- the responsible Departmental official
operation of recipients in securing finds necessary to apprise them of the
compliance with this part and provides protections against discrimination pro-
assistance and guidance to recipients vided by the Act and this part.
to help them comply with this part.
[44 FR 31468, May 31, 1979. Redesignated at 56
(b) Compliance reports. Each recipient
FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26,
shall keep on file for one year all com- 2003]
plaints of noncompliance received. A
record of all such complaints, which § 27.123 Conduct of investigations.
may be in summary form, shall be kept
for five years. Each recipient shall (a) Periodic compliance reviews. The re-
keep such other records and submit to sponsible Departmental official or his/
the responsible Departmental official her designee, from time to time, re-
or his/her designee timely, complete, views the practices of recipients to de-
and accurate compliance reports at termine whether they are complying
such times, and in such form, and con- with this part.
taining such information as the respon- (b) Complaints. Any person who be-
sible Department official may pre- lieves himself/herself or any specific
scribe. In the case in which a primary class of individuals to be harmed by
recipient extends Federal financial as- failure to comply with this part may,
sistance to any other recipient, the personally or through a representative,
other recipient shall also submit com- file a written complaint with the re-
pliance reports to the primary recipi- sponsible Departmental official. A
ent so as to enable the primary recipi- Complaint must be filed not later than
ent to prepare its report. 180 days from the date of the alleged
(c) Access to sources of information. discrimination, unless the time for fil-
Each recipient shall permit access by ing is extended by the responsible De-
the responsible Departmental official partmental official or his/her designee.
or his/her designee during normal busi- (c) Investigations. The responsible De-
ness hours to books, records, accounts, partmental official or his/her designee
and other sources of information, and makes a prompt investigation when-
to facilities that are pertinent to com- ever a compliance review, report, com-
pliance with this part. Where required plaint, or any other information indi-
information is in the exclusive posses- cates a possible failure to comply with
sion of another agency or person who this part. The investigation includes,
fails or refuses to furnish the informa- where appropriate, a review of the per-
tion, the recipient shall so certify in tinent practices and policies of the re-
its report and describe the efforts made cipient, and the circumstances under
to obtain the information. Consider- which the possible noncompliance with
ations of privacy or confidentiality do this part occurred.
not bar the Department from evalu- (d) Resolution of matters. (1) If, after
ating or seeking to enforce compliance an investigation pursuant to paragraph
with this part. Information of a con- (c) of this section, the responsible De-
fidential nature obtained in connection partmental official finds reasonable
with compliance evaluation or enforce- cause to believe that there is a failure
ment is not disclosed by the Depart- to comply with this part, the respon-
ment, except in formal enforcement sible Departmental official will inform
proceedings, where necessary, or where the recipient. The matter is resolved
otherwise required by law. by informal means whenever possible.
(d) Information to beneficiaries and If the responsible Departmental official
participants. Each recipient shall make determines that the matter cannot be
available to participants, beneficiaries, resolved by informal means, action is
and other interested persons such in- taken as provided in § 27.125.
formation regarding the provisions of (2) If an investigation does not war-
this regulation and its application to rant action pursuant to paragraph
the program or activity for which the (d)(1) of this section, the responsible
recipient receives Federal financial as- Departmental official or his/her des-
sistance, and make such information ignee so informs the recipient and the
available to them in such manner, as complainant, if any, in writing.
352
(e) Intimidating and retaliatory acts with a requirement imposed by or pur-

prohibited. No employee or contractor suant to this part.
of a recipient shall intimidate, threat- (2) Any action to suspend, terminate,
en, coerce, or discriminate against any or refuse to grant or to continue Fed-
individual for the purpose of inter- eral financial assistance is limited to
fering with any right or privilege se- the particular recipient who has failed
cured by section 504 of the Act or this to comply, and is limited in its effect
part, or because the individual has to the particular program or activity,
made a complaint, testified, assisted, or part thereof, in which noncompli-
or participated in any manner in an in- ance has been found.
vestigation, hearing, or proceeding, (c) Other means authorized by law. No
under this part. The identity of com- other action is taken until:
plainants is kept confidential at their (1) The responsible Departmental of-
election during the conduct of any in- ficial has determined that compliance
vestigation, hearing or proceeding cannot be secured by voluntary means;
under this part. However, when such (2) The recipient or other person has
confidentiality is likely to hinder the been notified by the responsible De-
investigation, the complainant will be partmental official of its failure to
comply and of the proposed action;
advised for the purpose of waiving the
(3) The expiration of at least 10 days
privilege.
from the mailing of such notice to the
§ 27.125 Compliance procedure. recipient or other person. During this
period, additional efforts are made to
(a) General. If there is reasonable persuade the recipient or other person
cause for the responsible Departmental to comply with the regulations and to
official to believe that there is a fail- take such corrective action as may be
ure to comply with any provision of appropriate.
this part that cannot be corrected by
[44 FR 31468, May 31, 1979. Redesignated at 56
informal means, the responsible De- FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26,
partmental official may recommend 2003]
suspension or termination of, or refusal
to grant or to continue Federal finan- § 27.127 Hearings.
cial assistance, or take any other steps (a) Opportunity for hearing. Whenever
authorized by law. Such other steps an opportunity for a hearing is re-
may include, but are not limited to: quired by § 27.125(b), reasonable notice
(1) A referral to the Department of is given by the responsible Depart-
Justice with a recommendation that mental official by registered or cer-
appropriate proceedings be brought to tified mail, return receipt requested, to
enforce any rights of the United States the affected applicant or recipient.
under any law of the United States (in- This notice advises the applicant or re-
cluding other titles of the Act), or any cipient of the action proposed to be
assurance or other contractural undertaken, the specific provision under
taking; and which the proposed action is to be
(2) Any applicable proceeding under taken, and the matters of fact or law
State or local law. asserted as the basis for this action,
(b) Refusal of Federal financial assist- and either:
ance. (1) No order suspending, termi- (1) Fixes a date not less than 20 days
nating, or refusing to grant or continue after the date of such notice within
Federal financial assistance becomes which the applicant or recipient may
effective until: request a hearing; or
(i) The responsible Departmental of- (2) Advises the applicant or recipient
ficial has advised the applicant or re- that the matter in question has been
cipient of its failure to comply and has set for hearing at a stated place and
determined that compliance cannot be time.
secured by voluntary means; and The time and place shall be reasonable
(ii) There has been an express finding and subject to change for cause. The
by the Secretary on the record, after complainant, if any, also is advised of
opportunity for hearing, of a failure by the time and place of the hearing. An
the applicant or recipient to comply applicant or recipient may waive a
353
hearing and submit written informa- pear and testify as a witness on the
tion and argument for the record. The government’s behalf, attends at a time
failure of an applicant or recipient to and place scheduled for a hearing pro-
request a hearing constitutes a waiver vided for by this part may be reim-
of the right to a hearing under section bursed for his/her travel and actual ex-
504 of the Act and § 27.125(b), and con- penses in an amount not to exceed the
sent to the making of a decision on the amount payable under the standardized
basis of such information as may be travel regulations applicable to a gov-
part of the record. ernment employee traveling on official
(b) If the applicant or recipient business.
waives its opportunity for a hearing, (2) Technical rules of evidence do not
the responsible Departmental official apply to hearings conducted pursuant
shall notify the applicant or recipient to this part, but rules or principles de-
that it has the opportunity to submit signed to assure production of the most
written information and argument for credible evidence available and to sub-
the record. The responsible Depart- ject testimony to cross examination
mental official may also place written are applied where reasonably necessary
information and argument into the by the Administrative Law Judge con-
record. ducting the hearing. The Administra-
(c) Time and place of hearing. Hearings tive Law Judge may exclude irrelevant,
are held at the office of the Depart- immaterial, or unduly repetitious evi-
ment in Washington, DC, at a time dence. All documents and other evi-
fixed by the responsible Departmental dence offered or taken for the record
official unless he/she determines that are open to examination by the parties
the convenience of the applicant or re- and opportunity is given to refute facts
cipient or of the Department requires and arguments advanced by either side.
that another place be selected. Hear- A transcript is made of the oral evi-
ings are held before an Administrative dence except to the extent the sub-
Law Judge designated in accordance stance thereof is stipulated for the
with 5 U.S.C. 3105 and 3344 (section 11 of record. All decisions are based on the
the Administrative Procedure Act). hearing record and written findings
(d) Right to counsel. In all proceedings shall be made.
under this section, the applicant or re- (f) Consolidation or joint hearings. In
cipient and the responsible Depart- cases in which the same or related
mental official have the right to be facts are asserted to constitute non-
represented by counsel. compliance with this regulation with
(e) Procedures, evidence and record. (1) respect to two or more Federal stat-
The hearing, decision, and any admin- utes, authorities, or other means by
istrative review thereof are conducted which Federal financial assistance is
in conformity with sections 554 extended and to which this part ap-
through 557 of title 5 of the United plies, or noncompliance with this part
States Code, and in accordance with and the regulations of one or more
such rules of procedure as are proper other Federal departments or agencies
(and not inconsistent with this section) issued under section 504 of the Act, the
relating to the conduct of the hearing, responsible Departmental official may,
giving notice subsequent to those pro- in agreement with such other depart-
vided for in paragraph (a) of this sec- ments or agencies, where applicable,
tion, taking testimony, exhibits, argu- provide for consolidated or joint hear-
ments and briefs, requests for findings, ings. Final decisions in such cases, in-
and other related matters. The respon- sofar as this regulation is concerned,
sible Departmental official and the ap- are made in accordance with § 27.129.
plicant or recipient are entitled to in- [44 FR 31468, May 31, 1979. Redesignated at 56
troduce all relevant evidence on the FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26,
issues as stated in the notice for hear- 2003]
ing or as determined by the officer con-
ducting the hearing. Any person (other § 27.129 Decisions and notices.
than a government employee consid- (a) Decisions by Administrative Law
ered to be on official business) who, Judge. After the hearing, the Adminis-
having been invited or requested to ap- trative Law Judge certifies the entire
354
record including his recommended find- (2) Any applicant or recipient ad-
ings and proposed decision to the Sec- versely affected by an order entered
retary for a final decision. A copy of pursuant to paragraph (e) of this sec-
the certification is mailed to the appli- tion may, at any time, request the re-
cant or recipient and to the complain- sponsible Departmental official to re-
ant, if any. The responsible Depart- store its eligibility, to receive Federal
mental official and the applicant or re- financial assistance. Any request must
cipient may submit written arguments be supported by information showing
to the Secretary concerning the Ad- that the applicant or recipient has met
ministrative Law Judge’s rec- the requirements of paragraph (f)(1) of
ommended findings and proposed deci- this section. If the responsible Depart-
sion. mental official determines that those
(b) Final decision by the Secretary. requirements have been satisfied, he/
When the record is certified to the Sec- she may restore such eligibility, sub-
retary by the Administrative Law ject to the approval of the Secretary.
Judge, the Secretary reviews the (3) If the responsible Departmental
record and accepts, rejects, or modifies official denies any such request, the ap-
the Administrative Law Judge’s rec- plicant or recipient may submit a re-
ommended findings and proposed deci- quest, in writing, for a hearing speci-
sion, stating the reasons therefor. fying why it believes the responsible
(c) Decisions if hearing is waived. Departmental official should restore it
Whenever a hearing pursuant to to full eligibility. It is thereupon given
§ 27.125(b) is waived, the Secretary a prompt hearing, with a decision on
makes his/her final decision on the the record. The applicant or recipient
record, stating the reasons therefor. is restored to eligibility if it dem-
onstrates to the satisfaction of the
(d) Rulings required. Each decision of
Secretary at the hearing that it satis-
the Administrative Law Judge or the
fied the requirements of paragraph
Secretary contains a ruling on each
(f)(1) of this section.
finding or conclusion presented and
specifies any failures to comply with (4) The hearing procedures of
this part. § 27.127(b) through (c) and paragraphs
(a) through (d) of this section apply to
(e) Content of orders. The final deci-
hearings held under paragraph (f)(3) of
sion may provide for suspension or ter-
this section.
mination, or refusal to grant or con-
(5) While proceedings under this para-
tinue Federal financial assistance, in
graph are pending, the sanctions im-
whole or in part, to which this first
posed by the order issued under para-
regulation applies. The decision may
graph (e) of this section shall remain in
contain such terms, conditions, and
effect.
other provisions as are consistent with
and will effectuate the purposes of the [44 FR 31468, May 31, 1979. Redesignated at 56
Act and this part, including provisions FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26,
designed to assure that no Federal fi- 2003]
nancial assistance to which this regu-
lation applies will thereafter be ex- PART 28—ENFORCEMENT OF NON-
tended unless and until the recipient DISCRIMINATION ON THE BASIS
corrects its noncompliance and satis- OF HANDICAP IN PROGRAMS
fies the Secretary that it will fully OR ACTIVITIES CONDUCTED BY
comply with this part. THE DEPARTMENT OF TRANSPOR-
(f) Subsequent proceedings. (1) An ap- TATION
plicant or recipient adversely affected
by an order issued under paragraph (e)
Sec.
of this section is restored to full eligi- 28.101 Purpose.
bility to receive Federal financial as- 28.102 Application.
sistance if it satisfies the terms and 28.103 Definitions.
conditions of that order or if it brings 28.104–28.109 [Reserved]
itself into compliance with this part 28.110 Self-evaluation.
and provides reasonable assurance that 28.111 Notice.
it will fully comply with this part. 28.112–28.129 [Reserved]
355
28.130 General prohibition against discrimi- similar services and devices. Auxiliary
nation. aids useful for persons with impaired
28.131 Illegal use of drugs. hearing include telephone handset am-
28.132–28.139 [Reserved]
plifiers, telephones compatible with
28.140 Employment.
28.141–28.148 [Reserved] hearing aids, telecommunication de-
28.149 Program accessibility: Discrimina- vices for deaf persons (TDD’s), inter-
tion prohibited. preters, notetakers, written materials,
28.150 Program accessibility: Existing fa- and other similar services and devices.
cilities. Complete complaint means a written
28.151 Program accessibility: New construc- statement that contains the complain-
tion and alterations.
ant’s name and address and describes
28.152–28.159 [Reserved]
28.160 Communications. the Department’s alleged discrimina-
28.161–28.169 [Reserved] tory actions in sufficient detail to in-
28.170 Compliance procedures. form the Department of the nature and
28.171–28.999 [Reserved] date of the alleged violation of section
AUTHORITY: 29 U.S.C. 794 504. It shall be signed by the complain-
ant or by someone authorized to do so
SOURCE: 56 FR 37296, Aug. 6, 1991, unless on his or her behalf. Complaints filed
otherwise noted.
on behalf of classes or third parties
§ 28.101 Purpose. shall describe or identify (by name, if
possible) the alleged victims of dis-
The purpose of this part is to carry crimination.
out section 119 of the Rehabilitation, Current illegal use of drugs means ille-
Comprehensive Services, and Develop- gal use of drugs that occurred recently
mental Disabilities Amendments of enough to justify a reasonable belief
1978, which amended section 504 of the that a person’s drug use is current or
Rehabilitation Act of 1973 to prohibit that continuing use is a real and ongo-
discrimination on the basis of handicap ing problem.
in programs or activities conducted by Drug means a controlled substance,
Executive agencies, including this De- as defined in schedules I through V of
partment, or the United States Postal section 202 of the Controlled Sub-
Service. 49 CFR part 27 implements stances Act (21 U.S.C. 812).
section 504 in the Department’s finan-
Department or DOT means the U.S.
cial assistance programs.
Department of Transportation, includ-
§ 28.102 Application. ing the Office of the Secretary and all
operating administrations.
This part applies to all programs or Departmental Element (or ‘‘DOT ele-
activities conducted by the Depart- ment’’) means any one of the following
ment except for programs and activi- organizations within the Department:
ties conducted outside the United
(a) Office of the Secretary (OST).
States that do not involve individuals
with handicaps in the United States. (b) United States Coast Guard
(USCG).
§ 28.103 Definitions. (c) Federal Aviation Administration
(FAA).
For purposes of this part, the term—
Assistant Attorney General means the (d) Federal Highway Administration
Assistant Attorney General, Civil (FHWA).
Rights Division, United States Depart- (e) Federal Railroad Administration
ment of Justice. (FRA).
Auxiliary aids means services or de- (f) National Highway Traffic Safety
vices that enable persons with im- Administration (NHTSA).
paired sensory, manual, or speaking (g) Federal Transit Administration
skills to have an equal opportunity to (FTA).
participate in, and enjoy the benefits (h) Research and Special Programs
of, programs or activities conducted by Administration (RSPA).
the Department. For example, auxil- (i) Maritime Administration
iary aids useful for persons with im- (MARAD).
paired vision include readers, Brailled (j) St. Lawrence Seaway Develop-
materials, audio recordings, and other ment Corporation (SLSDC).
356
Facility means all or any portion of (4) Is regarded as having an impairment

buildings, structures, equipment, means—
roads, walks, parking lots, rolling (i) Has a physical or mental impair-
stock or other conveyances, or other ment that does not substantially limit
real or personal property. major life activities but is treated by
Illegal use of drugs means the use of the Department as constituting such a
one or more drugs, the possession or limitation;
distribution of which is unlawful under (ii) Has a physical or mental impair-
the Controlled Substances Act (21 ment that substantially limits major
U.S.C. 812) The term ‘‘illegal use of life activities only as a result of the at-
drugs’’ does not include the use of a titudes of others toward such impair-
drug taken under supervision by a li- ment; or
censed health care professional, or (iii) Has none of the impairments de-
other uses authorized by the Controlled fined in paragraph (1) of this definition
Substances Act or other provisions of but is treated by the Department as
Federal law. having such an impairment.
Individual with handicaps means any Qualified individual with handicaps
person who has a physical or mental means—
impairment that substantially limits (1) With respect to education services
one or more major life activities, has a provided by the U.S. Merchant Marine
record of such an impairment, or is re- Academy or the U.S. Coast Guard
garded as having such an impairment. Academy, an individual with handicaps
who meets the essential eligibility re-
As used in this definition, the phrase:
quirements for participation in and re-
(1) Physical or mental impairment— ceipt of such services, including the
(i) Includes any physiological dis- physical standards applicable to the
order or condition, cosmetic disfigure- U.S. Naval Reserve or the U.S. Coast
ment, or anatomical loss affecting one Guard.
or more of the following body systems: (2) With respect to any other Depart-
Neurological; muscular; skeletal; spe- ment program or activity under which
cial sense organs; respiratory, includ- a person is required to perform services
ing speech organs; cardiovascular; re- or to achieve a level of accomplish-
productive; digestive; genitourinary; ment, an individual with handicaps
hemic and lymphatic; skin; and endo- who meets the essential eligibility re-
crine; quirements and who can achieve the
(ii) Includes any mental or psycho- purpose of the program or activity
logical disorder, such as mental retar- without modifications in the program
dation, organic brain syndrome, emo- or activity that the Department can
tional or mental illness, and specific demonstrate would result in a funda-
learning disabilities; and mental alteration in its nature. The es-
(iii) Includes, but is not limited to, sential eligibility requirements include
such diseases or conditions as ortho- the ability to participate without en-
pedic, visual, speech, and hearing im- dangering the safety of the individual
pairments, cerebral palsy, epilepsy, or others.
muscular dystrophy, multiple sclerosis, (3) With respect to any other pro-
cancer, heart disease, diabetes, mental gram or activity, an individual with
retardation, emotional illness, drug ad- handicaps who meets the essential eli-
diction, and alcoholism. gibility requirements for participation
(2) Major life activities includes func- in, or receipt of benefits from, that pro-
tions such as caring for one’s self, per- gram or activity and
forming manual tasks, walking, seeing, (4) Qualified handicapped person as
hearing, speaking, breathing, learning, that term is defined for purposes of em-
and working. ployment in 29 CFR 1613.702(f), which is
(3) Has a record of such an impairment made applicable to this part by § 28.140.
means has a history of, or has been Section 504 means section 504 of the
misclassified as having, a mental or Rehabilitation Act of 1973 (Pub. L. 93–
physical impairment that substantially 112, 87 Stat. 394 (29 U.S.C. 794)), as
limits one or more major life activi- amended by the Rehabilitation Act
ties. Amendments of 1974 (Pub. L. 93–516, 88
357
Stat. 1617), the Rehabilitation, Com- ested persons such information regard-
prehensive Services, and Develop- ing the provisions of this part and its
mental Disabilities Amendments of applicability to the programs or activi-
1978 (Pub. L. 95–602, 92 Stat. 2955); the ties conducted by the Department, and
Rehabilitation Act Amendments of 1986 make such information available to
(Pub. L. 99–506, 100 Stat. 1810); the Civil them in such manner as the Depart-
Rights Restoration Act of 1987 (Pub. L. ment finds necessary to apprise such
100–259, 102 Stat. 28), and Handicapped persons of the protections against dis-
Program Technical Amendments Act of
crimination assured them by section
1988 (Pub. L. 100–630, 102 Stat. 3312). As
504 and this regulation.
used in this part, section 504 applies
only to programs or activities con- §§ 28.112–28.129 [Reserved]
ducted by Executive agencies and not
to federally assisted programs. § 28.130 General prohibition against
[56 FR 37296, Aug. 6, 1991, as amended at 61 discrimination.
FR 32354, June 24, 1996] (a) No qualified individual with
§§ 28.104–28.109 [Reserved] handicaps shall, on the basis of handi-
cap, be excluded from participation in,
§ 28.110 Self-evaluation. be denied the benefits of, or otherwise
(a) The Department shall, by one be subjected to discrimination under
year of the effective date of this part, any program or activity conducted by
evaluate its current policies and prac- the Department.
tices, and effects thereof, that do not (b)(1) The Department, in providing
or may not meet the requirements of any aid, benefit, or service, may not,
this part, and, to the extent modifica- directly or through contractual, licens-
tion of any such policies and practices ing, or other arrangement, on the basis
is required, the Department shall proof handicap—
ceed to make the necessary modifica- (i) Deny a qualified individual with
tions. handicaps the opportunity to partici-
(b) The Department shall provide an pate in or benefit from the aid, benefit,
opportunity to interested persons, in- or service;
cluding individuals with handicaps, (ii) Afford a qualified individual with
agency employees with handicaps, and handicaps an opportunity to partici-
organizations representing individuals pate in or benefit from the aid, benefit,
with handicaps, to participate in the
or service that is not equal to that af-
self-evaluation process by submitting
forded others;
comments (both oral and written).
(c) The Department shall, until at (iii) Provide a qualified individual
least three years following completion with handicaps with an aid, benefit, or
of the evaluation required under para- service that is not as effective in af-
graph (a) of this section, or until such fording equal opportunity to obtain the
time as all modifications identified by same result, to gain the same benefit,
the self-evaluation to be necessary to or to reach the same level of achieve-
comply with section 504 have been comment as that provided to others;
pleted, whichever occurs later, main- (iv) Provide different or separate aid,
tain on file and make available for pub- benefits, or services to individuals with
lic inspection— handicaps or to any class of individuals
(1) A description of areas examined, with handicaps than is provided to oth-
regulations and nonregulatory criteria ers unless such action is necessary to
reviewed, and any problems identified; provide qualified individuals with
and handicaps with aid, benefits, or serv-
(2) A description of any modifications ices that are as effective as those pro-
made. vided to others;
§ 28.111 Notice. (v) Deny a qualified individual with
handicaps the opportunity to partici-
The Department shall make avail-
pate as a member of planning or advi-
able to employees, applicants, partici-
sory boards; or
pants, beneficiaries, and other inter-
358
(vi) Otherwise limit a qualified indi- dividual with handicaps, to the extent
vidual with handicaps in the enjoy- necessary to ensure the safety of that
ment of any right, privilege, advan- person or the safety of others.
tage, or opportunity enjoyed by others (c) The exclusion of individuals with-
receiving the aid, benefit, or service. out handicaps from the benefits of a
(2) The Department may not deny a program limited by Federal statute or
qualified individual with handicaps the Executive Order to individuals with
opportunity to participate in programs handicaps or the exclusion of a specific
or activities that are not separate or class of individuals with handicaps
different, despite the existence of per- from a program limited by Federal
missibly separate or different programs statute or Executive Order to a dif-
or activities. ferent class of individuals with handi-
(3) The Department may not, directly caps is not prohibited by this part.
or through contractual or other ar- (d) The Department shall administer
rangements, utilize criteria or methods programs and activities in the most in-
of administration the purpose or effect tegrated setting appropriate to the
of which would— needs of qualified individuals with
(i) Subject qualified individuals with handicaps.
handicaps to discrimination on the
basis of handicap; or § 28.131 Illegal use of drugs.
(ii) Defeat or substantially impair ac- (a) General. (1) Except as provided in
complishment of the objectives of a paragraph (b) of this section, this part
program or activity with respect to in- does not prohibit discrimination
dividuals with handicaps. against an individual based on that in-
(4) The Department may not, in de- dividual’s current illegal use of drugs.
termining the site or location of a fa- (2) The agency shall not discriminate
cility, make selections the purpose or on the basis of illegal use of drugs
effect of which would— against an individual who is not engag-
(i) Exclude individuals with handi- ing in current illegal use of drugs and
caps from, deny them the benefits of, who—
or otherwise subject them to discrimi- (i) Has successfully completed a su-
nation under any program or activity pervised drug rehabilitation program
conducted by the Department; or or has otherwise been rehabilitated
(ii) Defeat or substantially impair successfully;
the accomplishment of the objectives (ii) Is participating in a supervised
of a program or activity with respect rehabilitation program; or
to individuals with handicaps. (iii) Is erroneously regarded as engag-
(5) The Department, in the selection ing in such use.
of procurement contractors, may not (b) Health and rehabilitation services.
use criteria that subject qualified indi- The agency shall not deny health serv-
viduals with handicaps to discrimina- ices or services provided under titles I,
tion on the basis of handicap. II, and III of the Rehabilitation Act to
(6) The Department may not admin- an individual on the basis of that indi-
ister a licensing or certification pro- vidual’s current illegal use of drugs, if
gram in a manner that subjects quali- the individual is otherwise entitled to
fied individuals with handicaps to dis- such services.
crimination on the basis of handicap, (c) Drug testing. (1) This part does not
nor may the Department establish re- prohibit the agency from adopting or
quirements for the programs or activi- administering reasonable policies or
ties of licensees or certified entities procedures, including but not limited
that subject qualified individuals with to drug testing, designed to ensure that
handicaps to discrimination on the an individual who formerly engaged in
basis of handicap. However, the pro- the illegal use of drugs is not engaging
grams or activities of entities that are in current illegal use of drugs.
licensed or certified by the Department (2) Nothing in paragraph (c) of this
are not, themselves, covered by this section shall be construed to encour-
part. The Department may limit the age, prohibit, restrict, or authorize the
programs or activities of a licensee or conduct of testing for the illegal use of
certificate holder, who is a qualified in- drugs.
359
§§ 28.132–28.139 [Reserved] den of proving that compliance with

§ 28.150(a) would result in such alter-
§ 28.140 Employment. ation or burdens. The decision that
(a) No qualified individual with compliance would result in such alter-
handicaps shall, on the basis of handi- ation or burdens must be made by the
cap, be subjected to discrimination in Secretary or his or her designee, after
employment under any program or ac- considering all resources available for
tivity conducted by the Department. use in the funding and operation of the
(b) The definitions, requirements, program or activity, and must be ac-
and procedures of section 501 of the Re- companied by a written statement of
habilitation Act of 1973 (29 U.S.C. 791), the reasons for reaching that conclu-
as established by the Equal Employ- sion. If an action would result in such
ment Opportunity Commission in 29 an alteration or such burdens, the De-
CFR part 1613, shall apply to employ- partment shall take any other action
ment in federally conducted programs that would not result in such an alter-
or activities. The provisions of this sec- ation or such burdens but would never-
tion do not apply to military personnel theless ensure that individuals with
of the U.S. Coast Guard. handicaps receive the benefits and
services of the program or activity.
§§ 28.141–28.148 [Reserved]
(b) Methods. The Department may
§ 28.149 Program accessibility: Dis- comply with the requirements of this
crimination prohibited. section through such means as redesign
of equipment, reassignment of services
Except as otherwise provided in
to accessible buildings, assignment of
§ 28.150, no qualified individual with
aides to beneficiaries, home visits, de-
handicaps shall, because the Depart-
ment’s facilities are inaccessible to or livery of services at alternate acces-
unusable by individuals with handi- sible sites, alteration of existing facili-
caps, be denied the benefits of, be ex- ties and construction of new facilities,
cluded from participation in, or other- use of accessible rolling stock, or any
wise be subjected to discrimination other methods that result in making
under any program or activity con- its programs or activities readily ac-
ducted by the Department. cessible to and usable by individuals
with handicaps. The Department is not
§ 28.150 Program accessibility: Exist- required to make structural changes in
ing facilities. existing facilities where other methods
(a) General. The Department shall op- are effective in achieving compliance
erate each program or activity so that with this section. The Department, in
the program or activity, when viewed making alterations to existing build-
in its entirety, is readily accessible to ings, shall meet accessibility require-
and usable by individuals with handi- ments to the extent compelled by the
caps. This paragraph does not— Architectural Barriers Act of 1968, as
(1) Necessarily require the Depart- amended (42 U.S.C. 4151–4157), and any
ment to make each of its existing fa- regulations implementing it. In choos-
cilities accessible to and usable by in- ing among available methods for meet-
dividuals with handicaps; ing the requirements of this section,
(2) [Reserved] the Department shall give priority to
(3) Require the Department to take those methods that offer programs and
any action that it can demonstrate activities to qualified individuals with
would result in a fundamental alter- handicaps in the most integrated set-
ation in the nature of a program or acting appropriate.
tivity or in undue financial and admin- (c) Time period for compliance. The De-
istrative burdens. In those cir- partment shall comply with the obliga-
cumstances where personnel of a DOT tions established under this section
element believe that the proposed ac- within sixty days of the effective date
tion would fundamentally alter the of this part except that where struc-
program or activity or would result in tural changes in facilities are under-
undue financial and administrative taken, such changes shall be made
burdens, the DOT element has the bur- within three years of the effective date
360
of this part, but in any event as expedi- caps. The definitions, requirements and
tiously as possible. Provided that, standards of the Architectural Barriers
where major restructuring of fixed fa- Act (42 U.S.C. 4151–4157), as established
cilities to accommodate technological in 41 CFR 101–19.600–607, apply to build-
changes is planned to occur within five ings covered by this section, except for
years from the effective date of this military facilities of the Coast Guard,
part, changes needed to comply with which are covered by 32 CFR part 56.
this section are not required to be
made until the planned restructuring §§ 28.152–28.159 [Reserved]
takes place. However, alternative
means for participation by individuals § 28.160 Communications.
with handicaps in DOT programs and (a) The Department shall take appro-
activities in the most integrated set- priate steps to ensure effective commu-
ting possible during this interim wait- nication with applicants, participants,
ing period shall be available. personnel of other Federal entities, and
(d) Transition plan. In the event that members of the public.
structural changes to facilities will be (1) The Department shall furnish ap-
undertaken to achieve program acces- propriate auxiliary aids where nec-
sibility, the Department shall develop, essary to afford an individual with
within six months of the effective date handicaps an equal opportunity to par-
of this part, a transition plan setting ticipate in, and enjoy the benefits of, a
forth the steps necessary to complete program or activity conducted by the
such changes. The agency shall provide Department.
an opportunity to interested persons, (i) In determining what type of auxil-
including individuals with handicaps, iary aid is necessary, the Department
agency employees with handicaps, or shall give primary consideration to the
organizations representing individuals requests of the individual with handi-
with handicaps, to participate in the caps.
development of the transition plan by (ii) The Department need not provide
submitting comments (both oral and individually prescribed devices, readers
written). A copy of the transition plan for personal use or study, or other de-
shall be made available for public in- vices of a personal nature to applicants
spection. The plan shall, at a min- or participants in programs.
imum— (2) Where the Department commu-
(1) Identify physical obstacles in the nicates with applicants and bene-
Department’s facilities that limit the ficiaries by telephone, telecommuni-
accessibility of its programs or activi- cations devices for deaf persons (TDDs)
ties to individuals with handicaps; or equally effective telecommunication
(2) Describe in detail the methods systems, shall be used to communicate
that will be used to make the facilities with persons with impaired hearing.
accessible; (b) The Department shall ensure that
(3) Specify the schedule for taking interested persons, including persons
the steps necessary to achieve compli- with impaired vision or hearing, can
ance with this section and, if the time obtain information as to the existence
period of the transition plan is longer and location of accessible services, ac-
than one year, identify steps that will tivities, and facilities.
be taken during each year of the tran- (c) The Department shall provide
sition period; and signs at each primary entrance to each
(4) Indicate the official responsible of its inaccessible facilities, directing
for implementation of the plan. users to a location at which they can
obtain information as to the location
§ 28.151 Program accessibility: New of accessible facilities. The inter-
construction and alterations. national symbol for accessibility shall
Each building or part of a building be used at each primary entrance of an
that is constructed or altered by, on accessible facility.
behalf of, or for the use of the Depart- (d) This section does not require the
ment shall be designed, constructed, or Department to take any action that it
altered so as to be readily accessible to can demonstrate would result in a fun-
and usable by individuals with handi- damental alteration in the nature of a
361
program or activity or in undue finan- writing, or the decision on the request.

cial and administrative burdens. In The complainant may request reconsid-
those circumstances where personnel of eration by the Departmental element
a DOT element believe that the proof the decision. The decision on the pe-
posed action would fundamentally tition or request shall constitute the
alter the program or activity or would Department’s final action in the mat-
result in an undue financial and admin- ter.
istrative burden, the DOT element has (c) Responsibility for implementa-
the burden of proving that compliance tion and operation of this section shall
with § 28.160 would result in such alter- be vested in the Director, Depart-
ation or burden. The decision that mental Office of Civil Rights.
compliance would result in such alter- (d)(1) The Department shall accept
ation or burden must be made by the and investigate all complete com-
Secretary or his or her designee, after plaints for which it has jurisdiction.
considering all resources available for All complete complaints must be filed
use in the funding and operation of the within 180 days of the alleged act of
program or activity, and must be ac- discrimination. The Department may
companied by a written statement of extend this time period for good cause.
the reasons for reaching that conclu- (2) If the subject matter of a com-
sion. If an action required to comply plete complaint concerns a decision by
with this section would result in such a Departmental element, under a safe-
an alteration or such burdens, the De- ty regulation, concerning an individ-
partment shall take any other action ual’s qualifications to perform a func-
that would not result in such an alter- tion or to receive a certificate or li-
ation or such a burden but would nev- cense, and the complainant has avail-
ertheless ensure that, to the maximum able within the Departmental element
extent possible, individuals with handi- a formal review or appeal mechanism
caps receive the benefits and services concerning that decision, the Depart-
of the program or activity. ment shall not take action on the com-
plaint until the Departmental ele-
§§ 28.161–28.169 [Reserved] ment’s review or appeal process has
been completed.
§ 28.170 Compliance procedures. (e) If the Department receives a com-
(a) Except as provided in paragraph plaint over which it does not have ju-
(b) of this section, paragraphs (c)–(k) of risdiction, it shall promptly notify the
this section apply to all allegations of complainant and shall make reason-
discrimination on the basis of handicap able efforts to refer the complaint to
in programs of activities conducted by the appropriate Government entity.
the Department; (f) The Department shall notify the
(b)(1) The Department shall process Architectural and Transportation Bar-
complaints alleging violations of sec- riers Compliance Board upon receipt of
tion 504 with respect to employment any complaint alleging that a building
according to the procedures established or facility that is subject to the Archi-
by the Equal Employment Opportunity tectural Barriers Act of 1968, as amend-
Commission in 29 CFR part 1613 pursu- ed (42 U.S.C. 4151–4157), is not readily
ant to section 501 of the Rehabilitation accessible to and usable by individuals
Act of 1973 (29 U.S.C. 791). with handicaps.
(2) The Department shall process (g) Within 180 days of the receipt of a
complaints alleging violations of sec- complete complaint for which it has ju-
tion 504 with respect to requirements risdiction, the Department shall notify
of any Department safety regulation, the complainant of the results of the
concerning an individual’s qualifica- investigation in a letter containing—
tions to perform a function or to re- (1) Findings of fact and conclusions
ceive a certificate or license, according of law;
to the procedures for a petition for an (2) A description of a remedy for each
individual waiver or request for review violation found; and
of a standard for possible amendment (3) A notice of the right to appeal.
or recession. The Departmental ele- (h) Appeals of the findings of fact and
ment shall inform the complainant, in conclusions of law or remedies must be
362
filed by the complainant within 90 days 29.125 Does an exclusion under the non-
of receipt from the Department of the procurement system affect a person’s eli-
letter required by § 28.170(g). The De- gibility for Federal procurement con-
tracts?
partment may extend this time for
29.130 Does exclusion under the Federal pro-
good cause. curement system affect a person’s eligi-
(i) Timely appeals shall be accepted bility to participate in nonprocurement
and processed by the Assistant Sec- transactions?
retary for Transportation Policy. The 29.135 May DOT exclude a person who is not
appeal will not be heard by the same currently participating in a nonprocure-
person who made the initial determina- ment transaction?
tion on the request. The decision on 29.140 How do I know if a person is ex-
cluded?
the appeal shall constitute the Depart- 29.145 Does this part address persons who
ment’s final action in the matter. are disqualified, as well as those who are
(j) The Department shall notify the excluded from nonprocurement trans-
complainant of the results of the ap- actions?
peal within 60 days of the receipt of the
request. If the Department determines Subpart B—Covered Transactions
that it needs additional information 29.200 What is a covered transaction?
from the complainant, it shall have 60 29.205 Why is it important to know if a par-
days from the date it receives the addi- ticular transaction is a covered trans-
tional information to make its deter- action?
mination on the appeal. 29.210 Which nonprocurement transactions
(k) The time limits cited in para- are covered transactions?
graphs (g) and (j) of this section may be 29.215 Which nonprocurement transactions
are not covered transactions?
extended with the permission of the 29.220 Are any procurement contracts in-
Assistant Attorney General. cluded as covered transactions?
(l) The Department may delegate its 29.225 How do I know if a transaction in
authority for conducting complaint in- which I may participate is a covered
vestigations to other Federal agencies, transaction?
except that the authority for making
the final determination may not be Subpart C—Responsibilities of Participants
delegated to another agency. Regarding Transactions
[56 FR 37296, Aug. 6, 1991, as amended at 59 DOING BUSINESS WITH OTHER PERSONS
FR 10061, Mar. 3, 1994] 29.300 What must I do before I enter into a
covered transaction with another person
§§ 28.171–28.999 [Reserved] at the next lower tier?
29.305 May I enter into a covered trans-
PART 29—GOVERNMENTWIDE DE- action with an excluded or disqualified
person?
BARMENT AND SUSPENSION 29.310 What must I do if a Federal agency
(NONPROCUREMENT) excludes a person with whom I am al-
ready doing business in a covered trans-
Sec. action?
29.25 How is this part organized? 29.315 May I use the services of an excluded
29.50 How is this part written? person as a principal under a covered
29.75 Do terms in this part have special transaction?
meanings? 29.320 Must I verify that principals of my
covered transactions are eligible to par-
Subpart A—General ticipate?
29.325 What happens if I do business with an
29.100 What does this part do? excluded person in a covered trans-
29.105 Does this part apply to me? action?
29.110 What is the purpose of the non- 29.330 What requirements must I pass down
procurement debarment and suspension to persons at lower tiers with whom I in-
system? tend to do business?
29.115 How does an exclusion restrict a per-
DISCLOSING INFORMATION—PRIMARY TIER
son’s involvement in covered trans-
PARTICIPANTS
actions?
29.120 May we grant an exception to let an 29.335 What information must I provide be-
excluded person participate in a covered fore entering into a covered transaction
transaction? with DOT?
363
29.340 If I disclose unfavorable information 29.515 What specific information is in the
required under § 29.335, will I be pre- EPLS?
vented from participating in the trans- 29.520 Who places the information into the
action? EPLS?
29.345 What happens if I fail to disclose the 29.525 Whom do I ask if I have questions
information required under § 29.335? about a person in the EPLS?
29.350 What must I do if I learn of the infor- 29.530 Where can I find the EPLS?
mation required under § 29.335 after en-
tering into a covered transaction with Subpart F—General Principles Relating to
DOT? Suspension and Debarment Actions
DISCLOSING INFORMATION—LOWER TIER 29.600 How do suspension and debarment ac-
PARTICIPANTS tions start?
29.605 How does suspension differ from de-
29.355 What information must I provide to a barment?
higher tier participant before entering 29.610 What procedures does DOT use in sus-
into a covered transaction with that par- pension and debarment actions?
ticipant? 29.615 How does DOT notify a person of a
29.360 What happens if I fail to disclose the suspension and debarment action?
information required under § 29.355? 29.620 Do Federal agencies coordinate sus-
29.365 What must I do if I learn of informa- pension and debarment actions?
tion required under § 29.355 after entering 29.625 What is the scope of a suspension or
into a covered transaction with a higher debarment action?
tier participant? 29.630 May DOT impute the conduct of one
person to another?
Subpart D—Responsibilities of DOT Officials 29.635 May DOT settle a debarment or sus-
Regarding Transactions pension action?
29.640 May a settlement include a voluntary
29.400 May I enter into a transaction with exclusion?
an excluded or disqualified person? 29.645 Do other Federal agencies know if
29.405 May I enter into a covered trans- DOT agrees to a voluntary exclusion?
action with a participant if a principal of
the transaction is excluded? Subpart G—Suspension
29.410 May I approve a participant’s use of
the services of an excluded person? 29.700 When may the suspending official
29.415 What must I do if a Federal agency issue a suspension?
excludes the participant or a principal 29.705 What does the suspending official
after I enter into a covered transaction? consider in issuing a suspension?
29.420 May I approve a transaction with an 29.710 When does a suspension take effect?
29.715 What notice does the suspending offi-
excluded or disqualified person at a lower
cial give me if I am suspended?
tier?
29.720 How may I contest a suspension?
29.425 When do I check to see if a person is
29.725 How much time do I have to contest
excluded or disqualified?
a suspension?
29.430 How do I check to see if a person is 29.730 What information must I provide to
excluded or disqualified? the suspending official if I contest a sus-
29.435 What must I require of a primary tier pension?
participant? 29.735 Under what conditions do I get an ad-
29.440 What method do I use to commu- ditional opportunity to challenge the
nicate those requirements to partici- facts on which the suspension is based?
pants? 29.740 Are suspension proceedings formal?
29.445 What action may I take if a primary 29.745 How is fact-finding conducted?
tier participant knowingly does business 29.750 What does the suspending official
with an excluded or disqualified person? consider in deciding whether to continue
29.450 What action may I take if a primary or terminate my suspension?
tier participant fails to disclose the in- 29.755 When will I know whether the suspen-
formation required under § 29.335? sion is continued or terminated?
29.455 What may I do if a lower tier partici- 29.760 How long may my suspension last?
pant fails to disclose the information re-
quired under § 29.355 to the next higher Subpart H—Debarment
tier?
29.800 What are the causes for debarment?
Subpart E—Excluded Parties List System 29.805 What notice does the debarring offi-
cial give me if I am proposed for debar-
29.500 What is the purpose of the Excluded ment?
Parties List System (EPLS)? 29.810 When does a debarment take effect?
29.505 Who uses the EPLS? 29.815 How may I contest a proposed debar-
29.510 Who maintains the EPLS? ment?
364
29.820 How much time do I have to contest SOURCE: 68 FR 66644, 66645, Nov. 26, 2003, un-
a proposed debarment? less otherwise noted.
29.825 What information must I provide to
the debarring official if I contest a pro- § 29.25 How is this part organized?
posed debarment?
29.830 Under what conditions do I get an ad- (a) This part is subdivided into ten
ditional opportunity to challenge the subparts. Each subpart contains infor-
facts on which the proposed debarment is mation related to a broad topic or spe-
based? cific audience with special responsibil-
29.835 Are debarment proceedings formal? ities, as shown in the following table:
29.840 How is fact-finding conducted?
29.845 What does the debarring official con- In subpart . . . You will find provisions related to . . .
sider in deciding whether to debar me?
29.850 What is the standard of proof in a de- A ...................... general information about this rule.
B ...................... the types of DOT transactions that are cov-
barment action? ered by the Governmentwide nonprocure-
29.855 Who has the burden of proof in a de- ment suspension and debarment system.
barment action? C ..................... the responsibilities of persons who partici-
29.860 What factors may influence the de- pate in covered transactions.
barring official’s decision? D ..................... the responsibilities of DOT officials who are
29.865 How long may my debarment last? authorized to enter into covered trans-
29.870 When do I know if the debarring offi- actions.
cial debars me? E ...................... the responsibilities of Federal agencies for
the Excluded Parties List System (Dis-
29.875 May I ask the debarring official to re- seminated by the General Services Ad-
consider a decision to debar me? ministration).
29.880 What factors may influence the de- F ...................... the general principles governing suspen-
barring official during reconsideration? sion, debarment, voluntary exclusion and
29.885 May the debarring official extend a settlement.
debarment? G ..................... suspension actions.
H ..................... debarment actions.
Subpart I—Definitions I ....................... definitions of terms used in this part.
J ...................... [Reserved]
29.900 Adequate evidence.
29.905 Affiliate. (b) The following table shows which
29.910 Agency. subparts may be of special interest to
29.915 Agent or representative. you, depending on who you are:
29.920 Civil judgment.
29.925 Conviction. If you are . . . See subpart(s) . . .
29.930 Debarment.
29.935 Debarring official. (1) a participant or principal in a A, B, C, and I.
29.940 Disqualified. nonprocurement transaction.
(2) a respondent in a suspension A, B, F, G and I.
29.945 Excluded or exclusion.
action.
29.950 Excluded Parties List System. (3) a respondent in a debarment A, B, F, H and I.
29.955 Indictment. action.
29.960 Ineligible or ineligibility. (4) a suspending official ............. A, B, D, E, F, G and I.
29.965 Legal proceedings. (5) a debarring official ................ A, B, D, E, F, H and I.
29.970 Nonprocurement transaction. (6) a (n) DOT official authorized A, B, D, E and I.
29.975 Notice. to enter into a covered trans-
29.980 Participant. action.
29.985 Person. (7) Reserved ............................... J.
29.990 Preponderance of the evidence.
29.995 Principal. § 29.50 How is this part written?
29.1000 Respondent.
29.1005 State. (a) This part uses a ‘‘plain language’’
29.1010 Suspending official. format to make it easier for the gen-
29.1015 Suspension. eral public and business community to
29.1020 Voluntary exclusion or voluntarily use. The section headings and text,
excluded. often in the form of questions and an-
swers, must be read together.
Subpart J [Reserved]
(b) Pronouns used within this part,
APPENDIX TO PART 29—COVERED TRANS- such as ‘‘I’’ and ‘‘you,’’ change from
ACTIONS subpart to subpart depending on the
audience being addressed. The pronoun
AUTHORITY: Sec. 2455, Pub. L. 103–355, 108
Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 (3
‘‘we’’ always is the Department of
CFR, 1973 Comp., p. 799); E.O. 12549 (3 CFR, Transportation.
1986 Comp., p. 189); E.O. 12689 (3 CFR, 1989 (c) The ‘‘Covered Transactions’’ dia-
Comp., p. 235). gram in the appendix to this part
365
shows the levels or ‘‘tiers’’ at which pant or principal in a covered trans-

the Department of Transportation en- action;
forces an exclusion under this part. (b) Respondent (a person against
whom the Department of Transpor-
§ 29.75 Do terms in this part have spe- tation has initiated a debarment or
cial meanings? suspension action);
This part uses terms throughout the (c) DOT debarring or suspending offi-
text that have special meaning. Those cial; or
terms are defined in Subpart I of this (d) DOT official who is authorized to
part. For example, three important enter into covered transactions with
terms are— non-Federal parties.
(a) Exclusion or excluded, which refers
only to discretionary actions taken by § 29.110 What is the purpose of the
a suspending or debarring official nonprocurement debarment and
suspension system?
under this part or the Federal Acquisi-
tion Regulation (48 CFR part 9, subpart (a) To protect the public interest, the
9.4); Federal Government ensures the integ-
(b) Disqualification or disqualified, rity of Federal programs by conducting
which refers to prohibitions under spe- business only with responsible persons.
cific statutes, executive orders (other (b) A Federal agency uses the non-
than Executive Order 12549 and Execu- procurement debarment and suspension
tive Order 12689), or other authorities. system to exclude from Federal pro-
Disqualifications frequently are not grams persons who are not presently
subject to the discretion of an agency responsible.
official, may have a different scope (c) An exclusion is a serious action
than exclusions, or have special condi- that a Federal agency may take only
tions that apply to the disqualifica- to protect the public interest. A Fed-
tion; and eral agency may not exclude a person
(c) Ineligibility or ineligible, which gen- or commodity for the purposes of pun-
erally refers to a person who is either ishment.
excluded or disqualified.
§ 29.115 How does an exclusion restrict
a person’s involvement in covered
Subpart A—General transactions?
§ 29.100 What does this part do? With the exceptions stated in
§§ 29.120, 29.315, and 29.420, a person who
This part adopts a governmentwide is excluded by the Department of
system of debarment and suspension Transportation or any other Federal
for DOT nonprocurement activities. It agency may not:
also provides for reciprocal exclusion (a) Be a participant in a(n) DOT
of persons who have been excluded transaction that is a covered trans-
under the Federal Acquisition Regula- action under subpart B of this part;
tion, and provides for the consolidated (b) Be a participant in a transaction
listing of all persons who are excluded, of any other Federal agency that is a
or disqualified by statute, executive covered transaction under that agen-
order, or other legal authority. This cy’s regulation for debarment and sus-
part satisfies the requirements in sec- pension; or
tion 3 of Executive Order 12549, ‘‘De- (c) Act as a principal of a person par-
barment and Suspension’’ (3 CFR 1986 ticipating in one of those covered
Comp., p. 189), Executive Order 12689, transactions.
‘‘Debarment and Suspension’’ (3 CFR
1989 Comp., p. 235) and 31 U.S.C. 6101 § 29.120 May we grant an exception to
note (Section 2455, Public Law 103–355, let an excluded person participate
108 Stat. 3327). in a covered transaction?
(a) The debarring or suspending offi-
§ 29.105 Does this part apply to me? cial may grant an exception permitting
Portions of this part (see table at an excluded person to participate in a
§ 29.25(b)) apply to you if you are a(n)— particular covered transaction. If the
(a) Person who has been, is, or may debarring or suspending official grants
reasonably be expected to be, a partici- an exception, the exception must be in
366
writing and state the reason(s) for de- suspension system, the agency enters
viating from the governmentwide pol- the information about the excluded
icy in Executive Order 12549. person into the EPLS.
(b) An exception granted by one
agency for an excluded person does not § 29.145 Does this part address persons
extend to the covered transactions of who are disqualified, as well as
another agency. those who are excluded from non-
procurement transactions?
(c) A debarring or suspending official
may grant exceptions and make writ- Except if provided for in Subpart J of
ten determinations under this section. this part, this part—
(a) Addresses disqualified persons
§ 29.125 Does an exclusion under the only to—
nonprocurement system affect a (1) Provide for their inclusion in the
person’s eligibility for Federal pro- EPLS; and
curement contracts?
(2) State responsibilities of Federal
If any Federal agency excludes a per- agencies and participants to check for
son under its nonprocurement common disqualified persons before entering
rule on or after August 25, 1995, the ex- into covered transactions.
cluded person is also ineligible to par- (b) Does not specify the—
ticipate in Federal procurement trans- (1) DOT transactions for which a dis-
actions under the FAR. Therefore, an qualified person is ineligible. Those
exclusion under this part has recip- transactions vary on a case-by-case
rocal effect in Federal procurement basis, because they depend on the lan-
transactions. guage of the specific statute, Executive
order, or regulation that caused the
§ 29.130 Does exclusion under the Fed- disqualification;
eral procurement system affect a
person’s eligibility to participate in (2) Entities to which the disqualifica-
nonprocurement transactions? tion applies; or
(3) Process that the agency uses to
If any Federal agency excludes a per-
disqualify a person. Unlike exclusion,
son under the FAR on or after August
disqualification is frequently not a dis-
25, 1995, the excluded person is also in-
cretionary action that a Federal agen-
eligible to participate in nonprocure-
cy takes.
ment covered transactions under this
part. Therefore, an exclusion under the
FAR has reciprocal effect in Federal Subpart B—Covered Transactions
nonprocurement transactions.
§ 29.200 What is a covered transaction?
§ 29.135 May the Department of Trans- A covered transaction is a non-
portation exclude a person who is procurement or procurement trans-
not currently participating in a action that is subject to the prohibi-
nonprocurement transaction? tions of this part. It may be a trans-
Given a cause that justifies an exclu- action at—
sion under this part, we may exclude (a) The primary tier, between a Fed-
any person who has been involved, is eral agency and a person (see appendix
currently involved, or may reasonably to this part); or
be expected to be involved in a covered (b) A lower tier, between a partici-
transaction. pant in a covered transaction and an-
other person.
§ 29.140 How do I know if a person is
excluded? § 29.205 Why is it important if a par-
Check the Excluded Parties List System ticular transaction is a covered
(EPLS) to determine whether a person transaction?
is excluded. The General Services Ad- The importance of a covered trans-
ministration (GSA) maintains the action depends upon who you are.
EPLS and makes it available, as de- (a) As a participant in the trans-
tailed in subpart E of this part. When a action, you have the responsibilities
Federal agency takes an action to ex- laid out in Subpart C of this part.
clude a person under the nonprocure- Those include responsibilities to the
ment or procurement debarment and person or Federal agency at the next
367
higher tier from whom you received transactions and, therefore, are not af-
the transaction, if any. They also in- fected if the person is excluded.
clude responsibilities if you subse- (c) Federal employment.
quently enter into other covered trans- (d) A transaction that the Depart-
actions with persons at the next lower ment of Transportation needs to re-
tier. spond to a national or agency-recog-
(b) As a Federal official who enters nized emergency or disaster.
into a primary tier transaction, you (e) A permit, license, certificate, or
have the responsibilities laid out in similar instrument issued as a means
subpart D of this part. to regulate public health, safety, or the
(c) As an excluded person, you may environment, unless the Department of
not be a participant or principal in the Transportation specifically designates
transaction unless— it to be a covered transaction.
(1) The person who entered into the
(f) An incidental benefit that results
transaction with you allows you to
from ordinary governmental oper-
continue your involvement in a trans-
action that predates your exclusion, as ations.
permitted under § 29.310 or § 29.415; or (g) Any other transaction if the ap-
(2) A(n) DOT official obtains an ex- plication of an exclusion to the trans-
ception from the debarring or sus- action is prohibited by law.
pending official to allow you to be in-
§ 29.220 Are any procurement con-
volved in the transaction, as permitted
tracts included as covered trans-
under § 29.120. actions?
§ 29.210 Which nonprocurement trans- (a) Covered transactions under this
actions are covered transactions? part—
All nonprocurement transactions, as (1) Do not include any procurement
defined in § 29.970, are covered trans- contracts awarded directly by a Fed-
actions unless listed in § 29.215. (See ap- eral agency; but
pendix to this part.) (2) Do include some procurement con-
tracts awarded by non-Federal partici-
§ 29.215 Which nonprocurement trans- pants in nonprocurement covered
actions are not covered trans- transactions (see appendix to this
actions?
part).
The following types of nonprocure- (b) Specifically, a contract for goods
ment transactions are not covered or services is a covered transaction if
transactions: any of the following applies:
(a) A direct award to— (1) The contract is awarded by a par-
(1) A foreign government or foreign ticipant in a nonprocurement trans-
governmental entity; action that is covered under § 29.210,
(2) A public international organiza-
and the amount of the contract is ex-
tion;
pected to equal or exceed $25,000.
(3) An entity owned (in whole or in
part) or controlled by a foreign govern- (2) The contract requires the consent
ment; or of a(n) DOT official. In that case, the
(4) Any other entity consisting whol- contract, regardless of the amount, al-
ly or partially of one or more foreign ways is a covered transaction, and it
governments or foreign governmental does not matter who awarded it. For
entities. example, it could be a subcontract
(b) A benefit to an individual as a awarded by a contractor at a tier below
personal entitlement without regard to a nonprocurement transaction, as
the individual’s present responsibility shown in the appendix to this part.
(but benefits received in an individual’s (3) The contract is for federally-re-
business capacity are not excepted). quired audit services.
For example, if a person receives social (c) The contract is awarded by any
security benefits under the Supple- contractor, subcontractor, supplier,
mental Security Income provisions of consultant or its agent or representa-
the Social Security Act, 42 U.S.C. 1301 tive in any transaction, regardless of
et seq., those benefits are not covered tier, to be funded or provided by the
368
DOT under a nonprocurement trans- § 29.310 What must I do if a Federal

action that is expected to equal or ex- agency excludes a person with
ceed $25,000. [See optional lower tier whom I am already doing business
coverage shown in the diagram in the in a covered transaction?
appendix to this part.] (a) You as a participant may con-
[68 FR 66644, 66645, Nov. 26, 2003, as amended tinue covered transactions with an ex-
at 71 FR 62396, Oct. 25, 2006] cluded person if the transactions were
in existence when the agency excluded
§ 29.225 How do I know if a trans- the person. However, you are not re-
action in which I may participate is quired to continue the transactions,
a covered transaction? and you may consider termination.
As a participant in a transaction, You should make a decision about
you will know that it is a covered whether to terminate and the type of
transaction because the agency regula- termination action, if any, only after a
tions governing the transaction, the thorough review to ensure that the ac-
appropriate agency official, or partici- tion is proper and appropriate.
pant at the next higher tier who enters (b) You may not renew or extend cov-
into the transaction with you, will tell ered transactions (other than no-cost
you that you must comply with appli- time extensions) with any excluded
cable portions of this part. person, unless the Department of
Transportation grants an exception
Subpart C—Responsibilities of Par- under § 29.120.
ticipants Regarding Trans- § 29.315 May I use the services of an
actions excluded person as a principal
under a covered transaction?
DOING BUSINESS WITH OTHER PERSONS
(a) You as a participant may con-
§ 29.300 What must I do before I enter tinue to use the services of an excluded
into a covered transaction with an- person as a principal under a covered
other person at the next lower tier? transaction if you were using the serv-
When you enter into a covered trans- ices of that person in the transaction
action with another person at the next before the person was excluded. How-
lower tier, you must verify that the ever, you are not required to continue
person with whom you intend to do using that person’s services as a prin-
business is not excluded or disqualified. cipal. You should make a decision
You do this by: about whether to discontinue that per-
(a) Checking the EPLS; or son’s services only after a thorough re-
(b) Collecting a certification from view to ensure that the action is proper
that person if allowed by this rule; or and appropriate.
(c) Adding a clause or condition to (b) You may not begin to use the
the covered transaction with that per- services of an excluded person as a
son. principal under a covered transaction
unless the Department of Transpor-
§ 29.305 May I enter into a covered tation grants an exception under
transaction with an excluded or dis- § 29.120.
qualified person?
(a) You as a participant may not § 29.320 Must I verify that principals
enter into a covered transaction with of my covered transactions are eli-
an excluded person, unless the Depart- gible to participate?
ment of Transportation grants an ex- Yes, you as a participant are respon-
ception under § 29.120. sible for determining whether any of
(b) You may not enter into any trans- your principals of your covered trans-
action with a person who is disqualified actions is excluded or disqualified from
from that transaction, unless you have participating in the transaction. You
obtained an exception under the dis- may decide the method and frequency
qualifying statute, Executive order, or by which you do so. You may, but you
regulation. are not required to, check the EPLS.
369
§ 29.325 What happens if I do business § 29.340 If I disclose unfavorable infor-

with an excluded person in a cov- mation required under § 29.335, will
ered transaction? I be prevented from participating
in the transaction?
If as a participant you knowingly do
business with an excluded person, we As a primary tier participant, your
may disallow costs, annul or terminate disclosure of unfavorable information
the transaction, issue a stop work about yourself or a principal under
order, debar or suspend you, or take § 29.335 will not necessarily cause us to
other remedies as appropriate. deny your participation in the covered
transaction. We will consider the infor-
§ 29.330 What requirements must I mation when we determine whether to
pass down to persons at lower tiers enter into the covered transaction. We
with whom I intend to do business? also will consider any additional infor-
Before entering into a covered trans- mation or explanation that you elect
action with a participant at the next to submit with the disclosed informa-
lower tier, you must require that par- tion.
ticipant to—
(a) Comply with this subpart as a § 29.345 What happens if I fail to dis-
close information required under
condition of participation in the trans- § 29.335?
action. You may do so using any meth-
od(s), unless § 29.440 requires you to use If we later determine that you failed
specific methods. to disclose information under § 29.335
(b) Pass the requirement to comply that you knew at the time you entered
with this subpart to each person with into the covered transaction, we may—
whom the participant enters into a (a) Terminate the transaction for
covered transaction at the next lower material failure to comply with the
tier. terms and conditions of the trans-
action; or
DISCLOSING INFORMATION—PRIMARY (b) Pursue any other available rem-
TIER PARTICIPANTS edies, including suspension and debar-
ment.
§ 29.335 What information must I pro-
vide before entering into a covered § 29.350 What must I do if I learn of in-
transaction with the Department of formation required under § 29.335
Transportation? after entering into a covered trans-
action with the Department of
Before you enter into a covered Transportation?
transaction at the primary tier, you as
the participant must notify the DOT At any time after you enter into a
office that is entering into the trans- covered transaction, you must give im-
action with you, if you know that you mediate written notice to the DOT of-
or any of the principals for that cov- fice with which you entered into the
ered transaction: transaction if you learn either that—
(a) You failed to disclose information
(a) Are presently excluded or dis-
earlier, as required by § 29.335; or
qualified;
(b) Due to changed circumstances,
(b) Have been convicted within the
you or any of the principals for the
preceding three years of any of the of-
transaction now meet any of the cri-
fenses listed in § 29.800(a) or had a civil
teria in § 29.335.
judgment rendered against you for one
of those offenses within that time pe- DISCLOSING INFORMATION—LOWER TIER
riod; PARTICIPANTS
(c) Are presently indicted for or oth-
erwise criminally or civilly charged by § 29.355 What information must I pro-
a governmental entity (Federal, State vide to a higher tier participant be-
or local) with commission of any of the fore entering into a covered trans-
offenses listed in § 29.800(a); or action with that participant?
(d) Have had one or more public Before you enter into a covered
transactions (Federal, State, or local) transaction with a person at the next
terminated within the preceding three higher tier, you as a lower tier partici-
years for cause or default. pant must notify that person if you
370
know that you or any of the principals § 29.410 May I approve a participant’s
are presently excluded or disqualified. use of the services of an excluded
person?
§ 29.360 What happens if I fail to dis- After entering into a covered trans-
close the information required
under § 29.355? action with a participant, you as an
agency official may not approve a par-
If we later determine that you failed ticipant’s use of an excluded person as
to tell the person at the higher tier a principal under that transaction, un-
that you were excluded or disqualified less you obtain an exception under
at the time you entered into the cov- § 29.120.
ered transaction with that person, we
may pursue any available remedies, in- § 29.415 What must I do if a Federal
cluding suspension and debarment. agency excludes the participant or
a principal after I enter into a cov-
§ 29.365 What must I do if I learn of in- ered transaction?
formation required under § 29.355 (a) You as an agency official may
after entering into a covered trans-
action with a higher tier partici- continue covered transactions with an
pant? excluded person, or under which an ex-
cluded person is a principal, if the
At any time after you enter into a transactions were in existence when
lower tier covered transaction with a the person was excluded. You are not
person at a higher tier, you must pro- required to continue the transactions,
vide immediate written notice to that however, and you may consider termi-
person if you learn either that— nation. You should make a decision
(a) You failed to disclose information about whether to terminate and the
earlier, as required by § 29.355; or type of termination action, if any, only
(b) Due to changed circumstances, after a thorough review to ensure that
you or any of the principals for the the action is proper.
transaction now meet any of the cri- (b) You may not renew or extend cov-
teria in § 29.355. ered transactions (other than no-cost
time extensions) with any excluded
Subpart D—Responsibilities of DOT person, or under which an excluded per-
Officials Regarding Transactions son is a principal, unless you obtain an
exception under § 29.120.
§ 29.400 May I enter into a transaction
with an excluded or disqualified § 29.420 May I approve a transaction
person? with an excluded or disqualified
person at a lower tier?
(a) You as an agency official may not
enter into a covered transaction with If a transaction at a lower tier is sub-
an excluded person unless you obtain ject to your approval, you as an agency
an exception under § 29.120. official may not approve—
(b) You may not enter into any trans- (a) A covered transaction with a per-
action with a person who is disqualified son who is currently excluded, unless
from that transaction, unless you ob- you obtain an exception under § 29.120;
tain a waiver or exception under the or
statute, Executive order, or regulation (b) A transaction with a person who
that is the basis for the person’s dis- is disqualified from that transaction,
qualification. unless you obtain a waiver or exception
under the statute, Executive order, or
§ 29.405 May I enter into a covered regulation that is the basis for the per-
transaction with a participant if a son’s disqualification.
principal of the transaction is ex-
cluded? § 29.425 When do I check to see if a
As an agency official, you may not person is excluded or disqualified?
enter into a covered transaction with a As an agency official, you must
participant if you know that a prin- check to see if a person is excluded or
cipal of the transaction is excluded, un- disqualified before you—
less you obtain an exception under (a) Enter into a primary tier covered
§ 29.120. transaction;
371
(b) Approve a principal in a primary § 29.450 What action may I take if a

tier covered transaction; primary tier participant fails to dis-
(c) Approve a lower tier participant if close the information required
agency approval of the lower tier par- under § 29.335?
ticipant is required; or If you as an agency official deter-
(d) Approve a principal in connection mine that a participant failed to dis-
with a lower tier transaction if agency close information, as required by
approval of the principal is required. § 29.335, at the time it entered into a
covered transaction with you, you
§ 29.430 How do I check to see if a per- may—
son is excluded or disqualified? (a) Terminate the transaction for
You check to see if a person is ex- material failure to comply with the
cluded or disqualified in two ways: terms and conditions of the trans-
action; or
(a) You as an agency official must
(b) Pursue any other available rem-
check the EPLS when you take any ac-
edies, including suspension and debar-
tion listed in § 29.425.
ment.
(b) You must review information that
a participant gives you, as required by § 29.455 What may I do if a lower tier
§ 29.335, about its status or the status of participant fails to disclose the in-
the principals of a transaction. formation required under § 29.355
to the next higher tier?
§ 29.435 What must I require of a pri- If you as an agency official deter-
mary tier participant? mine that a lower tier participant
You as an agency official must re- failed to disclose information, as re-
quire each participant in a primary quired by § 29.355, at the time it entered
tier covered transaction to— into a covered transaction with a par-
(a) Comply with subpart C of this ticipant at the next higher tier, you
part as a condition of participation in may pursue any remedies available to
the transaction; and you, including the initiation of a sus-
(b) Communicate the requirement to pension or debarment action.
comply with Subpart C of this part to
persons at the next lower tier with Subpart E—Excluded Parties List
whom the primary tier participant en- System
ters into covered transactions.
§ 29.500 What is the purpose of the Ex-
§ 29.440 What method do I use to com- cluded Parties List System (EPLS)?
municate those requirements to The EPLS is a widely available
participants? source of the most current information
To communicate the requirement about persons who are excluded or dis-
you must include a term or condition qualified from covered transactions.
in the transaction requiring the par-
ticipants’ compliance with subpart C of § 29.505 Who uses the EPLS?
this part and requiring them to include (a) Federal agency officials use the
a similar term or condition in lower- EPLS to determine whether to enter
tier covered transactions. into a transaction with a person, as re-
quired under § 29.430.
§ 29.445 What action may I take if a (b) Participants also may, but are
primary tier participant knowingly not required to, use the EPLS to deter-
does business with an excluded or mine if—
disqualified person?
(1) Principals of their transactions
If a participant knowingly does busi- are excluded or disqualified, as re-
ness with an excluded or disqualified quired under § 29.320; or
person, you as an agency official may (2) Persons with whom they are en-
refer the matter for suspension and de- tering into covered transactions at the
barment consideration. You may also next lower tier are excluded or dis-
disallow costs, annul or terminate the qualified.
transaction, issue a stop work order, or (c) The EPLS is available to the gen-
take any other appropriate remedy. eral public.
372
§ 29.510 Who maintains the EPLS? the number is available and may be
In accordance with the OMB guide- disclosed under law;
lines, the General Services Administra- (c) Information about an excluded or
tion (GSA) maintains the EPLS. When disqualified person, generally within
a Federal agency takes an action to ex- five working days, after—
clude a person under the nonprocure- (1) Taking an exclusion action;
ment or procurement debarment and (2) Modifying or rescinding an exclu-
suspension system, the agency enters sion action;
the information about the excluded (3) Finding that a person is disquali-
person into the EPLS. fied; or
(4) Finding that there has been a
§ 29.515 What specific information is in change in the status of a person who is
the EPLS?
listed as disqualified;
(a) At a minimum, the EPLS indi- (d) The DOT official’s Operating Ad-
cates— ministration code, as follows: Research
(1) The full name (where available) and Innovative Technology Adminis-
and address of each excluded or dis- tration [RITA]; Federal Aviation Ad-
qualified person, in alphabetical order, ministration [DOT-FAA]; Federal
with cross references if more than one Highway Administration [DOT-FHWA];
name is involved in a single action; Federal Motor Carrier Safety Adminis-
(2) The type of action;
tration [DOT-FMCSA]; Federal Rail-
(3) The cause for the action;
way Administration [DOT-FRA]; Fed-
(4) The scope of the action;
eral Transit Administration [DOT-
(5) Any termination date for the ac-
tion; FTA]; National Highway Traffic Safety
(6) The agency and name and tele- Administration [DOT-NHTSA]; Pipe-
phone number of the agency point of line and Hazardous Materials Safety
contact for the action; and Administration [DOT–PHMSA]; Mari-
(7) The Dun and Bradstreet Number time Administration [DOT-MARAD];
(DUNS), or other similar code approved and DOT (general) [DOT-OST].
by the GSA, of the excluded or dis- [68 FR 66644, 66645, Nov. 26, 2003, as amended
qualified person, if available. at 71 FR 62396, Oct. 25, 2006]
(b)(1) The database for the EPLS in-
cludes a field for the Taxpayer Identi- § 29.525 Whom do I ask if I have ques-
fication Number (TIN) (the social secu- tions about a person in the EPLS?
rity number (SSN) for an individual) of If you have questions about a person
an excluded or disqualified person. in the EPLS, ask the point of contact
(2) Agencies disclose the SSN of an for the Federal agency that placed the
individual to verify the identity of an person’s name into the EPLS. You may
individual, only if permitted under the find the agency point of contact from
Privacy Act of 1974 and, if appropriate, the EPLS.
the Computer Matching and Privacy
Protection Act of 1988, as codified in 5 § 29.530 Where can I find the EPLS?
U.S.C. 552(a).
(a) You may access the EPLS through
§ 29.520 Who places the information the Internet, currently at http://
into the EPLS? epls.arnet.gov.
Federal officials who take actions to (b) As of November 26, 2003, you may
exclude persons under this part or offi- also subscribe to a printed version.
cials who are responsible for identi- However, we anticipate discontinuing
fying disqualified persons must enter the printed version. Until it is discon-
the following information about those tinued, you may obtain the printed
persons into the EPLS: version by purchasing a yearly sub-
(a) Information required by scription from the Superintendent of
§ 29.515(a); Documents, U.S. Government Printing
(b) The Taxpayer Identification Num- Office, Washington, DC 20402, or by
ber (TIN) of the excluded or disquali- calling the Government Printing Office
fied person, including the social secu- Inquiry and Order Desk at (202) 783–
rity number (SSN) for an individual, if 3238.
373
Subpart F—General Principles Re- § 29.615 How does the Department of

lating to Suspension and De- Transportation notify a person of a
suspension or debarment action?
barment Actions
(a) The suspending or debarring offi-
§ 29.600 How do suspension and debar- cial sends a written notice to the last
ment actions start? known street address, facsimile num-
ber, or e-mail address of—
When we receive information from
(1) You or your identified counsel; or
any source concerning a cause for sus-
pension or debarment, we will prompt- (2) Your agent for service of process,
or any of your partners, officers, direc-
ly report and investigate it. We refer
tors, owners, or joint venturers.
the question of whether to suspend or
(b) The notice is effective if sent to
debar you to our suspending or debar-
any of these persons.
ring official for consideration, if appro-
priate. § 29.620 Do Federal agencies coordi-
nate suspension and debarment ac-
§ 29.605 How does suspension differ tions?
from debarment?
Yes, when more than one Federal
Suspension differs from debarment in agency has an interest in a suspension
that— or debarment, the agencies may con-
sider designating one agency as the
A suspending official . . . A debarring official . . .
lead agency for making the decision.
(a) Imposes suspension as a Imposes debarment for a Agencies are encouraged to establish
temporary status of ineligi- specified period as a final methods and procedures for coordi-
bility for procurement and determination that a person
nonprocurement trans- is not presently respon-
nating their suspension and debarment
actions, pending comple- sible. actions.
tion of an investigation or
legal proceedings. § 29.625 What is the scope of a suspen-
(b) Must— .............................. Must conclude, based on a sion or debarment?
(1) Have adequate evidence preponderance of the evi-
that there may be a cause dence, that the person has If you are suspended or debarred, the
for debarment of a person; engaged in conduct that suspension or debarment is effective as
and. warrants debarment.
(2) Conclude that immediate
follows:
action is necessary to pro- (a) Your suspension or debarment
tect the Federal interest. constitutes suspension or debarment of
(c) Usually imposes the sus- Imposes debarment after giv- all of your divisions and other organi-
pension first, and then ing the respondent notice
promptly notifies the sus- of the action and an oppor- zational elements from all covered
pended person, giving the tunity to contest the pro- transactions, unless the suspension or
person an opportunity to posed debarment. debarment decision is limited—
contest the suspension and
have it lifted. (1) By its terms to one or more spe-
cifically identified individuals, divi-
sions, or other organizational ele-
§ 29.610 What procedures does the De- ments; or
partment of Transportation use in
(2) To specific types of transactions.
suspension and debarment actions?
(b) Any affiliate of a participant may
In deciding whether to suspend or be included in a suspension or debar-
debar you, we handle the actions as in- ment action if the suspending or debar-
formally as practicable, consistent ring official—
with principles of fundamental fair- (1) Officially names the affiliate in
ness. the notice; and
(a) For suspension actions, we use (2) Gives the affiliate an opportunity
the procedures in this subpart and sub- to contest the action.
part G of this part.
(b) For debarment actions, we use the § 29.630 May the Department of Trans-
portation impute conduct of one
procedures in this subpart and subpart person to another?
H of this part.
For purposes of actions taken under
this rule, we may impute conduct as
follows:
374
(a) Conduct imputed from an individual § 29.645 Do other Federal agencies

to an organization. We may impute the know if the Department of Trans-
fraudulent, criminal, or other improper portation agrees to a voluntary ex-
conduct of any officer, director, share- clusion?
holder, partner, employee, or other in- (a) Yes, we enter information regard-
dividual associated with an organiza- ing a voluntary exclusion into the
tion, to that organization when the im- EPLS.
proper conduct occurred in connection (b) Also, any agency or person may
with the individual’s performance of contact us to find out the details of a
duties for or on behalf of that organiza- voluntary exclusion.
tion, or with the organization’s knowl-
edge, approval or acquiescence. The or- Subpart G—Suspension
ganization’s acceptance of the benefits
derived from the conduct is evidence of § 29.700 When may the suspending offi-
knowledge, approval or acquiescence. cial issue a suspension?
(b) Conduct imputed from an organiza- Suspension is a serious action. Using
tion to an individual, or between individ- the procedures of this subpart and sub-
uals. We may impute the fraudulent, part F of this part, the suspending offi-
criminal, or other improper conduct of cial may impose suspension only when
any organization to an individual, or that official determines that—
from one individual to another indi- (a) There exists an indictment for, or
vidual, if the individual to whom the other adequate evidence to suspect, an
improper conduct is imputed either offense listed under § 29.800(a), or
participated in, had knowledge of, or (b) There exists adequate evidence to
reason to know of the improper con- suspect any other cause for debarment
duct. listed under § 29.800(b) through (d); and
(c) Conduct imputed from one organiza- (c) Immediate action is necessary to
tion to another organization. We may protect the public interest.
impute the fraudulent, criminal, or § 29.705 What does the suspending offi-
other improper conduct of one organi- cial consider in issuing a suspen-
zation to another organization when sion?
the improper conduct occurred in con-
(a) In determining the adequacy of
nection with a partnership, joint ven-
the evidence to support the suspension,
ture, joint application, association or
the suspending official considers how
similar arrangement, or when the orga-
much information is available, how
nization to whom the improper conduct
credible it is given the circumstances,
is imputed has the power to direct,
whether or not important allegations
manage, control or influence the ac- are corroborated, and what inferences
tivities of the organization responsible can reasonably be drawn as a result.
for the improper conduct. Acceptance During this assessment, the suspending
of the benefits derived from the con- official may examine the basic docu-
duct is evidence of knowledge, approval ments, including grants, cooperative
or acquiescence. agreements, loan authorizations, con-
tracts, and other relevant documents.
§ 29.635 May the Department of Trans-
portation settle a debarment or sus- (b) An indictment, conviction, civil
pension action? judgment, or other official findings by
Federal, State, or local bodies that de-
Yes, we may settle a debarment or termine factual and/or legal matters,
suspension action at any time if it is in constitutes adequate evidence for pur-
the best interest of the Federal Gov- poses of suspension actions.
ernment. (c) In deciding whether immediate
action is needed to protect the public
§ 29.640 May a settlement include a interest, the suspending official has
voluntary exclusion?
wide discretion. For example, the sus-
Yes, if we enter into a settlement pending official may infer the neces-
with you in which you agree to be ex- sity for immediate action to protect
cluded, it is called a voluntary exclu- the public interest either from the na-
sion and has governmentwide effect. ture of the circumstances giving rise to
375
a cause for suspension or from poten- formation provided orally that you
tial business relationships or involve- consider important must also be sub-
ment with a program of the Federal mitted in writing for the official
Government. record.
§ 29.710 When does a suspension take § 29.725 How much time do I have to
effect? contest a suspension?
A suspension is effective when the (a) As a respondent you or your rep-
suspending official signs the decision resentative must either send, or make
to suspend. rrangements to appear and present, the
§ 29.715 What notice does the sus- information and argument to the sus-
pending official give me if I am suspending official within 30 days after
pended? you receive the Notice of Suspension.
After deciding to suspend you, the (b) We consider the notice to be re-
suspending official promptly sends you ceived by you—
a Notice of Suspension advising you— (1) When delivered, if we mail the no-
(a) That you have been suspended; tice to the last known street address,
(b) That your suspension is based or five days after we send it if the let-
on— ter is undeliverable;
(1) An indictment; (2) When sent, if we send the notice
(2) A conviction; by facsimile or five days after we send
(3) Other adequate evidence that you it if the facsimile is undeliverable; or
have committed irregularities which (3) When delivered, if we send the no-
seriously reflect on the propriety of tice by e-mail or five days after we
further Federal Government dealings send it if the e-mail is undeliverable.
with you; or
(4) Conduct of another person that § 29.730 What information must I pro-
has been imputed to you, or your affili- vide to the suspending official if I
ation with a suspended or debarred per- contest a suspension?
son;
(a) In addition to any information
(c) Of any other irregularities in
and argument in opposition, as a re-
terms sufficient to put you on notice
spondent your submission to the sus-
without disclosing the Federal Govern-
ment’s evidence; pending official must identify—
(d) Of the cause(s) upon which we re- (1) Specific facts that contradict the
lied under § 29.700 for imposing suspen- statements contained in the Notice of
sion; Suspension. A general denial is insuffi-
(e) That your suspension is for a tem- cient to raise a genuine dispute over
porary period pending the completion facts material to the suspension;
of an investigation or resulting legal or (2) All existing, proposed, or prior ex-
debarment proceedings; clusions under regulations imple-
(f) Of the applicable provisions of this menting E.O. 12549 and all similar ac-
subpart, Subpart F of this part, and tions taken by Federal, state, or local
any other DOT procedures governing agencies, including administrative
suspension decision making; and agreements that affect only those
(g) Of the governmentwide effect of agencies;
your suspension from procurement and (3) All criminal and civil proceedings
nonprocurement programs and activi- not included in the Notice of Suspen-
ties. sion that grew out of facts relevant to
§ 29.720 How may I contest a suspen- the cause(s) stated in the notice; and
sion? (4) All of your affiliates.
If you as a respondent wish to con- (b) If you fail to disclose this infor-
test a suspension, you or your rep- mation, or provide false information,
resentative must provide the sus- the Department of Transportation may
pending official with information in seek further criminal, civil or adminis-
opposition to the suspension. You may trative action against you, as appro-
do this orally or in writing, but any in- priate.
376
§ 29.735 Under what conditions do I upon which the official will base a final
get an additional opportunity to suspension decision.
challenge the facts on which the (b) You as a respondent or your rep-
suspension is based? resentative must submit any documen-
(a) You as a respondent will not have tary evidence you want the suspending
an additional opportunity to challenge official to consider.
the facts if the suspending official de-
termines that— § 29.745 How is fact-finding con-
ducted?
(1) Your suspension is based upon an
indictment, conviction, civil judgment, (a) If fact-finding is conducted—
or other finding by a Federal, State, or (1) You may present witnesses and
local body for which an opportunity to other evidence, and confront any wit-
contest the facts was provided; ness presented; and
(2) Your presentation in opposition (2) The fact-finder must prepare writ-
contains only general denials to infor- ten findings of fact for the record.
mation contained in the Notice of Sus- (b) A transcribed record of fact-find-
pension; ing proceedings must be made, unless
(3) The issues raised in your presen- you as a respondent and the Depart-
tation in opposition to the suspension ment of Transportation agree to waive
are not factual in nature, or are not it in advance. If you want a copy of the
material to the suspending official’s transcribed record, you may purchase
initial decision to suspend, or the offi- it.
cial’s decision whether to continue the § 29.750 What does the suspending offi-
suspension; or cial consider in deciding whether to
(4) On the basis of advice from the continue or terminate my suspen-
Department of Justice, an office of the sion?
United States Attorney, a State attor- (a) The suspending official bases the
ney general’s office, or a State or local decision on all information contained
prosecutor’s office, that substantial in- in the official record. The record in-
terests of the government in pending or cludes—
contemplated legal proceedings based (1) All information in support of the
on the same facts as the suspension suspending official’s initial decision to
would be prejudiced by conducting suspend you;
fact-finding. (2) Any further information and argu-
(b) You will have an opportunity to ment presented in support of, or oppo-
challenge the facts if the suspending sition to, the suspension; and
official determines that— (3) Any transcribed record of fact-
(1) The conditions in paragraph (a) of finding proceedings.
this section do not exist; and (b) The suspending official may refer
(2) Your presentation in opposition disputed material facts to another offi-
raises a genuine dispute over facts ma- cial for findings of fact. The suspending
terial to the suspension. official may reject any resulting find-
(c) If you have an opportunity to ings, in whole or in part, only after
challenge disputed material facts specifically determining them to be ar-
under this section, the suspending offi- bitrary, capricious, or clearly erro-
cial or designee must conduct addi- neous.
tional proceedings to resolve those
facts. § 29.755 When will I know whether the
suspension is continued or termi-
§ 29.740 Are suspension proceedings nated?
formal? The suspending official must make a
(a) Suspension proceedings are con- written decision whether to continue,
ducted in a fair and informal manner. modify, or terminate your suspension
The suspending official may use flexi- within 45 days of closing the official
ble procedures to allow you to present record. The official record closes upon
matters in opposition. In so doing, the the suspending official’s receipt of final
suspending official is not required to submissions, information and findings
follow formal rules of evidence or proof fact, if any. The suspending official
cedure in creating an official record may extend that period for good cause.
377
§ 29.760 How long may my suspension to affect the integrity of an agency

last? program, such as—
(a) If legal or debarment proceedings (1) A willful failure to perform in ac-
are initiated at the time of, or during cordance with the terms of one or more
your suspension, the suspension may public agreements or transactions;
continue until the conclusion of those (2) A history of failure to perform or
proceedings. However, if proceedings of unsatisfactory performance of one or
are not initiated, a suspension may not more public agreements or trans-
exceed 12 months. actions; or
(b) The suspending official may ex- (3) A willful violation of a statutory
tend the 12 month limit under para- or regulatory provision or requirement
graph (a) of this section for an addi- applicable to a public agreement or
tional 6 months if an office of a U.S. transaction;
Assistant Attorney General, U.S. At- (c) Any of the following causes:
torney, or other responsible pros- (1) A nonprocurement debarment by
ecuting official requests an extension any Federal agency taken before Octo-
in writing. In no event may a suspen- ber 1, 1988, or a procurement debarment
sion exceed 18 months without initi- by any Federal agency taken pursuant
ating proceedings under paragraph (a) to 48 CFR part 9, subpart 9.4, before Au-
of this section. gust 25, 1995;
(c) The suspending official must no- (2) Knowingly doing business with an
tify the appropriate officials under ineligible person, except as permitted
paragraph (b) of this section of an im- under § 29.120;
pending termination of a suspension at (3) Failure to pay a single substantial
least 30 days before the 12 month pe- debt, or a number of outstanding debts
riod expires to allow the officials an (including disallowed costs and over-
opportunity to request an extension. payments, but not including sums owed
the Federal Government under the In-
ternal Revenue Code) owed to any Fed-
Subpart H—Debarment eral agency or instrumentality, pro-
vided the debt is uncontested by the
§ 29.800 What are the causes for debar-
ment? debtor or, if contested, provided that
the debtor’s legal and administrative
We may debar a person for— remedies have been exhausted;
(a) Conviction of or civil judgment (4) Violation of a material provision
for— of a voluntary exclusion agreement en-
(1) Commission of fraud or a criminal tered into under § 29.640 or of any set-
offense in connection with obtaining, tlement of a debarment or suspension
attempting to obtain, or performing a action; or
public or private agreement or trans- (5) Violation of the provisions of the
action; Drug-Free Workplace Act of 1988 (41
(2) Violation of Federal or State anti- U.S.C. 701); or
trust statutes, including those pro- (d) Any other cause of so serious or
scribing price fixing between competi- compelling a nature that it affects
tors, allocation of customers between your present responsibility.
competitors, and bid rigging;
(3) Commission of embezzlement, § 29.805 What notice does the debar-
theft, forgery, bribery, falsification or ring official give me if I am pro-
destruction of records, making false posed for debarment?
statements, tax evasion, receiving sto- After consideration of the causes in
len property, making false claims, or § 29.800 of this subpart, if the debarring
obstruction of justice; or official proposes to debar you, the offi-
(4) Commission of any other offense cial sends you a Notice of Proposed De-
indicating a lack of business integrity barment, pursuant to § 29.615, advising
or business honesty that seriously and you—
directly affects your present responsi- (a) That the debarring official is con-
bility; sidering debarring you;
(b) Violation of the terms of a public (b) Of the reasons for proposing to
agreement or transaction so serious as debar you in terms sufficient to put
378
you on notice of the conduct or trans- § 29.825 What information must I pro-
actions upon which the proposed debar- vide to the debarring official if I
ment is based; contest a proposed debarment?
(c) Of the cause(s) under § 29.800 upon (a) In addition to any information
which the debarring official relied for and argument in opposition, as a re-
proposing your debarment; spondent your submission to the debar-
(d) Of the applicable provisions of ring official must identify—
this subpart, Subpart F of this part, (1) Specific facts that contradict the
and any other DOT procedures gov- statements contained in the Notice of
erning debarment; and Proposed Debarment. Include any in-
(e) Of the governmentwide effect of a formation about any of the factors list-
debarment from procurement and non- ed in § 29.860. A general denial is insuf-
procurement programs and activities. ficient to raise a genuine dispute over
facts material to the debarment;
§ 29.810 When does a debarment take (2) All existing, proposed, or prior ex-
effect?
clusions under regulations imple-
A debarment is not effective until menting E.O. 12549 and all similar ac-
the debarring official issues a decision. tions taken by Federal, State, or local
The debarring official does not issue a agencies, including administrative
decision until the respondent has had agreements that affect only those
an opportunity to contest the proposed agencies;
debarment. (3) All criminal and civil proceedings
not included in the Notice of Proposed
§ 29.815 How may I contest a proposed Debarment that grew out of facts rel-
debarment? evant to the cause(s) stated in the no-
If you as a respondent wish to con- tice; and
test a proposed debarment, you or your (4) All of your affiliates.
representative must provide the debar- (b) If you fail to disclose this infor-
ring official with information in oppo- mation, or provide false information,
sition to the proposed debarment. You the Department of Transportation may
may do this orally or in writing, but seek further criminal, civil or adminis-
any information provided orally that trative action against you, as appro-
you consider important must also be priate.
submitted in writing for the official
record. § 29.830 Under what conditions do I
get an additional opportunity to
§ 29.820 How much time do I have to challenge the facts on which a pro-
contest a proposed debarment? posed debarment is based?
(a) As a respondent you or your rep- (a) You as a respondent will not have
resentative must either send, or make an additional opportunity to challenge
arrangements to appear and present, the facts if the debarring official deter-
the information and argument to the mines that—
debarring official within 30 days after (1) Your debarment is based upon a
you receive the Notice of Proposed De- conviction or civil judgment;
barment. (2) Your presentation in opposition
(b) We consider the Notice of Pro- contains only general denials to infor-
posed Debarment to be received by mation contained in the Notice of Pro-
you— posed Debarment; or
(1) When delivered, if we mail the no- (3) The issues raised in your presen-
tice to the last known street address, tation in opposition to the proposed de-
or five days after we send it if the let- barment are not factual in nature, or
ter is undeliverable; are not material to the debarring offi-
(2) When sent, if we send the notice cial’s decision whether to debar.
by facsimile or five days after we send (b) You will have an additional op-
it if the facsimile is undeliverable; or portunity to challenge the facts if the
(3) When delivered, if we send the no- debarring official determines that—
tice by e-mail or five days after we (1) The conditions in paragraph (a) of
send it if the e-mail is undeliverable. this section do not exist; and
379
(2) Your presentation in opposition (1) All information in support of the

raises a genuine dispute over facts ma- debarring official’s proposed debar-
terial to the proposed debarment. ment;
(c) If you have an opportunity to (2) Any further information and argu-
challenge disputed material facts ment presented in support of, or in op-
under this section, the debarring offi- position to, the proposed debarment;
cial or designee must conduct addi- and
tional proceedings to resolve those (3) Any transcribed record of fact-
facts. finding proceedings.
(c) The debarring official may refer
§ 29.835 Are debarment proceedings disputed material facts to another offi-
formal? cial for findings of fact. The debarring
(a) Debarment proceedings are con- official may reject any resultant find-
ducted in a fair and informal manner. ings, in whole or in part, only after
The debarring official may use flexible specifically determining them to be ar-
procedures to allow you as a respond- bitrary, capricious, or clearly erro-
ent to present matters in opposition. In neous.
so doing, the debarring official is not § 29.850 What is the standard of proof
required to follow formal rules of evi- in a debarment action?
dence or procedure in creating an offi-
cial record upon which the official will (a) In any debarment action, we must
base the decision whether to debar. establish the cause for debarment by a
(b) You or your representative must preponderance of the evidence.
submit any documentary evidence you (b) If the proposed debarment is
want the debarring official to consider. based upon a conviction or civil judg-
ment, the standard of proof is met.
§ 29.840 How is fact-finding con-
ducted? § 29.855 Who has the burden of proof
in a debarment action?
(a) If fact-finding is conducted—
(a) We have the burden to prove that
(1) You may present witnesses and
a cause for debarment exists.
other evidence, and confront any wit-
(b) Once a cause for debarment is es-
ness presented; and
tablished, you as a respondent have the
(2) The fact-finder must prepare writ- burden of demonstrating to the satis-
ten findings of fact for the record. faction of the debarring official that
(b) A transcribed record of fact-find- you are presently responsible and that
ing proceedings must be made, unless debarment is not necessary.
you as a respondent and the Depart-
ment of Transportation agree to waive § 29.860 What factors may influence
it in advance. If you want a copy of the the debarring official’s decision?
transcribed record, you may purchase This section lists the mitigating and
it. aggravating factors that the debarring
official may consider in determining
§ 29.845 What does the debarring offi-
cial consider in deciding whether to whether to debar you and the length of
debar me? your debarment period. The debarring
official may consider other factors if
(a) The debarring official may debar appropriate in light of the cir-
you for any of the causes in § 29.800. cumstances of a particular case. The
However, the official need not debar existence or nonexistence of any fac-
you even if a cause for debarment ex- tor, such as one of those set forth in
ists. The official may consider the seri- this section, is not necessarily deter-
ousness of your acts or omissions and minative of your present responsi-
the mitigating or aggravating factors bility. In making a debarment deci-
set forth at § 29.860. sion, the debarring official may con-
(b) The debarring official bases the sider the following factors:
decision on all information contained (a) The actual or potential harm or
in the official record. The record in- impact that results or may result from
cludes— the wrongdoing.
380
(b) The frequency of incidents and/or ics training and implementing pro-
duration of the wrongdoing. grams to prevent recurrence.
(c) Whether there is a pattern or (m) Whether your principals toler-
prior history of wrongdoing. For exam- ated the offense.
ple, if you have been found by another (n) Whether you brought the activity
Federal agency or a State agency to cited as a basis for the debarment to
have engaged in wrongdoing similar to the attention of the appropriate gov-
that found in the debarment action, ernment agency in a timely manner.
the existence of this fact may be used (o) Whether you have fully inves-
by the debarring official in deter- tigated the circumstances surrounding
mining that you have a pattern or the cause for debarment and, if so,
prior history of wrongdoing. made the result of the investigation
(d) Whether you are or have been ex- available to the debarring official.
cluded or disqualified by an agency of (p) Whether you had effective stand-
the Federal Government or have not ards of conduct and internal control
been allowed to participate in State or systems in place at the time the ques-
local contracts or assistance agree- tioned conduct occurred.
ments on a basis of conduct similar to (q) Whether you have taken appro-
one or more of the causes for debar- priate disciplinary action against the
ment specified in this part. individuals responsible for the activity
(e) Whether you have entered into an which constitutes the cause for debar-
administrative agreement with a Fed- ment.
eral agency or a State or local govern- (r) Whether you have had adequate
ment that is not governmentwide but time to eliminate the circumstances
is based on conduct similar to one or within your organization that led to
more of the causes for debarment spec- the cause for the debarment.
ified in this part. (s) Other factors that are appropriate
to the circumstances of a particular
(f) Whether and to what extent you
case.
planned, initiated, or carried out the
wrongdoing. § 29.865 How long may my debarment
(g) Whether you have accepted re- last?
sponsibility for the wrongdoing and (a) If the debarring official decides to
recognize the seriousness of the mis- debar you, your period of debarment
conduct that led to the cause for debar- will be based on the seriousness of the
ment. cause(s) upon which your debarment is
(h) Whether you have paid or agreed based. Generally, debarment should not
to pay all criminal, civil and adminis- exceed three years. However, if cir-
trative liabilities for the improper ac- cumstances warrant, the debarring of-
tivity, including any investigative or ficial may impose a longer period of de-
administrative costs incurred by the barment.
government, and have made or agreed (b) In determining the period of de-
to make full restitution. barment, the debarring official may
(i) Whether you have cooperated fully consider the factors in § 29.860. If a sus-
with the government agencies during pension has preceded your debarment,
the investigation and any court or ad- the debarring official must consider
ministrative action. In determining the the time you were suspended.
extent of cooperation, the debarring of- (c) If the debarment is for a violation
ficial may consider when the coopera- of the provisions of the Drug-Free
tion began and whether you disclosed Workplace Act of 1988, your period of
all pertinent information known to debarment may not exceed five years.
you.
(j) Whether the wrongdoing was per- § 29.870 When do I know if the debar-
vasive within your organization. ring official debars me?
(k) The kind of positions held by the (a) The debarring official must make
individuals involved in the wrongdoing. a written decision whether to debar
(l) Whether your organization took within 45 days of closing the official
appropriate corrective action or reme- record. The official record closes upon
dial measures, such as establishing eth- the debarring official’s receipt of final
381
submissions, information and findings (b) However, the debarring official

of fact, if any. The debarring official may not extend a debarment solely on
may extend that period for good cause. the basis of the facts and cir-
(b) The debarring official sends you cumstances upon which the initial de-
written notice, pursuant to § 29.615 that barment action was based.
the official decided, either— (c) If the debarring official decides
(1) Not to debar you; or that a debarment for an additional pe-
(2) To debar you. In this event, the riod is necessary, the debarring official
notice: must follow the applicable procedures
(i) Refers to the Notice of Proposed in this subpart, and subpart F of this
Debarment; part, to extend the debarment.
(ii) Specifies the reasons for your de-
barment;
(iii) States the period of your debar- Subpart I—Definitions
ment, including the effective dates;
§ 29.900 Adequate evidence.
and
(iv) Advises you that your debarment Adequate evidence means information
is effective for covered transactions sufficient to support the reasonable be-
and contracts that are subject to the lief that a particular act or omission
Federal Acquisition Regulation (48 has occurred.
CFR chapter 1), throughout the execu-
tive branch of the Federal Government § 29.905 Affiliate.
unless an agency head or an authorized Persons are affiliates of each other if,
designee grants an exception. directly or indirectly, either one con-
§ 29.875 May I ask the debarring offi- trols or has the power to control the
cial to reconsider a decision to other or a third person controls or has
debar me? the power to control both. The ways we
use to determine control include, but
Yes, as a debarred person you may
are not limited to—
ask the debarring official to reconsider
the debarment decision or to reduce (a) Interlocking management or own-
the time period or scope of the debar- ership;
ment. However, you must put your re- (b) Identity of interests among fam-
quest in writing and support it with ily members;
documentation. (c) Shared facilities and equipment;
(d) Common use of employees; or
§ 29.880 What factors may influence (e) A business entity which has been
the debarring official during recon- organized following the exclusion of a
sideration?
person which has the same or similar
The debarring official may reduce or management, ownership, or principal
terminate your debarment based on— employees as the excluded person.
(a) Newly discovered material evi-
dence; § 29.910 Agency.
(b) A reversal of the conviction or
civil judgment upon which your debar- Agency means any United States ex-
ment was based; ecutive department, military depart-
(c) A bona fide change in ownership ment, defense agency, or any other
or management; agency of the executive branch. Other
(d) Elimination of other causes for agencies of the Federal government are
which the debarment was imposed; or not considered ‘‘agencies’’ for the pur-
(e) Other reasons the debarring offi- poses of this part unless they issue reg-
cial finds appropriate. ulations adopting the governmentwide
Debarment and Suspension system
§ 29.885 May the debarring official ex- under Executive orders 12549 and 12689.
tend a debarment?
(a) Yes, the debarring official may § 29.915 Agent or representative.
extend a debarment for an additional Agent or representative means any per-
period, if that official determines that son who acts on behalf of, or who is au-
an extension is necessary to protect thorized to commit, a participant in a
the public interest. covered transaction.
382
§ 29.920 Civil judgment. than Executive Orders 12549 and 12689)

or other authority. Examples of dis-
Civil judgment means the disposition
of a civil action by any court of com- qualifications include persons prohib-
petent jurisdiction, whether by verdict, ited under—
decision, settlement, stipulation, other (a) The Davis-Bacon Act (40 U.S.C.
disposition which creates a civil liabil- 276(a));
ity for the complained of wrongful (b) The equal employment oppor-
acts, or a final determination of liabil- tunity acts and Executive orders; or
ity under the Program Fraud Civil (c) The Clean Air Act (42 U.S.C. 7606),
Remedies Act of 1988 (31 U.S.C. 3801– Clean Water Act (33 U.S.C. 1368) and
3812). Executive Order 11738 (3 CFR, 1973
Comp., p. 799).
§ 29.925 Conviction.
Conviction means— § 29.945 Excluded or exclusion.
(a) A judgment or any other deter- Excluded or exclusion means—
mination of guilt of a criminal offense (a) That a person or commodity is
by any court of competent jurisdiction, prohibited from being a participant in
whether entered upon a verdict or plea, covered transactions, whether the per-
including a plea of nolo contendere; or son has been suspended; debarred; pro-
(b) Any other resolution that is the posed for debarment under 48 CFR part
functional equivalent of a judgment, 9, subpart 9.4; voluntarily excluded; or
including probation before judgment (b) The act of excluding a person.
and deferred prosecution. A disposition
without the participation of the court § 29.950 Excluded Parties List System
is the functional equivalent of a judg-
Excluded Parties List System (EPLS)
ment only if it includes an admission
means the list maintained and dissemi-
of guilt.
nated by the General Services Adminis-
§ 29.930 Debarment. tration (GSA) containing the names
and other information about persons
Debarment means an action taken by who are ineligible. The EPLS system
a debarring official under subpart H of includes the printed version entitled,
this part to exclude a person from par- ‘‘List of Parties Excluded or Disquali-
ticipating in covered transactions and fied from Federal Procurement and
transactions covered under the Federal Nonprocurement Programs,’’ so long as
Acquisition Regulation (48 CFR chap- published.
ter 1). A person so excluded is debarred.
§ 29.955 Indictment.
§ 29.935 Debarring official.
Indictment means an indictment for a
(a) Debarring official means an agency
criminal offense. A presentment, infor-
official who is authorized to impose de-
mation, or other filing by a competent
barment. A debarring official is ei-
authority charging a criminal offense
ther—
shall be given the same effect as an in-
(1) The agency head; or
dictment.
(2) An official designated by the
agency head. § 29.960 Ineligible or ineligibility.
(b) For DOT ‘‘debarring official’’
means the designated head of a DOT Ineligible or ineligibility means that a
operating administration, who may person or commodity is prohibited
delegate any of his or her functions from covered transactions because of
under this part and authorize succes- an exclusion or disqualification.
sive delegations.
§ 29.965 Legal proceedings.
§ 29.940 Disqualified. Legal proceedings means any criminal
Disqualified means that a person is proceeding or any civil judicial pro-
prohibited from participating in speci- ceeding, including a proceeding under
fied Federal procurement or non- the Program Fraud Civil Remedies Act
procurement transactions as required (31 U.S.C. 3801–3812), to which the Fed-
under a statute, Executive order (other eral Government or a State or local
383
government or quasi-governmental au- (b) A consultant or other person,

thority is a party. The term also in- whether or not employed by the partic-
cludes appeals from those proceedings. ipant or paid with Federal funds, who—
(1) Is in a position to handle Federal
§ 29.970 Nonprocurement transaction. funds;
(a) Nonprocurement transaction means (2) Is in a position to influence or
any transaction, regardless of type (ex- control the use of those funds; or,
cept procurement contracts), includ- (3) Occupies a technical or profes-
ing, but not limited to the following: sional position capable of substantially
(1) Grants. influencing the development or out-
(2) Cooperative agreements. come of an activity required to perform
(3) Scholarships. the covered transaction.
(4) Fellowships.
(5) Contracts of assistance. § 29.1000 Respondent.
(6) Loans.
(7) Loan guarantees. Respondent means a person against
(8) Subsidies. whom an agency has initiated a debar-
(9) Insurances. ment or suspension action.
(10) Payments for specified uses.
§ 29.1005 State.
(11) Donation agreements.
(b) A nonprocurement transaction at (a) State means—
any tier does not require the transfer (1) Any of the states of the United
of Federal funds. States;
(2) The District of Columbia;
§ 29.975 Notice. (3) The Commonwealth of Puerto
Notice means a written communica- Rico;
tion served in person, sent by certified (4) Any territory or possession of the
mail or its equivalent, or sent elec- United States; or
tronically by e-mail or facsimile. (See (5) Any agency or instrumentality of
§ 29. 615.) a state.
§ 29.980 Participant. (b) For purposes of this part, State
does not include institutions of higher
Participant means any person who education, hospitals, or units of local
submits a proposal for or who enters government.
into a covered transaction, including
an agent or representative of a partici- § 29.1010 Suspending official.
pant.
(a) Suspending official means an agen-
§ 29.985 Person. cy official who is authorized to impose
suspension. The suspending official is
Person means any individual, cor-
either:
poration, partnership, association, unit
of government, or legal entity, however (1) The agency head; or
organized. (2) An official designated by the
agency head.
§ 29.990 Preponderance of the evi- (b) For DOT ‘‘suspending official’’
dence. means the designated head of a DOT
Preponderance of the evidence means operating administration, who may
proof by information that, compared delegate any of his or her functions
with information opposing it, leads to under this part and authorize succes-
the conclusion that the fact at issue is sive delegations.
more probably true than not.
§ 29.1015 Suspension.
§ 29.995 Principal. Suspension is an action taken by a
Principal means— suspending official under subpart G of
(a) An officer, director, owner, part- this part that immediately prohibits a
ner, principal investigator, or other person from participating in covered
person within a participant with man- transactions and transactions covered
agement or supervisory responsibilities under the Federal Acquisition Regula-
related to a covered transaction; or tion (48 CFR chapter 1) for a temporary
384
Office of the Secretary of Transportation Pt. 29, App.
period, pending completion of an agen- the terms of a settlement between the

cy investigation and any judicial or ad- person and one or more agencies. Vol-
ministrative proceedings that may untary exclusion must have govern-
ensue. A person so excluded is sus- mentwide effect.
pended. (b) Voluntarily excluded means the
status of a person who has agreed to a
§ 29.1020 Voluntary exclusion or volun-
tarily excluded. voluntary exclusion.
(a) Voluntary exclusion means a per-
son’s agreement to be excluded under Subpart J [Reserved]
APPENDIX TO PART 29—COVERED TRANSACTIONS

385
ER26NO03.000</GPH>
PART 30—DENIAL OF PUBLIC seas bases, installations, and embassies

WORKS CONTRACTS TO SUP- are not subject to this part.
(b) The restrictions imposed by sec-
PLIERS OF GOODS AND SERV- tion 115 of the Airport Safety Act ex-
ICES OF COUNTRIES THAT DENY tend to all projects for which funds are
PROCUREMENT MARKET ACCESS made available by that Act, whether or
TO U.S. CONTRACTORS not the contracts are awarded during
fiscal year 1988. The restrictions apply
Sec. to all contracts entered into under
30.1 Purpose. grants authorized by the Airport Safe-
30.3 Applicability. ty Act.
30.5 Effective dates.
(c) This part applies to projects cov-
30.7 Definitions.
30.9 Citizenship: Direct or indirect control.
ered by section 109(a) of the Continuing
30.11 Use of solicitation provisions and con- Resolution, section 115 of the Airport
tract clauses. Safety Act, or both. Whether one or
30.13 Restrictions on Federal public works the other statute or both apply, the ef-
projects: Certification. fect on the project shall be the same,
30.15 Restrictions on Federal public works subject to paragraph (e) of this section.
projects. (d) In addition to construction, alter-
30.17 Waivers. ation, and repair contracts, the restric-
30.19 Buy American Act. tions of this part cover all architect,
AUTHORITY: 49 U.S.C. 322(a); Containing engineering, and other services related
Resolution on the Fiscal Year 1988 Budget to the preparation and performance of
109(a), Pub. L. 100–202; Airport and Airways construction, alteration, and repair of
Safety and Capacity Expansion Act of 1987, public projects and public works.
115, Pub. L. 100–223.
(e) The restrictions of this part also
SOURCE: 53 FR 19916, June 1, 1988, unless apply to all products used in the con-
otherwise noted. struction, alteration, or repair of pub-
lic projects and public works; Provided,
§ 30.1 Purpose. however, That
The rules in this part implement sec- (1) The restrictions of this part do
tion 109(a) of the Continuing Resolu- not apply to construction equipment or
tion on the Fiscal Year 1988 Budget, vehicles that do not become part of a
Public Law No. 100–202 (signed Decem- delivered structure, product, or project
ber 22, 1987) [the Continuing Resolu- and
tion], and section 115 of the Airport (2) Notwithstanding paragraph (c) of
and Airways Safety and Capacity Ex- this section, the restrictions of section
pansion Act of 1987, Public Law No. 109(a) of the Continuing Resolution do
100–223 (signed December 30, 1987) [the not apply to vehicles to be used by the
Airport Safety Act]. These rules are in- project, including, but not limited to,
tended to give uniform implementation buses, trucks, automobiles, rail rolling
to these statutes throughout DOT pro- stock, and aircraft.
curement and grant programs.
§ 30.5 Effective dates.
§ 30.3 Applicability. The provisions of section 109(a) of the
(a) The restrictions imposed by sec- Continuing Resolution apply to con-
tion 109(a) of the Continuing Resolu- tracts (or new subcontracts under ex-
tion extend to all DOT agencies as well isting contracts, whether or not sub-
as all recipients of DOT funds. The reject to the restriction) entered into
strictions apply to all projects for after December 22, 1987, its date of en-
which funds are obligated or contracts actment, and before October 1, 1988.
or subcontracts are awarded during fis- The provisions of section 115 of the Air-
cal year 1988, including projects and port Safety Act apply to contracts
contracts under all DOT financial as- funded by the Act and entered into
sistance programs. The prohibition ap- after December 30, 1987, its date of en-
plies to public buildings and public actment; the restrictions remain effec-
works projects everywhere in the tive so long as money provided by the
United States or any territory or pos- Airport Safety Act is used. Accord-
session of the United States. U.S. over- ingly, any contracts or subcontracts
386
subject to the restrictions of this part (f) Product of a foreign country means
entered into with contractors or sub- construction materials, i.e., articles,
contractors owned or controlled by materials, and supplies brought to the
citizens of subject countries, as defined construction site for incorporation into
by §§ 30.7 and 30.9 of this part, since De- the public works project. A product is
cember 22, 1987 shall be canceled at no considered to have been produced in a
cost to the Government, subject to the foreign country if more than fifty per-
waiver provisions of § 30.17 of this part. cent of the total cost of the product is
All public works or public buildings allocable to production or manufacture
contracts entered into after December in the foreign country.
22, 1987, shall include, or be modified to (g) Foreign country means a country
include, a provision prohibiting sub- included in the list of countries that
contracting with citizens of subject discriminate against U.S. firms pub-
countries, as defined by §§ 30.7 and 30.9 lished by the U.S.T.R.
of this part.
§ 30.9 Citizenship: Direct or indirect
§ 30.7 Definitions. control.
(a) Funds appropriated for FY 1988 by A contractor, subcontractor, or per-
this resolution or any other law, as used son providing a service shall be consid-
in this part with reference to section ered to be a citizen or national of a for-
109(a) of the Continuing Resolution, eign country, or controlled directly or
means all appropriated and trust funds indirectly by citizens or nationals of a
available to DOT, its modal adminis- foreign country, within the meaning of
tration, or their grantees for expendi- this part.
ture or obligation in fiscal year 1988, (a) If 50 percent or more of the con-
regardless of the fiscal year in which tractor or subcontractor is owned by
the funds were appropriated. one or more citizens or nationals of the
(b) Funds made available by this Act, foreign country;
as used in this part with reference to (b) If the title to 50 percent or more
section 115(a) of the Airport Safety of the stock of the contractor or sub-
Act, means all funds, including trust contractor is held subject to trust or fi-
funds, made available to DOT, its duciary obligation in favor of one or
modal administrations, or their grant- more citizens or nationals of the for-
ees by that Act, whether or not the eign country;
contracts to be funded are awarded (c) If 50 percent or more of the voting
during fiscal year 1988. power in the contractor or subcon-
(c) Contractor and subcontractor tractor is vested in or exercisable on
means any person, other than a sup- behalf of one or more citizens or na-
plier of products, performing any archi- tionals of the foreign country;
tectural, engineering, or other service (d) In the case of a partnership, if any
directly related to the preparation for general partner is a citizen or national
or performance of the construction, al- of the foreign country;
teration, or repair of any public build- (e) In the case of a corporation, if the
ing or public work in the United States number of its directors necessary to
or any territory or possession of the constitute a quorum are citizens of the
United States. foreign country or the corporation is
(d) Contractor or subcontractor of a for- organized under the laws of the foreign
eign country means any contractor or country or any subdivision, territory,
subcontractor that is a citizen or na- or possession thereof; or
tional of a foreign country, or is con- (f) In the case of a contractor or sub-
trolled directly or indirectly by one or contractor that is a joint venture, if
more citizens or nationals of a foreign any participant meets any of the cri-
country. teria in paragraphs (a) through (e) of
(e) Service of a foreign country means this section.
any service provided by a person that
is a citizen or national of a foreign § 30.11 Use of solicitation provisions
country, or is controlled by one or and contract clauses.
more citizens or nationals of a foreign (a) Unless the President or the Sec-
country. retary waives the restrictions imposed
387
by section 109(a) of the Continuing Res- vision similar to that § 30.13 of this
olution in accordance with § 30.17 of part, but did not, shall be amended to
this part, the contracting officer shall include the provision if the contract
insert a clause similar to the clause at has not yet been awarded.
§ 30.15, Restrictions on Federal Public
Works Projects, in contractions and so- § 30.13 Restrictions on Federal public
licitations, if— works projects: Certification.
(1) The contract is awarded on or As prescribed in § 30.11(c) of this part,
after December 22, 1987, and before Oc- the contracting officer shall insert the
tober 1, 1988; and following provision in solicitations
(2) The contract obligates funds ap- containing the clause at § 30.15, Restric-
propriated for use in FY 1988 by the tions on Federal Public Works Projects:
Continuing Resolution or any other
law; and RESTRICTIONS ON FEDERAL PUBLIC
(3) The contract is for the acquisition WORKS PROJECTS—CERTIFICATION
of construction, alteration and repair, (a) Definitions. The definitions pertaining
architectural, engineering, or other to this provision are those that are set forth
services directly related to the prepa- in 49 CFR 30.7–30.9.
ration for, or performance of, construc- (b) Certification. By signing this solicita-
tion, alteration, and repair for Federal tion, the Offeror certifies that with respect
public works projects inside the United to this solicitation, and any resultant con-
States, U.S. territories, or U.S. posses- tract, the Offeror—
(1) Is [ ] is not [ ] a contractor of a for-
sions.
eign country included on the list of countries
(b) Unless the Secretary waives the that discriminated against U.S. firms pub-
restrictions imposed by section 115 of lished by the Office of the United States
the Airport Safety Act in accordance Trade Representative (U.S.T.R.);
with § 30.17 of this part, the contracting (2) Has [ ] has not [ ] entered into any
officer shall insert a clause similar to contract or subcontract with a subcon-
the clause at § 30.15, Restrictions on tractor of a foreign country included on the
Federal Public Works Projects, in con- list of countries that discriminate against
U.S. firms published by the U.S.T.R.; and
tracts and solicitations relating to any
(3) Has [ ] has not [ ] entered into any
project for which funds, including subcontract for any product to be used on
grant funds, are made available by that the Federal public works project that is pro-
Act, whether or not the contract is duced in a foreign country included on the
awarded during fiscal year 1988. list of countries that discriminate against
(c) Any contract already awarded U.S. firms published by the U.S.T.R.
that should have contained the clause (c) Applicability of 18 U.S.C. 1001. This cer-
prescribed in paragraph (a) or (b) of tification in this solicitation provision con-
cerns a matter within the jurisdiction of an
this section, but did not, shall be modi-
agency of the United States and the making
fied to include the clause. In the event of a false, fictitious, or fraudulent certifi-
that the contracting officer is unable cation may render the maker subject to
to modify such contract, the contract prosecution under Title 18, United States
shall be canceled at no cost to the Gov- Code, Section 1001.
ernment, unless a waiver is granted in (d) Notice. The Offeror shall provide imme-
accordance with § 30.17 of this part. diate written notice to the Contracting Offi-
(d) Contracting officers shall insert a cer if, at any time prior to contract award,
the Offeror learns that its certification was
provision similar to the solicitation
erroneous when submitted or has become er-
provision at § 30.13 of this part, Restric- roneous by reason of changed circumstances.
tions on Public Works Projects—Cer- (e) Restrictions on contract award. No con-
tification, in solicitations containing tract will be awarded to an offeror (1) who is
the clause at § 30.15 of this part, Re- owned or controlled by one or more citizens
strictions on Federal Public Works or nationals of a foreign country included on
Projects. the list of countries that discriminate
(e) Any solicitation issued before De- against U.S. firms published by the U.S.T.R.
or (2) whose subcontractors are owned or
cember 22, 1987, that will result in the
controlled by one or more citizens or nation-
award of a contract covered by para- als of a foreign country on such U.S.T.R. list
graph (a) of this section after Decem- or (3) who incorporates in the public works
ber 22, 1987, and before October 1, 1988, project any product of a foreign country on
and that should have contained a pro- such U.S.T.R. list; unless a waiver to these
388
restrictions is granted by the President of knowledge that the certification is erro-
the United States or the Secretary of Trans- neous.
portation. (Notice of the granting of a waiver (e) Erroneous certification. The certifi-
will be published in the FEDERAL REGISTER.) cation in paragraph (b) of the provision enti-
(f) System. Nothing contained in the fore- tled ‘‘Restriction on Federal Public Works
going shall be construed to require establish- Projects—Certification,’’ is a material rep-
ment of a system of records in order to
resentation of fact upon which reliance was
render, in good faith, the certification re-
placed when making the award. If it is later
quired by paragraph (b) of this provision.
The knowledge and information of an Offeror determined that the Contractor knowingly
is not required to exceed that which is nor- rendered an erroneous certification, in addi-
mally possessed by a prudent person in the tion to other remedies available to the Gov-
ordinary course of business dealings. ernment, the Contracting Officer may cancel
(g) Subcontracts. The Offeror agrees that, this contract for default at no cost to the
if awarded a contract resulting from this so- Government.
licitation, it will incorporate this solicita- (f) Cancellation. Unless the restrictions of
tion provision, including this paragraph (g), this clause are waived as provided in para-
in each solicitation issued under such con- graph (e) of the provision entitled ‘‘Restric-
tract. tion on Federal Public Works Projects—Cer-
tification,’’ if the Contractor knowingly en-
(End of provision) ters into a subcontract with a subcontractor
that is a subcontractor of a foreign country
§ 30.15 Restrictions on Federal public included on the list of countries that dis-
works projects. criminate against U.S. firms published by
The contracting officer shall insert the U.S.T.R. or that supplies any product for
the following clause in solicitations use on the Federal public works project
and contracts as prescribed at § 30.11(a) under this contract of a foreign country in-
through (b) of this part: cluded on the list of countries that discrimi-
nate against U.S. firms published by the
RESTRICTIONS ON FEDERAL PUBLIC U.S.T.R., the Contracting Officer may cancel
WORKS PROJECTS this contract for default, at no cost to the
Government.
(a) Definitions. The definitions pertaining (g) Subcontracts. The Contractor shall in-
to this clause are those that are set forth in corporate this clause, without modification,
49 CFR 30.7–30.9 including this paragraph (g) in all solicita-
(b) General. This clause implements the tions and subcontracts under this contract:
procurement provisions contained in the
Continuing Resolution on the Fiscal Year
1988 Budget, Public Law No. 100–202, and the
CERTIFICATION REGARDING RESTRIC-
Airport and Airway Safety and Capacity Ex- TIONS ON FEDERAL PUBLIC WORKS
pansion Act of 1987, Public Law No. 100–223. PROJECTS—SUBCONTRACTORS
(c) Restrictions. The Contractor shall not
knowingly enter into any subcontract under (1) The Offeror/Contractor, by submission
this contract: (1) With a subcontractor of a of an offer and/or execution of a contract cer-
foreign country included on the list of coun- tifies that the Offeror/Contractor is (i) not
tries that discriminate against U.S. firms an Offeror/Contractor owned or controlled by
published by the United States Trade Rep- one or more citizens or nationals of a foreign
resentative (U.S.T.R.); or (2) for the supply country included on the list of countries
of any product for use on the Federal Public that discriminate against U.S. firms pub-
works project under this contract that is lished by the United States Trade Represent-
produced or manufactured in a foreign coun- ative (U.S.T.R.) or (2) not supplying any
try included on the list of countries that dis- product for use on the Federal public works
criminate against U.S. firms published by project that is produced or manufactured in
the U.S.T.R. a foreign country included on the list of for-
(d) Certification. The Contractor may rely eign countries that discriminate against U.S.
upon the certification of a prospective sub- firms published by the U.S.T.R.
contractor that it is not a subcontractor of a
foreign country included on the list of coun-
tries that discriminates against U.S. firms
published by the U.S.T.R. and that products
supplied by such subcontractor for use on
the Federal public works project under this
contract are not products of a foreign coun-
try included on the list of countries that dis-
criminate against U.S. firms published by
the U.S.T.R., unless the contractor has
389
THIS CERTIFICATION CONCERNS A (End of clause)

MATTER WITHIN THE JURISDIC-
TION OF AN AGENCY OF THE § 30.17 Waivers.
UNITED STATES AND THE MAK- (a) The Secretary may waive the re-
ING OF A FALSE FICTITIOUS, OR strictions imposed by section 115 of the
FRAUDULENT CERTIFICATION Airport Safety Act on the use of a
MAY RENDER THE MAKER SUB-
product or service in a project if the
JECT TO PROSECUTION UNDER
TITLE 18, UNITED STATES CODE, Secretary determines that:
SECTION 1001 (1) Application of the restriction to
such product, service, or project would
(2) The Offeror shall provide immediate not be in the public interest;
written notice to the Contractor if, at any
(2) Products or services of the same
time, the Offeror learns that its certification
was erroneous by reason of changed cir- class or kind are not produced or of-
cumstances. fered in the United States, or in any
(3) The Contractor shall not knowingly foreign country that is not listed by
enter into any subcontract under this con- the U.S.T.R. in sufficient and reason-
tract: (i) with a subcontractor of a foreign able available quantities and of a satis-
country included on the list of countries
that discriminate against U.S. firms pub- factory quality; or
lished by the U.S.T.R.; or (ii) for the supply (3) Exclusion of such product or serv-
of any product for use on the Federal public ice from the project would increase the
works project under this contract that is cost of the overall project contract by
produced or manufactured in a foreign coun- more than 20 percent.
try included on the list of countries that dis-
criminate against U.S. firms published by (b) The President or the Secretary
the U.S.T.R. The contractor may rely upon may waive the restrictions imposed by
the certification in paragraph (g)(1) of this section 109(a) of the Continuing Resolu-
clause unless it has knowledge that the cer- tion with respect to an individual con-
tification is erroneous. tract if the President or the Secretary
(4) Unless the restrictions of this clause
have been waived under the contract for the determines that such action is nec-
Federal public works project, if a contractor essary in the public interest, on a con-
knowingly enters into a subcontract with a tract-by-contract basis. The Secretary
subcontractor that is a subcontractor of a may apply the factors listed in para-
foreign country included on the list of coun- graphs (a)(2) and (a)(3) of this section
tries that discriminate against U.S. firms
published by the U.S.T.R. or that supplies in determining whether a waiver is in
any product for use on the Federal public the public interest.
works project under this contract that is (c) The authority of the President or
produced or manufactured in a foreign coun- the Secretary to issue waivers may not
try included on the list of countries that dis- be delegated. The Department shall
criminate against U.S. firms published by
the U.S.T.R., the Government Contracting publish notice of any waiver granted
Officer may direct, through higher-tier con- pursuant to this part by the President
tractors, cancellation of this contract at no or the Secretary in the FEDERAL REG-
cost to the Government. ISTER within ten days. The notice shall
(5) Definitions. The definitions pertaining describe in detail the contract in-
to this clause are those that are set forth in
volved, the specific reasons for grant-
49 CFR 30.7–30.9.
(6) The certification in paragraph (g)(1) of ing the waiver, and how the waiver
this clause is a material representation of meets the criteria of this section.
fact upon which reliance was placed when
making the award. If it is later determined § 30.19 Buy American Act.
that the Contractor knowingly rendered an
erroneous certification, in addition to other
The restrictions of this part are in
remedies available to the Government, the addition to any other restrictions con-
Government Contracting Officer may direct, tained in Federal law, including the
through higher-tier Contractors, cancella- Buy American Act, 41 U.S.C. 10a–10d,
tion of this subcontract at no cost to the and Buy American provisions in legis-
Government. lation governing DOT provisions. Nor-
(7) The Contractor agrees to insert this
clause, without modification, including this mal evaluation methods for imple-
paragraph, in all solicitations and sub- menting the provisions of the Buy
contracts under this clause.
390
American Act in contracts for the con- AUTHORITY: 31 U.S.C. 3801–3812.

struction, alteration, or repair of pub- SOURCE: 53 FR 881, Jan. 14, 1988, unless oth-
lic buildings or public works will be ap- erwise noted.
plied after determining the offeror’s el-
igible for award on the basis of applica- § 31.1 Basis and purpose.
tion of the provisions in this part. (a) Basis. This part implements the
Program Fraud Civil Remedies Act of
PART 31—PROGRAM FRAUD CIVIL 1986, Public Law No. 99–509, sections
REMEDIES 6101–6104, 100 Stat. 1874 (October 21,
1986), to be codified at 31 U.S.C. 3801–
Sec. 3812. 31 U.S.C. 3809 of the statute re-
31.1 Basis and purpose. quires each authority head to promul-
31.2 Definitions. gate regulations necessary to imple-
31.3 Basis for civil penalties and assess-
ment the provisions of the statute.
ments.
31.4 Investigation. (b) Purpose. This part (1) establishes
31.5 Review by the reviewing official. administrative procedures for imposing
31.6 Prerequisites for issuing a complaint. civil penalties and assessments against
31.7 Complaint. persons who make, submit, or present,
31.8 Service of complaint. or cause to be made, submitted, or pre-
31.9 Answer. sented, false, fictitious, or fraudulent
31.10 Default upon failure to answer.
31.11 Referral of complaint and answer to
claims or written statements to the au-
the ALJ. thority or to certain others, and (2)
31.12 Notice of hearing. specifies the hearing and appeal rights
31.13 Parties to the hearing. of persons subject to allegations of li-
31.14 Separation of functions. ability for such penalties and assess-
31.15 Ex parte contacts. ments.
31.16 Disqualification of reviewing official
or ALJ. § 31.2 Definitions.
31.17 Rights of parties.
31.18 Authority of the ALJ. ALJ means an Administrative Law
31.19 Prehearing conferences. Judge in the authority appointed pur-
31.20 Disclosure of documents. suant to 5 U.S.C. 3105 or detailed to the
31.21 Discovery. authority pursuant to 5 U.S.C. 3344.
31.22 Exchange of witness lists, statements,
Authority means the Department of
and exhibits.
31.23 Subpoenas for attendance at hearing. Transportation.
31.24 Protective order. Authority head means the Assistant
31.25 Fees. Secretary or Deputy Assistant Sec-
31.26 Filing, form, and service of papers. retary for Budget and Programs, De-
31.27 Computation of time. partment of Transportation.
31.28 Motions. Benefit means, in the context of
31.29 Sanctions.
‘‘statement,’’ anything of value, in-
31.30 The hearing and burden of proof.
31.31 Determining the amount of penalties cluding but not limited to any advan-
and assessments. tage, preference, privilege, license, per-
31.32 Location of hearing. mit, favorable decision, ruling, status,
31.33 Witnesses. or loan guarantee.
31.34 Evidence. Claim means any request, demand, or
31.35 The record. submission—
31.36 Post-hearing briefs.
(a) Made to the authority for prop-
31.37 Initial decision.
31.38 Reconsideration of initial decision. erty, services, or money (including
31.39 Appeal to authority head. money representing grants, loans, in-
31.40 Stays ordered by the Department of surance, or benefits);
Justice. (b) Made to a recipient of property,
31.41 Stay pending appeal. services, or money from the authority
31.42 Judicial review. or to a party to a contract with the au-
31.43 Collection of civil penalties and as- thority—
sessments.
31.44 Right to administrative offset.
(1) For property or services if the
31.45 Deposit in Treasury of United States. United States—
31.46 Compromise or settlement. (i) Provided such property or serv-
31.47 Limitations. ices;
391
(ii) Provided any portion of the funds mitted. As the context requires, making
for the purchase of such property or or made, shall likewise include the cor-
services; or responding forms of such terms.
(iii) Will reimburse such recipient or Person means any individual, part-
party for the purchase of such property nership, corporation, association, or
or services; or private organization, and includes the
(2) For the payment of money (in- plural of that term.
cluding money representing grants, Representative means an attorney who
loans, insurance, or benefits) if the is a member in good standing of the bar
United States— of any State, Territory, or possession
(i) Provided any portion of the money of the United States or of the District
requested or demanded; or of Columbia or the Commonwealth of
(ii) Will reimburse such recipient or Puerto Rico. This definition is not in-
party for any portion of the money tended to foreclose pro se appearances.
paid on such request or demand; or An individual may appear for himself
(c) Made to the authority which has
or herself, and a corporation or other
the effect of decreasing an obligation
entity may appear by an owner, officer,
to pay or account for property, serv-
or employee of the corporation or enti-
ices, or money.
ty.
Complaint means the administrative
complaint served by the reviewing offi- Reviewing official means the Deputy
cial on the defendant under § 31.7. General Counsel of the Department of
Defendant means any person alleged Transportation, or other officer or em-
in a complaint under § 31.7 to be liable ployee of the Department who is des-
for a civil penalty or assessment under ignated by the Deputy General Counsel
§ 31.3. and eligible under 31 U.S.C. 3801(a)(8).
Government means the United States Statement means any representation,
Government. certification, affirmation, document,
Individual means a natural person. record, or accounting or bookkeeping
Initial decision means the written de- entry made—
cision of the ALJ required by §§ 31.10 or (a) With respect to a claim or to ob-
31.37 and includes a revised initial deci- tain the approval or payment of a
sion issued following a remand or a mo- claim (including relating to eligibility
tion for reconsideration. to make a claim); or
Investigating official means the In- (b) With respect to (including relat-
spector General of the Department of ing to eligibility for)—
Transportation or an officer or em- (1) A contract with, or bid or pro-
ployee of the Office of Inspector Gen- posal for a contract with; or
eral designated by the Inspector Gen- (2) A grant, loan, or benefit from,
eral and serving in a position for which
the rate of basic pay is not less than the authority, or any State, political
the minimum rate of basic pay for subdivision of a State, or other party,
grade GS–16 under the General Sched- if the United States Government pro-
ule. vides any portion of the money or prop-
Knows or has reason to know, means erty under such contract or for such
that a person, with respect to a claim grant, loan, or benefit, or if the Gov-
or statement— ernment will reimburse such State, po-
(a) Has actual knowledge that the litical subdivision, or party for any
claim or statement is false, fictitious, portion of the money or property under
or fraudulent; such contract or for such grant, loan,
(b) Acts in deliberate ignorance of or benefit.
the truth or falsity of the claim or
§ 31.3 Basis for civil penalties and as-
statement; or
sessments.
(c) Acts in reckless disregard of the
truth or falsity of the claim or state- (a) Claims. (1) Except as provided in
ment. paragraph (c) of this section, any per-
Makes, wherever it appears, shall in- son who makes a claim that the person
clude the terms presents, submits, and knows or has reason to know—
causes to be made, presented, or sub- (i) Is false, fictitious, or fraudulent;
392
(ii) Includes or is supported by any (i) The person knows or has reason to
written statement which asserts a ma- know—
terial fact which is false, fictitious, or (A) Asserts a material fact which is
fraudulent; false, fictitious, or fraudulent; or
(iii) Includes or is supported by any (B) Is false, fictitious, or fraudulent
written statement that— because it omits a material fact that
(A) Omits a material fact; the person making the statement has a
(B) Is false, fictitious, or fraudulent duty to include in such statement; and
as a result of such omission; and (ii) Contains, or is accompanied by,
(C) Is a statement in which the per- an express certification or affirmation
son making such statement has a duty of the truthfulness and accuracy of the
to include such material fact; or contents of the statement, shall be sub-
(iv) Is for payment for the provision ject, in addition to any other remedy
of property or services which the per- that may be prescribed by law, to a
son has not provided as claimed, shall civil penalty of not more than $5,500. 2
be subject, in addition to any other (2) Each written representation, cer-
remedy that may be prescribed by law, tification, or affirmation constitutes a
to a civil penalty of not more than separate statement.
$5,500 for each such claim. 1 (3) A statement shall be considered
(2) Each voucher, invoice, claim made to the authority when such state-
form, or other individual request or de- ment is actually made to an agent, fis-
mand for property, services, or money cal intermediary, or other entity, in-
constitutes a separate claim. cluding any State or political subdivi-
(3) A claim shall be considered made sion thereof, acting for or on behalf of
to the authority, recipient, or party the authority.
when such claim is actually made to an (c) No proof of specific intent to de-
agent, fiscal intermediary, or other en- fraud is required to establish liability
tity, including any State or political under this section.
subdivision thereof, acting for or on be- (d) In any case in which it is deter-
half of the authority, recipient, or mined that more than one person is lia-
party. ble for making a claim or statement
(4) Each claim for property, services, under this section, each such person
or money is subject to a civil penalty may be held liable for a civil penalty
regardless of whether such property, under this section.
services, or money is actually delivered (e) In any case in which it is deter-
or paid. mined that more than one person is lia-
(5) If the Government has made any ble for making a claim under this sec-
payment (including transferred prop- tion on which the Government has
erty or provided services) on a claim, a made payment (including transferred
person subject to a civil penalty under property or provided services), an as-
paragraph (a)(1) of this section shall sessment may be imposed against any
also be subject to an assessment of not such person or jointly and severally
more than twice the amount of such against any combination of such per-
claim or that portion thereof that is sons.
determined to be in violation of para-
graph (a)(1) of this section. Such as- [53 FR 881, Jan. 14, 1988, as amended at 62 FR
sessment shall be in lieu of damages 6720, Feb. 13, 1997]
sustained by the Government because
of such claim. § 31.4 Investigation.
(b) Statements. (1) Except as provided (a) If an investigating official con-
in paragraph (c) of this section, any cludes that a subpoena pursuant to the
person who makes a written statement authority conferred by 31 U.S.C. 3804(a)
that— is warranted—
1 As adjusted in accordance with the Fed- 2 As adjusted in accordance with the Fed-
eral Civil Penalties Inflation Adjustment eral Civil Penalties Inflation Adjustment
Act of 1990 (Pub. L. 101–140), as amended by Act of 1990 (Pub. L. 101–140), as amended by
the Debt Collection Improvement Act of 1996 the Debt Collection Improvement Act of 1996
(Pub. L. 104–143, section 31001). (Pub. L. 104–143, section 31001).
393
(1) The subpoena so issued shall no- (3) A description of the claims or
tify the person to whom it is addressed statements upon which the allegations
of the authority under which the sub- of liability are based;
poena is issued and shall identify the (4) An estimate of the amount of
records or documents sought; money or the value of property, serv-
(2) The investigating official may ices, or other benefits requested or de-
designate a person to act on his or her manded in violation of § 31.3 of this
behalf to receive the documents part;
sought; and (5) A statement of any exculpatory or
(3) The person receiving such sub- mitigating circumstances that may re-
poena shall be required to tender to the late to the claims or statements known
investigating official or the person des- by the reviewing official or the inves-
ignated to receive the documents a cer- tigating official; and
tification that the documents sought (6) A statement that there is a rea-
have been produced, or that such docu- sonable prospect of collecting an ap-
ments are not available and the rea- propriate amount of penalties and as-
sons therefor, or that such documents, sessments.
suitably identified, have been withheld
§ 31.6 Prerequisites for issuing a com-
based upon the assertion of an identi- plaint.
fied privilege.
(b) If the investigating official con- (a) The reviewing official may issue a
cludes that an action under the Pro- complaint under § 31.7 only if—
gram Fraud Civil Remedies Act may be (1) The Department of Justice ap-
warranted, the investigating official proves the issuance of a complaint in a
shall submit a report containing the written statement described in 31
findings and conclusions of such inves- U.S.C. 3803(b)(1), and
tigation to the reviewing official. (2) In the case of allegations of liabil-
(c) Nothing in this section shall pre- ity under § 31.3(a) with respect to a
clude or limit an investigating offi- claim, the reviewing official deter-
cial’s discretion to refer allegations di- mines that, with respect to such claim
rectly to the Department of Justice for or a group of related claims submitted
suit under the False Claims Act or at the same time such claim is sub-
other civil relief, or to defer or post- mitted (as defined in paragraph (b) of
pone a report or referral to the review- this section), the amount of money or
ing official to avoid interference with a the value of property or services de-
criminal investigation or prosecution. manded or requested in violation of
§ 31.3(a) does not exceed $150,000.
(d) Nothing in this section modifies
(b) For the purposes of this section, a
any responsibility of an investigating
related group of claims submitted at
official to report violations of criminal
the same time shall include only those
law to the Attorney General.
claims arising from the same trans-
§ 31.5 Review by the reviewing official. action (e.g., grant, loan, application, or
contract) that are submitted simulta-
(a) If, based on the report of the in- neously as part of a single request, de-
vestigating official under § 31.4(b), the mand, or submission.
reviewing official determines that (c) Nothing in this section shall be
there is adequate evidence to believe construed to limit the reviewing offi-
that a person is liable under § 31.3 of cial’s authority to join in a single com-
this part, the reviewing official shall plaint against a person’s claims that
transmit to the Attorney General a are unrelated or were not submitted si-
written notice of the reviewing offi- multaneously, regardless of the
cial’s intention to issue a complaint amount of money, or the value of prop-
under § 31.7. erty or services, demanded or re-
(b) Such notice shall include— quested.
(1) A statement of the reviewing offi-
cial’s reasons for issuing a complaint; § 31.7 Complaint.
(2) A statement specifying the evi- (a) On or after the date the Depart-
dence that supports the allegations of ment of Justice approves the issuance
liability; of a complaint in accordance with 31
394
U.S.C. 3803(b)(1), the reviewing official copy in the United States mail, postage
may serve a complaint on the defend- prepaid and addressed to the reviewing
ant, as provided in § 31.8. official. Service of an answer is com-
(b) The complaint shall state— plete upon such delivery or mailing. An
(1) The allegations of liability answer shall be deemed to be a request
against the defendant, including the for hearing.
statutory basis for liability, an identi- (b) In the answer, the defendant—
fication of the claims or statements (1) Shall admit or deny each of the
that are the basis for the alleged liabil- allegations of liability made in the
ity, and the reasons why liability alleg- complaint;
edly arises from such claims or state- (2) Shall state any defense on which
ments; the defendant intends to rely;
(2) The maximum amount of pen- (3) May state any reasons why the de-
alties and assessments for which the fendant contends that the penalties
defendant may be held liable; and assessments should be less than
(3) Instructions for filing an answer the statutory maximum; and
to request a hearing, including a spe- (4) Shall state the name, address, and
cific statement of the defendant’s right telephone number of the person author-
to request a hearing by filing an an- ized by the defendant to act as defend-
swer and to be represented by a rep- ant’s representative, if any.
resentative; and (c) If the defendant is unable to file
(4) That failure to file an answer an answer meeting the requirements of
within 30 days of service of the com- paragraph (b) of this section within the
plaint will result in the imposition of time provided, the defendant may, be-
the maximum amount of penalties and fore the expiration of 30 days from
assessments without right to appeal, as service of the complaint, serve on the
provided in § 31.10. reviewing official a general answer de-
(c) At the same time the reviewing nying liability and requesting a hear-
official serves the complaint, he or she ing, and a request for an extension of
shall serve the defendant with a copy time within which to serve an answer
of these regulations. meeting the requirements of paragraph
(b) of this section. The reviewing offi-
§ 31.8 Service of complaint. cial shall file promptly the complaint,
(a) Service of a complaint must be the general answer denying liability,
made by certified or registered mail or and the request for an extension of
by delivery in any manner authorized time as provided in § 31.11. For good
by Rule 4(d) of the Federal Rules of cause shown, the ALJ may grant the
Civil Procedure. Service of a complaint defendant up to 30 additional days from
is complete upon receipt. the original due date within which to
(b) Proof of service, stating the name serve an answer meeting the require-
and address of the person on whom the ments of paragraph (b) of this section.
complaint was served, and the manner
and date of service, may be made by— § 31.10 Default upon failure to answer.
(1) Affidavit of the individual serving (a) If the defendant does not answer
the complaint by delivery; within the time prescribed in § 31.9(a),
(2) A United States Postal Service re- the reviewing official may refer the
turn receipt card acknowledging re- complaint to an ALJ by filing the com-
ceipt; or plaint and a statement that defendant
(3) Written acknowledgment of re- has failed to answer on time.
ceipt by the defendant or his or her (b) Upon the referral of the com-
representative. plaint, the ALJ shall promptly serve
on defendant in the manner prescribed
§ 31.9 Answer. in § 31.8, a notice that an initial deci-
(a) The defendant may request a sion will be issued under this section.
hearing by serving an answer on the re- (c) In addition, the ALJ shall assume
viewing official within 30 days of serv- the facts alleged in the complaint to be
ice of the complaint. Service of an an- true, and, if such facts establish liabil-
swer shall be made by delivering a copy ity under § 31.3, the ALJ shall issue an
to the reviewing official or by placing a initial decision imposing the maximum
395
amount of penalties and assessments (l) If the authority head decides that
allowed under the statute. the defendant’s failure to answer on
(d) Except as otherwise provided in time is not excused, the authority head
this section, by failing to answer on shall reinstate the initial decision of
time, the defendant waives any right to the ALJ, which shall become final and
further review of the penalties and as- binding upon the parties 30 days after
sessments imposed under paragraph (c) the authority head issues such deci-
of this section, and the initial decision sion.
shall become final and binding upon
the parties 30 days after it is issued. § 31.11 Referral of complaint and an-
(e) If, before such an initial decision swer to the ALJ.
becomes final, the defendant files a Upon receipt of an answer, the re-
motion seeking to reopen on the viewing official shall refer the matter
grounds that extraordinary cir- to an ALJ by filing the complaint and
cumstances prevented the defendant answer in accordance with § 31.26.
from answering, the initial decision
shall be stayed pending the ALJ’s deci- § 31.12 Notice of hearing.
sion on the motion. (a) When the ALJ receives the com-
(f) If, on such motion, the defendant plaint and answer, the ALJ shall
can demonstrate extraordinary cir- promptly serve a notice of hearing
cumstances excusing the failure to an- upon the defendant in the manner pre-
swer on time, the ALJ shall withdraw scribed by § 31.8. At the time, the ALJ
the initial decision in paragraph (c) of shall send a copy of such notice to the
this section, if such a decision has been representative for the Government and
issued, and shall grant the defendant shall file a copy with the Docket Clerk.
an opportunity to answer the com- (b) Such notice shall include—
plaint. (1) The tentative time and place, and
(g) A decision of the ALJ denying a the nature of the hearing;
defendant’s motion under paragraph (e) (2) The legal authority and jurisdic-
of this section is not subject to recon- tion under which the hearing is to be
sideration under § 31.38. held;
(h) The defendant may appeal to the
(3) The matters of fact and law to be
authority head the decision denying a
asserted;
motion to reopen by filing a notice of
(4) A description of the procedures for
appeal in accordance with § 31.26 within
the conduct of the hearing;
15 days after the ALJ denies the mo-
(5) The name, address, and telephone
tion. The timely filing of a notice of
number of the representative of the
appeal shall stay the initial decision
Government and of the defendant, if
until the authority head decides the
any; and
issue.
(i) If the defendant files a timely no- (6) Such other matters as the ALJ
tice of appeal, the Docket Clerk shall deems appropriate.
forward two copies of the notice of ap- § 31.13 Parties to the hearing.
peal to the authority head, and shall
forward or make available the record (a) The parties to the hearing shall
of the proceeding to the authority be the defendant and the authority.
head. (b) Pursuant to 31 U.S.C. 3730(c)(5), a
(j) The authority head shall decide private plaintiff under the False
expeditiously whether extraordinary Claims Act may participate in these
circumstances excuse the defendant’s proceedings to the extent authorized
failure to answer on time based solely by the provisions of that Act.
on the record before the ALJ.
(k) If the authority head decides that § 31.14 Separation of functions.
extraordinary circumstances excused (a) The investigating official, the re-
the defendant’s failure to answer on viewing official, and any employee or
time, the authority head shall remand agent of the authority who takes part
the case to the ALJ with instructions in investigating, preparing, or pre-
to grant the defendant an opportunity senting a particular case may not, in
to answer. such case or a factually related case—
396
(1) Participate in the hearing as the (e)(1) If the ALJ determines that a
ALJ; reviewing official is disqualified, the
(2) Participate or advise in the initial ALJ shall dismiss the complaint with-
decision or the review of the initial de- out prejudice.
cision by the authority head, except as (2) If the ALJ disqualifies himself or
a witness or a representative in public herself, the case shall be reassigned
proceedings; or promptly to another ALJ.
(3) Make the collection of penalties (3) If the ALJ denies a motion to dis-
and assessments under 31 U.S.C. 3806. qualify, the authority head may deter-
(b) The ALJ shall not be responsible mine the matter only as part of his or
to, or subject to the supervision or di- her review of the initial decision upon
rection of, the investigating official or appeal, if any.
the reviewing official.
(c) Except as provided in paragraph § 31.17 Rights of parties.
(a) of this section, the representative Except as otherwise limited by this
for the Government may be employed part, all parties may—
anywhere in the authority, including (a) Be accompanied, represented, and
in the offices of either the inves- advised by a representative;
tigating official or the reviewing offi- (b) Participate in any conference
cial. held by the ALJ;
(c) Conduct discovery;
§ 31.15 Ex parte contacts. (d) Agree to stipulations of fact or
No party or person (except employees law, which shall be made part of the
of the ALJ’s office) shall communicate record;
in any way with the ALJ on any mat- (e) Present evidence relevant to the
ter at issue in a case, unless on notice issues at the hearing;
and opportunity for all parties to par- (f) Present and cross-examine wit-
ticipate. This provision does not pro- nesses;
hibit a person or party from inquiring (g) Present oral arguments at the
about the status of a case or asking hearing as permitted by the ALJ; and
routine questions concerning adminis- (h) Submit written briefs and pro-
trative functions or procedures. posed findings of fact and conclusions
of law after the hearing.
§ 31.16 Disqualification of reviewing
official or ALJ. § 31.18 Authority of the ALJ.
(a) A reviewing official or ALJ in a (a) The ALJ shall conduct a fair and
particular case may disqualify himself impartial hearing, avoid delay, main-
or herself at any time. tain order, and assure that a record of
(b) A party may file a motion for dis- the proceeding is made.
qualification of a reviewing official or (b) The ALJ has the authority to—
an ALJ. Such motion shall be accom- (1) Set and change the date, time,
panied by an affidavit alleging personal and place of the hearing upon reason-
bias or other reason for disqualifica- able notice to the parties;
tion. (2) Continue or recess the hearing in
(c) Such motion and affidavit shall be whole or in part for a reasonable period
filed promptly upon the party’s dis- of time;
covery of reasons requiring disquali- (3) Hold conferences to identify or
fication, or such objections shall be simplify the issues, or to consider
deemed waived. other matters that may aid in the ex-
(d) Such affidavit shall state specific peditious disposition of the proceeding;
facts that support the party’s belief (4) Administer oaths and affirma-
that personal bias or other reason for tions;
disqualification exists and the time (5) Issue subpoenas requiring the at-
and circumstances of the party’s dis- tendance of witnesses and the produc-
covery of such facts. It shall be accom- tion of documents at depositions or at
panied by a certificate of the rep- hearings;
resentative of record that it is made in (6) Rule on motions and other proce-
good faith. dural matters;
397
(7) Regulate the scope and timing of (10) Such other matters as may tend
discovery; to expedite the fair and just disposition
(8) Regulate the course of the hearing of the proceedings.
and the conduct of representatives and (d) The ALJ may issue an order con-
parties; taining all matters agreed upon by the
(9) Examine witnesses; parties or ordered by the ALJ at a pre-
(10) Receive, rule on, exclude, or hearing conference.
limit evidence;
(11) Upon motion of a party, take of- § 31.20 Disclosure of documents.
ficial notice of facts; (a) Upon written request to the re-
(12) Upon motion of a party, decide viewing official, the defendant may re-
cases, in whole or in part, by summary view any relevant and material docu-
judgment where there is no disputed ments, transcripts, records, and other
issue of material fact; materials that relate to the allegations
(13) Conduct any conference, argu- set out in the complaint and upon
ment, or hearing on motions in person which the findings and conclusions of
or by telephone; and the investigating official under § 31.4(b)
(14) Exercise such other authority as are based, unless such documents are
is necessary to carry out the respon- subject to a privilege under Federal
sibilities of the ALJ under this part. law. Upon payment of fees for duplica-
(c) The ALJ does not have the au- tion, the defendant may obtain copies
thority to find Federal statutes or reg- of such documents.
ulations invalid.
(b) Upon written request to the re-
§ 31.19 Prehearing conferences. viewing official, the defendant also
may obtain a copy of all exculpatory
(a) The ALJ may schedule prehearing information in the possession of the re-
conferences as appropriate. viewing official or investigating offi-
(b) Upon the motion of any party, the cial relating to the allegations in the
ALJ shall schedule at least one pre- complaint, even if it is contained in a
hearing conference at a reasonable document that would otherwise be
time in advance of the hearing.
privileged. If the document would oth-
(c) The ALJ may use prehearing con- erwise be privileged, only that portion
ferences to discuss the following:
containing exculpatory information
(1) Simplification of the issues; must be disclosed.
(2) The necessity or desirability of (c) The notice sent to the Attorney
amendments to the pleadings, includ-
General from the reviewing official as
ing the need for a more definite state-
described in § 31.5 is not discoverable
ment;
under any circumstances.
(3) Stipulations and admissions of
(d) The defendant may file a motion
fact or as to the contents and authen-
ticity of documents; to compel disclosure of the documents
subject to the provisions of this sec-
(4) Whether the parties can agree to
submission of the case on a stipulated tion. Such a motion may only be filed
record; following the serving of an answer pur-
(5) Whether a party chooses to waive suant to § 31.9.
appearance at an oral hearing and to
§ 31.21 Discovery.
submit only documentary evidence
(subject to the objection of other par- (a) The following types of discovery
ties) and written argument; are authorized:
(6) Limitation of the number of wit- (1) Requests for production of docu-
nesses; ments for inspection and copying;
(7) Scheduling dates for the exchange (2) Requests for admissions of the au-
of witness lists and of proposed exhib- thenticity of any relevant document or
its; of the truth of any relevant fact;
(8) Discovery; (3) Written interrogatories; and
(9) The time and place for the hear- (4) Depositions.
ing; and
398
(b) For the purpose of this section (4) The party seeking to depose shall
and §§ 31.22 and 31.23, the term ‘‘docu- provide for the taking of a verbatim
ments’’ includes information, docu- transcript of the deposition, which it
ments, reports, answers, records, ac- shall make available to all other par-
counts, papers, and other data and doc- ties for inspection and copying.
umentary evidence. Nothing contained (f) Each party shall bear its own
herein shall be interpreted to require costs of discovery.
the creation of a document.
(c) Unless mutually agreed to by the § 31.22 Exchange of witness lists, state-
parties, discovery is available only as ments, and exhibits.
ordered by the ALJ. The ALJ shall reg- (a) At least 15 days before the hear-
ulate the timing of discovery. ing or at such other time as may be or-
(d) Motions for discovery. (1) A party dered by the ALJ, the parties shall ex-
seeking discovery may file a motion. change witness lists, copies of prior
Such a motion shall be accompanied by statements of proposed witnesses, and
a copy of the request for production of copies of proposed hearing exhibits, in-
documents, request for admissions, or cluding copies of any written state-
interrogatories, or in the case of depo- ments that the party intends to offer
sitions, a summary of the scope of the in lieu of live testimony in accordance
proposed deposition. with § 31.33(b). At the time the above
(2) Within ten days of service, a party documents are exchanged, any party
may file an opposition to the motion that intends to rely on the transcript
and/or a motion for protective order as of deposition testimony in lieu of live
provided in § 31.24. testimony at the hearing, if permitted
(3) The ALJ may grant a motion for by the ALJ, shall provide each party
discovery only if he or she finds that with a copy of the specific pages of the
the discovery sought— transcript it intends to introduce into
(i) Is necessary for the expeditious, evidence.
fair, and reasonable consideration of (b) If a party objects, the ALJ shall
the issues; not admit into evidence the testimony
(ii) Is not unduly costly or burden- of any witness whose name does not ap-
some; pear on the witness list of any exhibit
(iii) Will not unduly delay the pro- not provided to the opposing party as
ceeding; and provided above unless the ALJ finds
(iv) Does not seek privileged informa- good cause for the failure or that there
tion. is no prejudice to the objecting party.
(4) The burden of showing that dis- (c) Unless another party objects
covery should be allowed is on the within the time set by the ALJ, docu-
party seeking discovery. ments exchanged in accordance with
(5) The ALJ may grant discovery sub- paragraph (a) of this section shall be
ject to a protective order under § 31.24. deemed to be authentic for the purpose
(e) Depositions. (1) If a motion for dep- of admissibility at the hearing.
osition is granted, the ALJ shall issue
a subpoena for the deponent, which § 31.23 Subpoenas for attendance at
hearing.
may require the deponent to produce
documents. The subpoena shall specify (a) A party wishing to procure the
the time and place at which the deposi- appearance and testimony of any indi-
tion will be held. vidual at the hearing may request that
(2) The party seeking to depose shall the ALJ issue a subpoena.
serve the subpoena in the manner pre- (b) A subpoena requiring the attend-
scribed in § 31.8. ance and testimony of an individual
(3) The deponent may file a motion to may also require the individual to
quash the subpoena or a motion for a produce documents at the hearing.
protective order within ten days of (c) A party seeking a subpoena shall
service. If the ALJ has not acted on file a written request therefor not less
such a motion by the return date, such than 15 days before the date fixed for
date shall be suspended pending the the hearing unless otherwise allowed
ALJ’s final action on the motion. by the ALJ for good cause shown. Such
399
request shall be accompanied by a pro- (7) That a deposition after being

posed subpoena, which shall specify sealed be opened only by order of the
and documents to be produced and ALJ;
shall designate the witnesses and de- (8) That a trade secret or other con-
scribe the address and location thereof fidential research, development, com-
with sufficient particularity to permit mercial information, or facts per-
such witnesses to be found. taining to any criminal investigation,
(d) The subpoena shall specify the proceeding, or other administrative in-
time and place at which the witness is vestigation not be disclosed or be dis-
to appear and any documents the wit- closed only in a designated way; or
ness is to produce. (9) That the parties simultaneously
(e) The party seeking the subpoena submit to the ALJ specified documents
shall serve it in the manner prescribed or information enclosed in sealed enve-
lopes to be opened as directed by the
in § 31.8. A subpoena on a party or upon
ALJ.
an individual under the control of
party may be served by first class mail. § 31.25 Fees.
(f) A party or the individual to whom
The party requesting a subpoena
the subpoena is directed may file a mo-
shall pay the cost of the fees and mile-
tion to quash the subpoena within ten
age of any witness subpoenaed in the
days after service or on or before the amounts that would be payable to a
time specified in the subpoena for com- witness in a proceeding in United
pliance if it is less than ten days after States District Court. A check for wit-
service. If the ALJ has not acted on ness fees and mileage shall accompany
such a motion by the return date, such the subpoena when served, except that
date shall be suspended pending the when a subpoena is issued on behalf of
ALJ’s final action on the motion. the authority, a check for witness fees
and mileage need not accompany the
§ 31.24 Protective order. subpoena.
(a) A party or a prospective witness
or deponent may file a motion for a § 31.26 Filing, form, and service of pa-
protective order with respect to dis- pers.
covery sought by an opposing party or (a) Filing and form. (1) A party filing
with respect to the hearing, seeking to any document under this part shall
limit the availability or disclosure of submit (i) the original and two copies
evidence. to the Docket Clerk, Documentary
(b) In issuing a protective order, the Services Division (C–55), room 4107, De-
ALJ may make any order which justice partment of Transportation, 400 7th
requires to protect a party or person Street SW., Washington, DC 20590; and
from annoyance, embarrassment, op- (ii) two copies simultaneously to the
pression, or undue burden or expense, ALJ or, if on appeal, to the authority
including one or more of the following: head. The requirements of this para-
(1) That the discovery not be had; graph apply to all filings under this
part, regardless of whether there is a
(2) That the discovery may be had
cross-reference to § 31.26.
only on specified terms and conditions,
(2) Every pleading and paper filed in
including a designation of the time or
the proceeding shall contain a caption
place;
setting forth the title of the action, the
(3) That the discovery may be had case number assigned by the Docket
only through a method of discovery Clerk, and a designation of the paper
other than that requested; (e.g., motion to quash subpoena).
(4) That certain matters not be in- (3) Every pleading and paper shall be
quired into, or that the scope of dis- signed by, and shall contain the ad-
covery be limited to certain matters; dress and telephone nunber of, the
(5) That discovery be conducted with party or the person on whose behalf the
no one present except persons des- paper was filed, or his or her represent-
ignated by the ALJ; ative.
(6) That the contents of discovery or (4) Papers are considered filed when
evidence be sealed; they are mailed. Date of mailing may
400
be established by a certificate from the (c) Within 15 days after a written mo-
party or its representative or by proof tion is served, or such other time as
that the document was sent by cer- may be fixed by the ALJ, any party
tified or registered mail. may file a response to such motion.
(b) Service. A party filing a document (d) The ALJ may not grant a written
shall, at the time of filing, serve a copy motion before the time for filing re-
of such document on every other party. sponse thereto has expired, except upon
Service upon any party of any docu- consent of the parties or following a
ment other than those required to be hearing on the motion, but may over-
served as prescribed in § 31.8 shall be rule or deny such motion without
made by delivering a copy, or by plac- awaiting a response.
ing a copy of the document in the (e) The ALJ shall make a reasonable
United States mail, postage prepaid effort to dispose of all outstanding mo-
and addressed, to the party’s last tions prior to the beginning of the
known address. When a party is rep- hearing.
resented by a representative, service (f) Except as provided by §§ 31.21(e)(3)
shall be made upon such representative and 31.23(f), which concern subpoenas,
in lieu of the actual party. the filing or pendency of a motion shall
(c) Proof of service. A certificate of not automatically alter or extend a
the individual serving the document by deadline or return date.
personal delivery or by mail, setting
forth the manner of service, shall be § 31.29 Sanctions.
proof of service. (a) The ALJ may sanction a person,
including any party or representative,
§ 31.27 Computation of time. for—
(a) In computing any period of time (1) Failing to comply with an order,
under this part or in an order issued rule, or procedure governing the pro-
thereunder, the time begins with the ceeding;
day following the act, event, or default, (2) Failing to prosecute or defend an
and includes the last day of the period, action; or
unless it is a Saturday, Sunday, or (3) Engaging in other misconduct
legal holiday observed by the Federal that interferes with the speedy, or-
government, in which event it includes derly, or fair conduct of the hearing.
the next business day. (b) Sanctions include but are not lim-
(b) When the period of time allowed ited to those specifically set forth in
is less than seven days, intermediate paragraph (c), (d), and (e) of this sec-
Saturdays, Sundays, and legal holidays tion. Any such sanction shall reason-
observed by the Federal government ably relate to the severity and nature
shall be excluded from the computa- of the failure or misconduct.
tion. (c) When a party fails to comply with
(c) Where a document has been served an order, including an order for taking
or issued by placing it in the United a deposition, the production of evi-
States mail, an additional five days dence within the party’s control, or a
will be added to the time permitted for request for admission, the ALJ may—
any responses. (1) Draw an inference in favor of the
requesting party with regard to the in-
§ 31.28 Motions. formation sought;
(a) Any application to the ALJ for an (2) In the case of requests for admis-
order or ruling shall be by motion. Mo- sion, deem each matter of which an ad-
tions shall state the relief sought, the mission is requested to be admitted;
authority relied upon, and the facts al- (3) Prohibit the party failing to com-
leged, and shall be filed and served on ply with such order from introducing
all other parties. evidence concerning, or otherwise rely-
(b) Except for motions made during a ing upon, testimony relating to the in-
prehearing conference or at the hear- formation sought; and
ing, all motions shall be in writing. (4) Strike any part of the pleadings
The ALJ may require that oral mo- or other submissions of the party fail-
tions be reduced to writing. ing to comply with such request.
401
(d) If a party fails to prosecute or de- (1) The number of false, fictitious, or
fend an action under this part com- fraudulent claims or statements;
menced by service of a notice of hear- (2) The time period over which such
ing, the ALJ may dismiss the action or claims or statements were made;
may issue an initial decision imposi- (3) The degree of the defendant’s cul-
tion penalties and assessments. pability with respect to the mis-
(e) The ALJ may refuse to consider conduct;
any motion, request, response, brief or (4) The amount of money or the value
other document which is not filed in a of the property, services, or benefit
timely fashion. falsely claimed;
(5) The value of the Government’s ac-
§ 31.30 The hearing and burden of tual loss as a result of the misconduct,
proof. including foreseeable consequential
(a) The ALJ shall conduct a hearing damages and the costs of investigation;
on the record in order to determine (6) The relationship of the amount
whether the defendant is liable for a imposed as civil penalties to the
civil penalty or assessment under § 31.3 amount of the Government’s loss;
and, if so, the appropriate amount of (7) The potential or actual impact of
any such civil penalty or assessment the misconduct upon national defense,
considering any aggravating or miti- public health or safety, or public con-
gating factors. fidence in the management of Govern-
(b) The authority shall prove ment programs and operations, includ-
defendent’s liability and any aggra- ing particularly the impact on the in-
vating factors by a preponderance of tended beneficiaries of such programs;
the evidence. (8) Whether the defendant has en-
(c) The defendant shall prove any af- gaged in a pattern of the same or simi-
firmative defenses and any mitigating lar misconduct;
factors by a preponderance of the evi- (9) Whether the defendant attempted
dence. to conceal the misconduct;
(d) The hearing shall be open to the (10) The degree to which the defend-
public unless otherwise ordered by the ant has involved others in the mis-
ALJ for good cause shown. conduct or in concealing it;
(11) Where the misconduct of employ-
§ 31.31 Determining the amount of ees or agents is imputed to the defend-
penalties and assessments. ant, the extent to which the defend-
(a) In determining an appropriate ant’s practices fostered or attempted
amount of civil penalties and assess- to preclude such misconduct;
ments, the ALJ and the authority (12) Whether the defendant cooper-
head, upon appeal, should evaluate any ated in or obstructed an investigation
circumstances that mitigate or aggra- of the misconduct;
vate the violation and should articu- (13) Whether the defendant assisted
late in their opinions the reasons that in identifying and prosecuting other
support the penalties and assessments wrongdoers;
they impose. Because of the intangible (14) The complexity of the program
costs of fraud, the expense of inves- or transaction, and the degree of the
tigating such conduct, and the need to defendant’s sophistication with respect
deter others who might be similarly to it, including the extent of the de-
tempted, ordinarily double damages fendant’s prior participation in the
and a significant civil penalty should program or in similar transactions;
be imposed. (15) Whether the defendant has been
(b) Although not exhaustive, the fol- found, in any criminal, civil, or admin-
lowing factors are among those that istrative proceeding to have engaged in
may influence the ALJ and the author- similar misconduct or to have dealt
ity head in determining the amount of dishonestly with the Government of
penalties and assessments to impose the United States or of a State, di-
with respect to the misconduct (i.e., rectly or indirectly; and
the false fictitious, of fraudulent (16) The need to deter the defendant
claims or statements) charged in the and others from engaging in the same
complaint: or similar misconduct.
402
(c) Nothing in this section shall be (e) At the discretion of the ALJ, a
construed to limit the ALJ or the au- witness may be cross-examined on mat-
thority head from considering any ters relevant to the proceeding without
other factors that in any given case regard to the scope of his or her direct
may mitigate or aggravate the offense examination. To the extent permitted
for which penalties and assessments by the ALJ, cross-examination on mat-
are imposed. ters outside the scope of direct exam-
ination shall be conducted in the man-
§ 31.32 Location of hearing. ner of direct examination and may pro-
(a) The hearing may be held— ceed by leading questions only if the
(1) In any judicial district of the witness is a hostile witness, an adverse
United States in which the defendant party, or a witness identified with an
resides or transacts business; adverse party.
(2) In any judicial district of the (f) Upon motion of any party, the
United States in which the claim or ALJ shall order witnesses excluded so
statement in issue was made; or that they cannot hear the testimony of
(3) In such other place as may be other witnesses. This rule does not au-
agreed upon by the defendant and the thorize exclusion of—
ALJ. (1) A party who is an individual;
(b) Each party shall have the oppor- (2) In the case of a party that is not
tunity to present written and oral ar- an individual, an officer or employee of
gument with respect to the location of the party (i) appearing for the entity
the hearing. pro se or (ii) designated by the party’s
(c) The hearing shall be held at the representative; or
place and at the time ordered by the (3) An individual whose presence is
ALJ. shown by a party to be essential to the
presentation of its case, including an
§ 31.33 Witnesses. individual employed by the Govern-
(a) Except as provided in paragraph ment engaged in assisting the rep-
(b) of this section, testimony at the resentative for the Government.
hearing shall be given orally by wit-
nesses under oath or affirmation. § 31.34 Evidence.
(b) At the discretion of the ALJ, tes- (a) The ALJ shall determine the ad-
timony may be admitted in the form of missibility of evidence.
a written statement or deposition. Any (b) Except as provided in this part,
such written statement must be pro- the ALJ shall not be bound by the Fed-
vided to all other parties along with eral Rules of Evidence. However, the
the last known address of such witness, ALJ may apply the Federal Rules of
in a manner which allows sufficient Evidence where appropriate, e.g., to ex-
time for other parties to subpoena such clude unreliable evidence.
witness for cross-examination at the (c) The ALJ shall exclude irrelevant
hearing. Prior written statements of and immaterial evidence.
witnesses proposed to testify at the (d) Although relevant, evidence may
hearing and deposition transcripts be excluded if its probative value is
shall be exchanged as provided in substantially outweighed by the danger
§ 31.22(a). of unfair prejudice, confusion of the
(c) The ALJ shall exercise reasonable issues, or by considerations of undue
control over the mode and order of in- delay or needless presentation of cumu-
terrogating witnesses and presenting lative evidence.
evidence so as to (1) make the interro- (e) Although relevant, evidence may
gation and presentation effective for be excluded if it is privileged under
the ascertainment of the truth, (2) Federal law.
avoid needless consumption of time, (f) Evidence concerning offers of com-
and (3) protect witnesses from harass- promise or settlement shall be inad-
ment or undue embarrassment. missible to the extent provided in Rule
(d) The ALJ shall permit the parties 408 of the Federal Rules of Evidence.
to conduct such cross-examination as (g) The ALJ shall permit the parties
may be required for a full and true dis- to introduce rebuttal witnesses and
closure of the facts. evidence.
403
(h) All documents and other evidence at the same time serve all parties with
offered or taken for the record shall be a statement describing the right of any
open to examination by all parties, un- defendant determined to be liable for a
less otherwise ordered by the ALJ pur- civil penalty or assessment to file a
suant to § 31.24. motion for reconsideration with the
ALJ or a notice of appeal with the au-
§ 31.35 The record. thority head. If the ALJ fails to meet
(a) The hearing will be recorded and the deadline contained in this para-
transcribed. Transcripts may be ob- graph, he or she shall notify the parties
tained following the hearing from the of the reason for the delay and shall set
ALJ at a cost not to exceed the actual a new deadline.
cost of duplication. (d) Unless the initial decision of the
(b) The transcript of testimony, ex- ALJ is timely appealed to the author-
hibits and other evidence admitted at ity head, or a motion for reconsider-
the hearing, and all papers and re- ation of the intitial decision is timely
quests filed in the proceeding con- filed, the initial decision shall con-
stitute the record for the decision by stitute the final decision of the author-
the ALJ and the authority head. ity head and shall be final and binding
(c) The record may be inspected at on the parties 30 days after it is issued
the offices of the Docket Clerk (see by the ALJ.
§ 31.26(a)(1) for address) and copied
(upon payment of a reasonable fee) by § 31.38 Reconsideration of initial deci-
anyone, unless otherwise ordered by sion.
the ALJ pursuant to § 31.24. (a) Except as provided in paragraph
(d) of this section, any party may file a
§ 31.36 Post-hearing briefs. motion for reconsideration of the ini-
The ALJ may require the parties to tial decision within 20 days of receipt
file post-hearing briefs. In any event, of the initial decision. If service was
any party may file a post-hearing brief. made by mail, receipt will be presumed
The ALJ shall fix the time for filing to be five days from the date of mailing
such briefs. Such briefs may be accom- in the absence of contrary proof.
panied by proposed findings of fact and (b) Every such motion must set forth
conclusions of law. The ALJ may per- the matters claimed to have been erro-
mit the parties to file reply briefs. neously decided and the nature of the
alleged errors. Such motion shall be
§ 31.37 Initial decision. accompanied by a supporting brief.
(a) The ALJ shall issue an initial de- (c) Responses to such motions shall
cision based only on the record, which be allowed only upon request of the
shall contain findings of fact, conclu- ALJ.
sions of law, and the amount of any (d) No party may file a motion for re-
penalties and assessments imposed. consideration of an initial decision
(b) The findings of fact shall include that has been revised in response to a
a finding on each of the following previous motion for reconsideration.
issues: (e) The ALJ may dispose of a motion
(1) Whether the claims or statements for reconsideration by denying it or by
identified in the complaint, or any por- issuing a revised initial decision.
tions thereof, violate § 31.3; (f) If the ALJ denies a motion for re-
(2) If the person is liable for penalties consideration, the initial decision shall
or assessments, the appropriate constitute the final decision of the au-
amount of any such penalties or assess- thority head and shall be final and
ments considering any mitigating or binding on the parties 30 days after the
aggravating factors that he or she finds ALJ denies the motion, unless the ini-
in the case, such as those described in tial decision is timely appealed to the
§ 31.31. authority head in accordance with
(c) The ALJ shall promptly serve the § 31.39.
intitial decision on all parties within 90 (g) If the ALJ issues a revised initial
days after the time for submission of decision, that decision shall constitute
post-hearing briefs and reply briefs (if the final decision of the authority head
permitted) has expired. The ALJ shall and shall be final and binding on the
404
parties 30 days after it is issued, unless causing the failure to raise the objec-
it is timely appealed to the authority tion.
head in accordance with § 31.39. (i) If any party demonstrates to the
satisfaction of the authority head that
§ 31.39 Appeal to authority head. additional evidence not presented at
(a) Any defendant who has served a such hearing is material and that there
timely answer and who is determined were reasonable grounds for the failure
in an initial decision to be liable for a to present such evidence at such hear-
civil penalty or assessment may appeal ing, the authority head shall remand
such decision to the authority head by the matter to the ALJ for consider-
filing a notice of appeal in accordance ation of such additional evidence.
with this section and § 31.26. (j) The authority head may affirm,
(b)(1) A notice of appeal may be filed reduce, reverse, compromise, remand,
at any time within 30 days after the or settle any penalty or assessment de-
ALJ issues an initial decision. How- termined by the ALJ in any initial de-
ever, if another party files a motion for cision.
reconsideration under § 31.38, consider- (k) The authority head shall prompt-
ation of the appeal shall be stayed ly serve each party to the appeal with
automatically pending resolution of a copy of the decision of the authority
the motion for reconsideration. head and with a statement describing
(2) If a motion for reconsideration is the right of any person determined to
timely filed, a notice of appeal may be be liable for a penalty or assessment to
filed within 30 days after the ALJ de- seek judicial review.
nies the motion or issues a revised ini-
(l) Unless a petition for review is
tial decision, whichever applies.
filed as provided in 31 U.S.C. 3805 after
(3) The authority head may extend
a defendant has exhausted all adminis-
the initial 30-day period for an addi-
trative remedies under this part and
tional 30 days if the defendant files
within 60 days after the date on which
with the authority head a request for
the authority head serves the defend-
an extension within the initial 30-day
ant with a copy of the authority head’s
period and shows good cause.
decision, a determination that a de-
(c) If the defendant files a timely no-
fendant is liable under § 31.3 is final and
tice of appeal and the time for filing
is not subject to judicial review.
motions for reconsideration under
§ 31.38 has expired, the Docket Clerk § 31.40 Stays ordered by the Depart-
shall forward two copies of the notice ment of Justice.
of appeal to the authority head, and
shall forward or make available the If at any time the Attorney General
record of the proceeding to the author- or an Assistant Attorney General des-
ity head. ignated by the Attorney General trans-
(d) A notice of appeal shall be accom- mits to the authority head a written
panied by a written brief specifying ex- finding that continuation of the admin-
ceptions to the initial decision and rea- istrative process described in this part
sons supporting the exceptions. with respect to a claim or statement
(e) The representative for the Gov- may adversely affect any pending or
ernment may file a brief in opposition potential criminal or civil action re-
to exceptions within 30 days of receiv- lated to such claim or statement, the
ing the notice of appeal and accom- authority head shall stay the process
panying brief. immediately. The authority head may
(f) There is no right to appear person- order the process resumed only upon
ally before the authority head. receipt of the written authorization of
(g) There is no right to appeal any in- the Attorney General.
terlocutory ruling by the ALJ.
§ 31.41 Stay pending appeal.
(h) In reviewing the initial decision,
the authority head shall not consider (a) An initial decision is stayed auto-
any objection that was not raised be- matically pending disposition of a mo-
fore the ALJ unless a demonstration is tion for reconsideration or of an appeal
made of extraordinary circumstances to the authority head.
405
(b) No administrative stay is avail- pendency of any review under § 31.42 or

able following a final decision of the during the pendency of any action to
authority head. collect penalties and assessments
under § 31.43.
§ 31.42 Judicial review. (d) The Attorney General has exclu-
Section 3805 of title 31, United States sive authority to compromise or settle
Code, authorizes judicial review by an a case under this part during the pend-
appropriate United States District ency of any review under § 31.42 or of
Court of a final decision of the author- any action to recover penalties and as-
ity head imposing penalties or assess- sessments under 31 U.S.C. 3806.
ments under this part and specifies the (e) The investigating official may
procedures for such review. recommend settlement terms to the re-
viewing official, the authority head, or
§ 31.43 Collection of civil penalties and the Attorney General, as appropriate.
assessments.
The reviewing official may recommend
Sections 3806 and 3808(b) of title 31, settlement terms to the authority
United States Code, authorize actions head, or the Attorney General, as ap-
for collection of civil penalties and as- propriate.
sessments imposed under this part and (f) Any compromise or settlement
specify the procedures for such actions. must be in writing.
§ 31.44 Right to administrative offset. § 31.47 Limitations.
The amount of any penalty or assess- (a) The notice of hearing with respect
ment which has become final, or for to a claim or statement must be served
which a judgment has been entered in the manner specified in § 31.8 within
under § 31.42 or § 31.43, or any amount 6 years after the date on which such
agreed upon in a compromise or settle- claim or statement is made.
ment under § 31.46, may be collected by (b) If the defendant fails to serve a
administrative offset under 31 U.S.C. timely answer, service of a notice
3716, except that an administrative off- under § 31.10(b) shall be deemed a notice
set may not be made under this sub- of hearing for purposes of this section.
section against a refund of an overpay- (c) The statute of limitations may be
ment of Federal taxes, then or later extended by agreement of the parties.
owing by the United States to the de-
fendant.
PART 32—GOVERNMENTWIDE RE-
§ 31.45 Deposit in Treasury of United QUIREMENTS FOR DRUG-FREE
States. WORKPLACE (FINANCIAL ASSIST-
All amounts collected pursuant to ANCE)
this part shall be deposited as miscella-
neous receipts in the Treasury of the Subpart A—Purpose and Coverage
United States, except as provided in 31
U.S.C. 3806(g). Sec.
32.100 What does this part do?
§ 31.46 Compromise or settlement. 32.105 Does this part apply to me?
32.110 Are any of my Federal assistance
(a) Parties may make offers of com- awards exempt from this part?
promise or settlement at any time. 32.115 Does this part affect the Federal con-
(b) The reviewing official has the ex- tracts that I receive?
clusive authority to compromise or
settle a case under this part at any Subpart B—Requirements for Recipients
time after the date on which the re- Other Than Individuals
viewing official is permitted to issue a
complaint and before the date on which 32.200 What must I do to comply with this
part?
the ALJ issues an initial decision.
32.205 What must I include in my drug-free
(c) The authority head has exclusive workplace statement?
authority to compromise or settle a 32.210 To whom must I distribute my drug-
case under this part at any time after free workplace statement?
the date on which the ALJ issues an 32.215 What must I include in my drug-free
initial decision, except during the awareness program?
406
32.220 By when must I publish my drug-free agreements and other financial assist-
workplace statement and establish my ance awards, as a matter of Federal
drug-free awareness program? Government policy.
32.225 What actions must I take concerning
employees who are convicted of drug vio- § 32.105 Does this part apply to me?
lations in the workplace?
32.230 How and when must I identify work- (a) Portions of this part apply to you
places? if you are either—
(1) A recipient of an assistance award
Subpart C—Requirements for Recipients from the Department of Transpor-
Who Are Individuals tation; or
32.300 What must I do to comply with this
(2) A(n) DOT awarding official. (See
part if I am an individual recipient? definitions of award and recipient in
32.301 [Reserved] §§ 32.605 and 32.660, respectively.)
(b) The following table shows the
Subpart D—Responsibilities of DOT subparts that apply to you:
Awarding Officials
If you are . . . see subparts . . .
32.400 What are my responsibilities as a
(1) A recipient who is not an individual A, B and E.
DOT awarding official? (2) A recipient who is an individual ....... A, C and E.
(3) A(n) DOT awarding official ............... A, D and E.
Subpart E—Violations of This Part and
Consequences
§ 32.110 Are any of my Federal assist-
32.500 How are violations of this part deter- ance awards exempt from this part?
mined for recipients other than individ- This part does not apply to any
uals?
32.505 How are violations of this part deter-
award that the Secretary of Transpor-
mined for recipients who are individuals? tation determines that the application
32.510 What actions will the Federal Gov- of this part would be inconsistent with
ernment take against a recipient deter- the international obligations of the
mined to have violated this part? United States or the laws or regula-
32.515 Are there any exceptions to those actions of a foreign government.
tions?
§ 32.115 Does this part affect the Fed-
Subpart F—Definitions eral contracts that I receive?
32.605 Award. It will affect future contract awards
32.610 Controlled substance. indirectly if you are debarred or sus-
32.615 Conviction. pended for a violation of the require-
32.620 Cooperative agreement. ments of this part, as described in § 32.
32.625 Criminal drug statute.
32.630 Debarment.
510(c). However, this part does not
32.635 Drug-free workplace. apply directly to procurement con-
32.640 Employee. tracts. The portion of the Drug-Free
32.645 Federal agency or agency. Workplace Act of 1988 that applies to
32.650 Grant. Federal procurement contracts is car-
32.655 Individual. ried out through the Federal Acquisi-
32.660 Recipient. tion Regulation in chapter 1 of Title 48
32.665 State.
32.670 Suspension. of the Code of Federal Regulations (the
drug-free workplace coverage currently
AUTHORITY: 41 U.S.C. 701 et seq. is in 48 CFR part 23, subpart 23.5).
SOURCE: 68 FR 66645, Nov. 26, 2003, unless
otherwise noted. Subpart B—Requirements for
Recipients Other Than Individuals
Subpart A—Purpose and
Coverage § 32.200 What must I do to comply with
this part?
§ 32.100 What does this part do? There are two general requirements
This part carries out the portion of if you are a recipient other than an in-
the Drug-Free Workplace Act of 1988 dividual.
(41 U.S.C. 701 et seq., as amended) that (a) First, you must make a good faith
applies to grants. It also applies the effort, on a continuing basis, to main-
provisions of the Act to cooperative tain a drug-free workplace. You must
407
agree to do so as a condition for receiv- (c) Any available drug counseling, re-
ing any award covered by this part. habilitation, and employee assistance
The specific measures that you must programs; and
take in this regard are described in (d) The penalties that you may im-
more detail in subsequent sections of pose upon them for drug abuse viola-
this subpart. Briefly, those measures tions occurring in the workplace.
are to—
(1) Publish a drug-free workplace § 32.220 By when must I publish my
statement and establish a drug-free drug-free workplace statement and
awareness program for your employees establish my drug-free awareness
program?
(see §§ 32.205 through 32.220); and
(2) Take actions concerning employ- If you are a new recipient that does
ees who are convicted of violating drug not already have a policy statement as
statutes in the workplace (see § 32.225). described in § 32.205 and an ongoing
(b) Second, you must identify all awareness program as described in
known workplaces under your Federal § 32.215, you must publish the state-
awards (see § 32.230). ment and establish the program by the
time given in the following table:
§ 32.205 What must I include in my
drug-free workplace statement? If . . . then you . . .
You must publish a statement that— (a) The performance period must have the policy state-
of the award is less than ment and program in place
(a) Tells your employees that the un- 30 days. as soon as possible, but
lawful manufacture, distribution, dis- before the date on which
pensing, possession, or use of a con- performance is expected to
trolled substance is prohibited in your be completed.
(b) The performance period must have the policy state-
workplace; of the award is 30 days or ment and program in place
(b) Specifies the actions that you will more. within 30 days after award.
take against employees for violating (c) You believe there are ex- may ask the DOT awarding
that prohibition; and traordinary circumstances official to give you more
that will require more than time to do so. The amount
(c) Lets each employee know that, as 30 days for you to publish of additional time, if any, to
a condition of employment under any the policy statement and be given is at the discretion
award, he or she: establish the awareness of the awarding official.
program.
(1) Will abide by the terms of the
statement; and
(2) Must notify you in writing if he or § 32.225 What actions must I take con-
she is convicted for a violation of a cerning employees who are con-
victed of drug violations in the
criminal drug statute occurring in the workplace?
workplace and must do so no more
than five calendar days after the con- There are two actions you must take
viction. if an employee is convicted of a drug
violation in the workplace:
§ 32.210 To whom must I distribute my (a) First, you must notify Federal
drug-free workplace statement? agencies if an employee who is engaged
You must require that a copy of the in the performance of an award informs
statement described in § 32.205 be given you about a conviction, as required by
to each employee who will be engaged § 32.205(c)(2), or you otherwise learn of
in the performance of any Federal the conviction. Your notification to
award. the Federal agencies mustl
(1) Be in writing;
§ 32.215 What must I include in my (2) Include the employee’s position
drug-free awareness program? title;
You must establish an ongoing drug- (3) Include the identification num-
free awareness program to inform em- ber(s) of each affected award;
ployees about— (4) Be sent within ten calendar days
(a) The dangers of drug abuse in the after you learn of the conviction; and
workplace; (5) Be sent to every Federal agency
(b) Your policy of maintaining a on whose award the convicted em-
drug-free workplace; ployee was working. It must be sent to
408
every awarding official or his or her of- Subpart C—Requirements for

ficial designee, unless the Federal Recipients Who Are Individuals
agency has specified a central point for
the receipt of the notices. § 32.300 What must I do to comply with
(b) Second, within 30 calendar days of this part if I am an individual re-
learning about an employee’s convic- cipient?
tion, you must eitherl As a condition of receiving a(n) DOT
(1) Take appropriate personnel action award, if you are an individual recipi-
against the employee, up to and includ- ent, you must agree that—
ing termination, consistent with the (a) You will not engage in the unlaw-
ful manufacture, distribution, dis-
requirements of the Rehabilitation Act
pensing, possession, or use of a con-
of 1973 (29 U.S.C. 794), as amended; or
trolled substance in conducting any ac-
(2) Require the employee to partici- tivity related to the award; and
pate satisfactorily in a drug abuse as- (b) If you are convicted of a criminal
sistance or rehabilitation program ap- drug offense resulting from a violation
proved for these purposes by a Federal, occurring during the conduct of any
State or local health, law enforcement, award activity, you will report the con-
or other appropriate agency. viction:
(1) In writing.
§ 32.230 How and when must I identify (2) Within 10 calendar days of the
workplaces? conviction.
(a) You must identify all known (3) To the DOT awarding official or
workplaces under each DOT award. A other designee for each award that you
failure to do so is a violation of your currently have, unless § 32.301 or the
drug-free workplace requirements. You award document designates a central
may identify the workplacesl point for the receipt of the notices.
When notice is made to a central point,
(1) To the DOT official that is mak-
it must include the identification num-
ing the award, either at the time of ap-
ber(s) of each affected award.
plication or upon award; or
(2) In documents that you keep on § 32.301 [Reserved]
file in your offices during the perform-
ance of the award, in which case you Subpart D—Responsibilities of DOT
must make the information available Awarding Officials
for inspection upon request by DOT of-
ficials or their designated representa- § 32.400 What are my responsibilities
tives. as a(n) DOT awarding official?
(b) Your workplace identification for As a(n) DOT awarding official, you
an award must include the actual ad- must obtain each recipient’s agree-
dress of buildings (or parts of build- ment, as a condition of the award, to
ings) or other sites where work under comply with the requirements in—
the award takes place. Categorical de- (a) Subpart B of this part, if the re-
scriptions may be used (e.g., all vehi- cipient is not an individual; or
cles of a mass transit authority or (b) Subpart C of this part, if the re-
State highway department while in op- cipient is an individual.
eration, State employees in each local
unemployment office, performers in Subpart E—Violations of this Part
concert halls or radio studios). and Consequences
(c) If you identified workplaces to
§ 32.500 How are violations of this part
the DOT awarding official at the time determined for recipients other
of application or award, as described in than individuals?
paragraph (a)(1) of this section, and A recipient other than an individual
any workplace that you identified is in violation of the requirements of
changes during the performance of the this part if the Secretary of Transpor-
award, you must inform the DOT tation determines, in writing, that—
awarding official. (a) The recipient has violated the re-
quirements of subpart B of this part; or
409
(b) The number of convictions of the portation or other Federal agency di-
recipient’s employees for violating rectly to a recipient.
criminal drug statutes in the work- (a) The term award includes:
place is large enough to indicate that (1) A Federal grant or cooperative
the recipient has failed to make a good agreement, in the form of money or
faith effort to provide a drug-free property in lieu of money.
workplace. (2) A block grant or a grant in an en-
titlement program, whether or not the
§ 32.505 How are violations of this part grant is exempted from coverage under
determined for recipients who are the Governmentwide rule 49 CFR part
individuals? 18 that implements OMB Circular A–102
An individual recipient is in viola- (for availability, see 5 CFR 1310.3) and
tion of the requirements of this part if specifies uniform administrative re-
the Secretary of Transportation deter- quirements.
mines, in writing, that— (b) The term award does not include:
(a) The recipient has violated the re- (1) Technical assistance that provides
quirements of subpart C of this part; or services instead of money.
(b) The recipient is convicted of a (2) Loans.
criminal drug offense resulting from a (3) Loan guarantees.
violation occurring during the conduct (4) Interest subsidies.
of any award activity. (5) Insurance.
(6) Direct appropriations.
§ 32.510 What actions will the Federal (7) Veterans’ benefits to individuals
Government take against a recipi- (i.e., any benefit to veterans, their fam-
ent determined to have violated ilies, or survivors by virtue of the serv-
this part? ice of a veteran in the Armed Forces of
If a recipient is determined to have the United States).
violated this part, as described in § 32.610 Controlled substance.
§ 32.500 or § 32.505, the Department of
Transportation may take one or more Controlled substance means a con-
of the following actions— trolled substance in schedules I
(a) Suspension of payments under the through V of the Controlled Substances
award; Act (21 U.S.C. 812), and as further de-
(b) Suspension or termination of the fined by regulation at 21 CFR 1308.11
award; and through 1308.15.
(c) Suspension or debarment of the § 32.615 Conviction.
recipient under 49 CFR part 29, for a
period not to exceed five years. Conviction means a finding of guilt
(including a plea of nolo contendere) or
§ 32.515 Are there any exceptions to imposition of sentence, or both, by any
those actions? judicial body charged with the respon-
sibility to determine violations of the
The Secretary of Transportation may Federal or State criminal drug stat-
waive with respect to a particular utes.
award, in writing, a suspension of pay-
ments under an award, suspension or § 32.620 Cooperative agreement.
termination of an award, or suspension
Cooperative agreement means an award
or debarment of a recipient if the Sec-
of financial assistance that, consistent
retary of Transportation determines
with 31 U.S.C. 6305, is used to enter into
that such a waiver would be in the pub-
the same kind of relationship as a
lic interest. This exception authority
grant (see definition of grant in
cannot be delegated to any other offi-
§ 32.650), except that substantial in-
cial.
volvement is expected between the
Federal agency and the recipient when
Subpart F—Definitions carrying out the activity contemplated
by the award. The term does not in-
§ 32.605 Award. clude cooperative research and devel-
Award means an award of financial opment agreements as defined in 15
assistance by the Department of Trans- U.S.C. 3710a.
410
§ 32.625 Criminal drug statute. § 32.645 Federal agency or agency.

Criminal drug statute means a Federal Federal agency or agency means any
or non-Federal criminal statute involv- United States executive department,
ing the manufacture, distribution, dis- military department, government cor-
pensing, use, or possession of any con- poration, government controlled cor-
trolled substance. poration, any other establishment in
the executive branch (including the Ex-
§ 32.630 Debarment. ecutive Office of the President), or any
Debarment means an action taken by independent regulatory agency.
a Federal agency to prohibit a recipi- § 32.650 Grant.
ent from participating in Federal Gov-
ernment procurement contracts and Grant means an award of financial as-
covered nonprocurement transactions. sistance that, consistent with 31 U.S.C.
A recipient so prohibited is debarred, 6304, is used to enter into a relation-
in accordance with the Federal Acqui- ship—
sition Regulation for procurement con- (a) The principal purpose of which is
tracts (48 CFR part 9, subpart 9.4) and to transfer a thing of value to the re-
the common rule, Government-wide cipient to carry out a public purpose of
Debarment and Suspension (Non- support or stimulation authorized by a
law of the United States, rather than
procurement), that implements Execu-
to acquire property or services for the
tive Order 12549 and Executive Order
Federal Government’s direct benefit or
12689.
use; and
§ 32.635 Drug-free workplace. (b) In which substantial involvement
is not expected between the Federal
Drug-free workplace means a site for agency and the recipient when carrying
the performance of work done in con- out the activity contemplated by the
nection with a specific award at which award.
employees of the recipient are prohib-
ited from engaging in the unlawful § 32.655 Individual.
manufacture, distribution, dispensing, Individual means a natural person.
possession, or use of a controlled sub-
stance. § 32.660 Recipient.
§ 32.640 Employee. Recipient means any individual, cor-
poration, partnership, association, unit
(a) Employee means the employee of a of government (except a Federal agen-
recipient directly engaged in the per- cy) or legal entity, however organized,
formance of work under the award, in- that receives an award directly from a
cluding— Federal agency.
(1) All direct charge employees;
(2) All indirect charge employees, un- § 32.665 State.
less their impact or involvement in the State means any of the States of the
performance of work under the award United States, the District of Colum-
is insignificant to the performance of bia, the Commonwealth of Puerto Rico,
the award; and or any territory or possession of the
(3) Temporary personnel and consult- United States.
ants who are directly engaged in the
performance of work under the award § 32.670 Suspension.
and who are on the recipient’s payroll. Suspension means an action taken by
(b) This definition does not include a Federal agency that immediately
workers not on the payroll of the re- prohibits a recipient from partici-
cipient (e.g., volunteers, even if used to pating in Federal Government procure-
meet a matching requirement; consult- ment contracts and covered non-
ants or independent contractors not on procurement transactions for a tem-
the payroll; or employees of subrecipi- porary period, pending completion of
ents or subcontractors in covered an investigation and any judicial or ad-
workplaces). ministrative proceedings that may
411
ensue. A recipient so prohibited is sus- 37.57 Required cooperation.

pended, in accordance with the Federal 37.59 Differences in accessibility completion
Acquisition Regulation for procure- dates.
37.61 Public transportation programs and
ment contracts (48 CFR part 9, subpart
activities in existing facilities.
9.4) and the common rule, Government- 37.63–37.69 [Reserved]
wide Debarment and Suspension (Non-
procurement), that implements Execu- Subpart D—Acquisition of Accessible
tive Order 12549 and Executive Order Vehicles by Public Entities
12689. Suspension of a recipient is a dis-
tinct and separate action from suspen- 37.71 Purchase or lease of new non-rail vehi-
sion of an award or suspension of pay- cles by public entities operating fixed
route systems.
ments under an award.
37.73 Purchase or lease of used non-rail ve-
hicles by public entities operating fixed
PART 37—TRANSPORTATION SERV- route systems.
ICES FOR INDIVIDUALS WITH DIS- 37.75 Remanufacture of non-rail vehicles
ABILITIES (ADA) and purchase or lease of remanufactured
non-rail vehicles by public entities oper-
ating fixed route systems.
Subpart A—General 37.77 Purchase or lease of new non-rail vehi-
Sec. cles by public entities operating a de-
37.1 Purpose. mand responsive system for the general
37.3 Definitions. public.
37.5 Nondiscrimination. 37.79 Purchase or lease of new rail vehicles
37.7 Standards for accessible vehicles. by public entities operating rapid or
37.9 Standards for accessible transportation light rail systems.
facilities. 37.81 Purchase or lease of used rail vehicles
37.11 Administrative enforcement. by public entities operating rapid or
37.13 Effective date for certain vehicle spec- light rail systems.
ifications. 37.83 Remanufacture of rail vehicles and
37.15 Temporary suspension of certain de- purchase or lease of remanufactured rail
tectable warning requirements. vehicles by public entities operating
37.16–37.19 [Reserved] rapid or light rail systems.
37.85 Purchase or lease of new intercity and
Subpart B—Applicability commuter rail cars.
37.87 Purchase or lease of used intercity and
37.21 Applicability: General. commuter rail cars.
37.23 Service under contract. 37.89 Remanufacture of intercity and com-
37.25 University transportation systems. muter rail cars and purchase or lease of
37.27 Transportation for elementary and remanufactured intercity and commuter
secondary education systems. rail cars.
37.29 Private entities providing taxi service.
37.91 Wheelchair locations and food service
37.31 Vanpools.
on intercity rail trains.
37.33 Airport transportation systems.
37.93 One car per train rule.
37.35 Supplemental service for other trans-
37.95 Ferries and other passenger vessels op-
portation modes.
erated by public entities. [Reserved]
37.37 Other applications.
37.39 [Reserved] 37.97–37.99 [Reserved]
Subpart C—Transportation Facilities Subpart E—Acquisition of Accessible

Vehicles by Private Entities
37.41 Construction of transportation facili-
ties by public entities. 37.101 Purchase or lease of vehicles by pri-
37.43 Alteration of transportation facilities vate entities not primarily engaged in
by public entities. the business of transporting people.
37.45 Construction and alteration of trans- 37.103 Purchase or lease of new non-rail ve-
portation facilities by private entities. hicles by private entities primarily en-
37.47 Key stations in light and rapid rail gaged in the business of transporting
systems. people.
37.49 Designation of responsible person(s) 37.105 Equivalent service standard.
for intercity and commuter rail stations. 37.107 Acquisition of passenger rail cars by
37.51 Key stations in commuter rail sys- private entities primarily engaged in the
tems. business of transporting people.
37.53 Exception for New York and Philadel- 37.109 Ferries and other passenger vessels
phia. operated by private entities. [Reserved]
37.55 Intercity rail station accessibility. 37.111–37.119 [Reserved]
412
Subpart F—Paratransit as a Complement to 37.205 Additional passengers who use wheel-

Fixed Route Service chairs.
37.207 Discriminatory practices.
37.121 Requirement for comparable com- 37.209 Training and other requirements.
plementary paratransit service. 37.211 Effect of NHTSA and FHWA safety
37.123 ADA paratransit eligibility: Stand- rules.
ards.
37.213 Information collection requirements.
37.125 ADA paratransit eligibility: Process.
37.127 Complementary paratransit service 37.215 Review of requirements.
for visitors. APPENDIX A TO SUBPART H OF PART 37—SERV-
37.129 Types of service. ICE REQUEST FORM
37.131 Service criteria for complementary APPENDIX A TO PART 37—MODIFICATIONS TO
paratransit. STANDARDS FOR ACCESSIBLE TRANSPOR-
37.133 Subscription service. TATION FACILITIES
37.135 Submission of paratransit plan. APPENDIX B TO PART 37—FTA REGIONAL OF-
37.137 Paratransit plan development.
FICES
37.139 Plan contents.
37.141 Requirements for a joint paratransit APPENDIX C TO PART 37—CERTIFICATIONS
plan. APPENDIX D TO PART 37—CONSTRUCTION AND
37.143 Paratransit plan implementation. INTERPRETATION OF PROVISIONS OF 49 CFR
37.145 State comment on plans. PART 37
37.147 Considerations during FTA review. AUTHORITY: 42 U.S.C. 12101–12213; 49 U.S.C.
37.149 Disapproved plans. 322.
37.151 Waiver for undue financial burden.
37.153 FTA waiver determination. SOURCE: 56 FR 45621, Sept. 6, 1991, unless
37.155 Factors in decision to grant an undue otherwise noted.
financial burden waiver.
37.157–37.159 [Reserved]
Subpart A—General
Subpart G—Provision of Service
§ 37.1 Purpose.
37.161 Maintenance of accessible features:
General. The purpose of this part is to imple-
37.163 Keeping vehicle lifts in operative con- ment the transportation and related
dition: Public entities. provisions of titles II and III of the
37.165 Lift and securement use. Americans with Disabilities Act of
37.167 Other service requirements. 1990.
37.169 Interim requirements for over-the-
road bus service operated by private enti- § 37.3 Definitions.
ties.
37.171 Equivalency requirement for demand As used in this part:
responsive service operated by private Accessible means, with respect to ve-
entities not primarily engaged in the hicles and facilities, complying with
business of transporting people.
37.173 Training requirements. the accessibility requirements of parts
37 and 38 of this title.
Subpart H—Over-the-Road Buses (OTRBs) The Act or ADA means the Americans
with Disabilities Act of 1990 (Pub. L.
37.181 Applicability dates.
37.183 Purchase or lease of new OTRBs by 101–336, 104 Stat. 327, 42 U.S.C. 12101–
operators of fixed-route systems. 12213 and 47 U.S.C. 225 and 611), as it
37.185 Fleet accessibility requirement for may be amended from time to time.
OTRB fixed-route systems of large opera- Administrator means Administrator of
tors. the Federal Transit Administration, or
37.187 Interline service.
37.189 Service requirement for OTRB de-
his or her designee.
mand-responsive systems. Alteration means a change to an ex-
37.191 Special provision for small mixed- isting facility, including, but not lim-
service operators. ited to, remodeling, renovation, reha-
37.193 Interim service requirements. bilitation, reconstruction, historic res-
37.195 Purchase or lease of OTRBs by pri-
toration, changes or rearrangement in
vate entities not primarily in the busi-
ness of transporting people. structural parts or elements, and
37.197 Remanufactured OTRBs. changes or rearrangement in the plan
37.199 [Reserved] configuration of walls and full-height
37.201 Intermediate and rest stops.
37.203 Lift maintenance.
413
partitions. Normal maintenance, re- same state but through another state
roofing, painting or wallpapering, as- or foreign country.
bestos removal, or changes to mechan- Commuter authority means any state,
ical or electrical systems are not alter- local, regional authority, corporation,
ations unless they affect the usability or other entity established for purposes
of the building or facility. of providing commuter rail transpor-
Automated guideway transit system or tation (including, but not necessarily
AGT means a fixed-guideway transit limited to, the New York Metropolitan
system which operates with automated Transportation Authority, the Con-
(driverless) individual vehicles or necticut Department of Transpor-
multi-car trains. Service may be on a tation, the Maryland Department of
fixed schedule or in response to a pas- Transportation, the Southeastern
senger-activated call button. Pennsylvania Transportation Author-
Auxiliary aids and services includes: ity, the New Jersey Transit Corpora-
(1) Qualified interpreters, notetakers, tion, the Massachusetts Bay Transpor-
transcription services, written mate- tation Authority, the Port Authority
rials, telephone headset amplifiers, as- Trans-Hudson Corporation, and any
sistive listening devices, assistive lis- successor agencies) and any entity cre-
tening systems, telephones compatible ated by one or more such agencies for
the purposes of operating, or con-
with hearing aids, closed caption de-
tracting for the operation of, com-
coders, closed and open captioning,
muter rail transportation.
text telephones (also known as tele-
Commuter bus service means fixed
phone devices for the deaf, or TDDs),
route bus service, characterized by
videotext displays, or other effective
service predominantly in one direction
methods of making aurally delivered
during peak periods, limited stops, use
materials available to individuals with
of multi-ride tickets, and routes of ex-
hearing impairments;
tended length, usually between the
(2) Qualified readers, taped texts, central business district and outlying
audio recordings, Brailled materials, suburbs. Commuter bus service may
large print materials, or other effective also include other service, character-
methods of making visually delivered ized by a limited route structure, lim-
materials available to individuals with ited stops, and a coordinated relation-
visual impairments; ship to another mode of transpor-
(3) Acquisition or modification of tation.
equipment or devices; or Commuter rail car means a rail pas-
(4) Other similar services or actions. senger car obtained by a commuter au-
Bus means any of several types of thority for use in commuter rail trans-
self-propelled vehicles, generally rub- portation.
ber-tired, intended for use on city Commuter rail transportation means
streets, highways, and busways, includ- short-haul rail passenger service oper-
ing but not limited to minibuses, forty- ating in metropolitan and suburban
and thirty-foot buses, articulated areas, whether within or across the
buses, double-deck buses, and elec- geographical boundaries of a state,
trically powered trolley buses, used by usually characterized by reduced fare,
public entities to provide designated multiple ride, and commutation tick-
public transportation service and by ets and by morning and evening peak
private entities to provide transpor- period operations. This term does not
tation service including, but not lim- include light or rapid rail transpor-
ited to, specified public transportation tation.
services. Self-propelled, rubber-tired Demand responsive system means any
vehicles designed to look like antique system of transporting individuals, in-
or vintage trolleys are considered cluding the provision of designated
buses. public transportation service by public
Commerce means travel, trade, trans- entities and the provision of transpor-
portation, or communication among tation service by private entities, in-
the several states, between any foreign cluding but not limited to specified
country or any territory or possession public transportation service, which is
and any state, or between points in the not a fixed route system.
414
Designated public transportation means (4) The phrase is regarded as having

transportation provided by a public en- such an impairment means—
tity (other than public school transpor- (i) Has a physical or mental impair-
tation) by bus, rail, or other convey- ment that does not substantially limit
ance (other than transportation by air- major life activities, but which is
craft or intercity or commuter rail treated by a public or private entity as
transportation) that provides the gen- constituting such a limitation;
eral public with general or special serv- (ii) Has a physical or mental impair-
ice, including charter service, on a reg- ment that substantially limits a major
ular and continuing basis. life activity only as a result of the atti-
Disability means, with respect to an tudes of others toward such an impair-
individual, a physical or mental im- ment; or
pairment that substantially limits one (iii) Has none of the impairments de-
or more of the major life activities of fined in paragraph (1) of this definition
such individual; a record of such an im- but is treated by a public or private en-
pairment; or being regarded as having tity as having such an impairment.
such an impairment. (5) The term disability does not in-
(1) The phrase physical or mental im- clude—
pairment means— (i) Transvestism, transsexualism,
(i) Any physiological disorder or con- pedophilia, exhibitionism, voyeurism,
dition, cosmetic disfigurement, or ana- gender identity disorders not resulting
tomical loss affecting one or more of from physical impairments, or other
the following body systems: neuro- sexual behavior disorders;
logical, musculoskeletal, special sense (ii) Compulsive gambling, klep-
organs, respiratory including speech tomania, or pyromania;
organs, cardiovascular, reproductive, (iii) Psychoactive substance abuse
digestive, genito-urinary, hemic and disorders resulting from the current il-
lymphatic, skin, and endocrine; legal use of drugs.
(ii) Any mental or psychological dis- Facility means all or any portion of
order, such as mental retardation, or- buildings, structures, sites, complexes,
ganic brain syndrome, emotional or equipment, roads, walks, passageways,
mental illness, and specific learning parking lots, or other real or personal
disabilities; property, including the site where the
(iii) The term physical or mental im- building, property, structure, or equip-
pairment includes, but is not limited to, ment is located.
such contagious or noncontagious dis- Fixed route system means a system of
eases and conditions as orthopedic, vis- transporting individuals (other than by
ual, speech, and hearing impairments; aircraft), including the provision of
cerebral palsy, epilepsy, muscular dys- designated public transportation serv-
trophy, multiple sclerosis, cancer, ice by public entities and the provision
heart disease, diabetes, mental retar- of transportation service by private en-
dation, emotional illness, specific tities, including, but not limited to,
learning disabilities, HIV disease, tu- specified public transportation service,
berculosis, drug addiction and alco- on which a vehicle is operated along a
holism; prescribed route according to a fixed
(iv) The phrase physical or mental im- schedule.
pairment does not include homosex- FT Act means the Federal Transit
uality or bisexuality. Act of 1964, as amended (49 U.S.C. App.
(2) The phrase major life activities 1601 et seq.).
means functions such as caring for High speed rail means a rail service
one’s self, performing manual tasks, having the characteristics of intercity
walking, seeing, hearing, speaking, rail service which operates primarily
breathing, learning, and work. on a dedicated guideway or track not
(3) The phrase has a record of such an used, for the most part, by freight, in-
impairment means has a history of, or cluding, but not limited to, trains on
has been misclassified as having, a welded rail, magnetically levitated
mental or physical impairment that (maglev) vehicles on a special guide-
substantially limits one or more major way, or other advanced technology ve-
life activities. hicles, designed to travel at speeds in
415
excess of those possible on other types ment to and from a public elementary
of railroads. or secondary school and school-related
Individual with a disability means a activities.
person who has a disability, but does Rapid rail means a subway-type tran-
not include an individual who is cur- sit vehicle railway operated on exclu-
rently engaging in the illegal use of sive private rights of way with high
drugs, when a public or private entity level platform stations. Rapid rail also
acts on the basis of such use. may operate on elevated or at grade
Intercity rail passenger car means a level track separated from other traf-
rail car, intended for use by revenue fic.
passengers, obtained by the National Remanufactured vehicle means a vehi-
Railroad Passenger Corporation (Am- cle which has been structurally re-
trak) for use in intercity rail transpor- stored and has had new or rebuilt
tation. major components installed to extend
Intercity rail transportation means its service life.
transportation provided by Amtrak. Secretary means the Secretary of
Light rail means a streetcar-type ve- Transportation or his/her designee.
hicle operated on city streets, semi-ex- Section 504 means section 504 of the
clusive rights of way, or exclusive Rehabilitation Act of 1973 (Pub. L. 93–
rights of way. Service may be provided 112, 87 Stat. 394, 29 U.S.C. 794), as
by step-entry vehicles or by level amended.
boarding. Service animal means any guide dog,
New vehicle means a vehicle which is signal dog, or other animal individ-
offered for sale or lease after manufac- ually trained to work or perform tasks
ture without any prior use. for an individual with a disability, in-
Operates includes, with respect to a cluding, but not limited to, guiding in-
fixed route or demand responsive sys- dividuals with impaired vision, alert-
tem, the provision of transportation ing individuals with impaired hearing
service by a public or private entity to intruders or sounds, providing mini-
itself or by a person under a contrac- mal protection or rescue work, pulling
tual or other arrangement or relation- a wheelchair, or fetching dropped
ship with the entity. items.
Over-the-road bus means a bus charac- Small operator means, in the context
terized by an elevated passenger deck of over-the-road buses (OTRBs), a pri-
located over a baggage compartment. vate entity primarily in the business of
Paratransit means comparable trans- transporting people that is not a Class
portation service required by the ADA I motor carrier. To determine whether
for individuals with disabilities who an operator has sufficient average an-
are unable to use fixed route transpor- nual gross transportation operating
tation systems. revenues to be a Class I motor carrier,
Private entity means any entity other its revenues are combined with those of
than a public entity. any other OTRB operator with which it
Public entity means: is affiliated.
(1) Any state or local government; Solicitation means the closing date for
(2) Any department, agency, special the submission of bids or offers in a
purpose district, or other instrumen- procurement.
tality of one or more state or local gov- Specified public transportation means
ernments; and transportation by bus, rail, or any
(3) The National Railroad Passenger other conveyance (other than aircraft)
Corporation (Amtrak) and any com- provided by a private entity to the gen-
muter authority. eral public, with general or special
Purchase or lease, with respect to ve- service (including charter service) on a
hicles, means the time at which an en- regular and continuing basis.
tity is legally obligated to obtain the Station means, with respect to inter-
vehicles, such as the time of contract city and commuter rail transportation,
execution. the portion of a property located ap-
Public school transportation means purtenant to a right of way on which
transportation by schoolbus vehicles of intercity or commuter rail transpor-
schoolchildren, personnel, and equip- tation is operated, where such portion
416
is used by the general public and is re- weigh more than 600 pounds when occu-
lated to the provision of such transpor- pied.
tation, including passenger platforms, [56 FR 45621, Sept. 6, 1991, as amended at 58
designated waiting areas, restrooms, FR 63101, Nov. 30, 1993; 61 FR 25415, May 21,
and, where a public entity providing 1996; 63 FR 51690, Sept. 28, 1998]
rail transportation owns the property,
concession areas, to the extent that § 37.5 Nondiscrimination.
such public entity exercises control (a) No entity shall discriminate
over the selection, design, construc- against an individual with a disability
tion, or alteration of the property, but in connection with the provision of
this term does not include flag stops transportation service.
(i.e., stations which are not regularly (b) Notwithstanding the provision of
scheduled stops but at which trains any special transportation service to
will stop to board or detrain passengers individuals with disabilities, an entity
only on signal or advance notice). shall not, on the basis of disability,
Transit facility means, for purposes of deny to any individual with a dis-
determining the number of text tele- ability the opportunity to use the enti-
phones needed consistent with section ty’s transportation service for the gen-
10.3.1(12) of appendix A to this part, a eral public, if the individual is capable
physical structure the primary func- of using that service.
tion of which is to facilitate access to (c) An entity shall not require an in-
and from a transportation system dividual with a disability to use des-
which has scheduled stops at the struc- ignated priority seats, if the individual
ture. The term does not include an does not choose to use these seats.
open structure or a physical structure (d) An entity shall not impose special
the primary purpose of which is other charges, not authorized by this part, on
than providing transportation services. individuals with disabilities, including
Used vehicle means a vehicle with individuals who use wheelchairs, for
prior use. providing services required by this part
Vanpool means a voluntary com- or otherwise necessary to accommo-
muter ridesharing arrangement, using date them.
vans with a seating capacity greater (e) An entity shall not require that
than 7 persons (including the driver) or an individual with disabilities be ac-
buses, which provides transportation to companied by an attendant.
a group of individuals traveling di- (f) Private entities that are primarily
rectly from their homes to their reg- engaged in the business of transporting
ular places of work within the same people and whose operations affect
geographical area, and in which the commerce shall not discriminate
commuter/driver does not receive com- against any individual on the basis of
pensation beyond reimbursement for disability in the full and equal enjoy-
his or her costs of providing the serv- ment of specified transportation serv-
ice. ices. This obligation includes, with re-
Vehicle, as the term is applied to pri- spect to the provision of transportation
vate entities, does not include a rail services, compliance with the require-
passenger car, railroad locomotive, ments of the rules of the Department
railroad freight car, or railroad ca- of Justice concerning eligibility cri-
boose, or other rail rolling stock de- teria, making reasonable modifica-
scribed in section 242 of title III of the tions, providing auxiliary aids and
Act. services, and removing barriers (28 CFR
Wheelchair means a mobility aid be- 36.301–36.306).
longing to any class of three or four- (g) An entity shall not refuse to serve
wheeled devices, usable indoors, de- an individual with a disability or re-
signed for and used by individuals with quire anything contrary to this part
mobility impairments, whether oper- because its insurance company condi-
ated manually or powered. A ‘‘common tions coverage or rates on the absence
wheelchair’’ is such a device which of individuals with disabilities or re-
does not exceed 30 inches in width and quirements contrary to this part.
48 inches in length measured two (h) It is not discrimination under this
inches above the ground, and does not part for an entity to refuse to provide
417
service to an individual with disabil- public participation shall include the

ities because that individual engages in following:
violent, seriously disruptive, or illegal (i) The entity shall contact individ-
conduct. However, an entity shall not uals with disabilities and groups rep-
refuse to provide service to an indi- resenting them in the community. Con-
vidual with disabilities solely because sultation with these individuals and
the individual’s disability results in ap- groups shall take place at all stages of
pearance or involuntary behavior that the development of the request for
may offend, annoy, or inconvenience equivalent facilitation. All documents
employees of the entity or other per- and other information concerning the
sons. request shall be available, upon re-
quest, to members of the public.
§ 37.7 Standards for accessible vehi- (ii) The entity shall make its pro-
cles. posed request available for public com-
(a) For purposes of this part, a vehi- ment before the request is made final
cle shall be considered to be readily ac- or transmitted to DOT. In making the
cessible to and usable by individuals request available for public review, the
with disabilities if it meets the re- entity shall ensure that it is available,
quirements of this part and the stand- upon request, in accessible formats.
ards set forth in part 38 of this title. (iii) The entity shall sponsor at least
(b)(1) For purposes of implementing one public hearing on the request and
the equivalent facilitation provision in shall provide adequate notice of the
§ 38.2 of this subtitle, the following par- hearing, including advertisement in ap-
ties may submit to the Administrator propriate media, such as newspapers of
of the applicable operating administra- general and special interest circulation
tion a request for a determination of and radio announcements.
equivalent facilitation: (4) In the case of a request by a pri-
(i) A public or private entity that vate entity that provides transpor-
provides transportation services and is tation services subject to the provi-
subject to the provisions of subpart D sions of subpart E of this part or a
or subpart E this part; or manufacturer, the private entity or
manufacturer shall consult, in person,
(ii) The manufacturer of a vehicle or
in writing, or by other appropriate
a vehicle component or subsystem to
means, with representatives of na-
be used by such entity to comply with
tional and local organizations rep-
this part.
resenting people with those disabilities
(2) The requesting party shall provide
who would be affected by the request.
the following information with its re-
(5) A determination of compliance
quest:
will be made by the Administrator of
(i) Entity name, address, contact per- the concerned operating administra-
son and telephone; tion on a case-by-case basis, with the
(ii) Specific provision of part 38 of concurrence of the Assistant Secretary
this title concerning which the entity for Policy and International Affairs.
is seeking a determination of equiva- (6) Determinations of equivalent fa-
lent facilitation. cilitation are made only with respect
(iii) [Reserved] to vehicles or vehicle components used
(iv) Alternative method of compli- in the provision of transportation serv-
ance, with demonstration of how the ices covered by subpart D or subpart E
alternative meets or exceeds the level of this part, and pertain only to the
of accessibility or usability of the vehi- specific situation concerning which the
cle provided in part 38 of this subtitle; determination is made. Entities shall
and not cite these determinations as indi-
(v) Documentation of the public par- cating that a product or method con-
ticipation used in developing an alter- stitute equivalent facilitations in situ-
native method of compliance. ations other than those to which the
(3) In the case of a request by a pub- determinations specifically pertain.
lic entity that provides transportation Entities shall not claim that a deter-
services subject to the provisions of mination of equivalent facilitation in-
subpart D of this part, the required dicates approval or endorsement of any
418
product or method by the Federal gov- October 1, 2006, edition of the Code of
ernment, the Department of Transpor- Federal Regulations.
tation, or any of its operating adminis- (2) Existing buildings and facilities
trations. that are not altered after November 29,
(c) Over-the-road buses acquired by 2006, and which comply with the former
public entities (or by a contractor to a Appendix A to this part, are not re-
public entity as provided in § 37.23 of quired to be retrofitted to comply with
this part) shall comply with § 38.23 and the requirements set forth in Appen-
subpart G of part 38 of this title. dices B and D to 36 CFR part 1191 and
[56 FR 45621, Sept. 6, 1991, as amended at 58 Appendix A to this part.
FR 63101, Nov. 30, 1993; 61 FR 25416, May 21, (d)(1) For purposes of implementing
1996] the equivalent facilitation provision in
ADA Chapter 1, Section 103, of Appen-
§ 37.9 Standards for accessible trans- dix B to 36 CFR part 1191, the following
portation facilities. parties may submit to the Adminis-
(a) For purposes of this part, a trans- trator of the applicable operating ad-
portation facility shall be considered ministration a request for a determina-
to be readily accessible to and usable tion of equivalent facilitation:
by individuals with disabilities if it (i)(A) A public or private entity that
meets the requirements of this part provides transportation facilities sub-
and the requirements set forth in Ap- ject to the provisions of subpart C of
pendices B and D to 36 CFR part 1191, this part, or other appropriate party
which apply to buildings and facilities with the concurrence of the Adminis-
covered by the Americans with Disabil- trator.
ities Act, as modified by Appendix A to (B) With respect to airport facilities,
this part. an entity that is an airport operator
(b) Facility alterations begun before subject to the requirements of 49 CFR
January 26, 1992, in a good faith effort part 27 or regulations implementing
to make a facility accessible to indi- the Americans with Disabilities Act,
viduals with disabilities may be used to an air carrier subject to the require-
meet the key station requirements set ments of 14 CFR part 382, or other ap-
forth in §§ 37.47 and 37.51 of this part, propriate party with the concurrence
even if these alterations are not con- of the Administrator.
sistent with the requirements set forth (ii) The manufacturer of a product or
in Appendices B and D to 36 CFR part accessibility feature to be used in a
1191 and Appendix A to this part, if the transportation facility or facilities.
modifications complied with the Uni-
(2) The requesting party shall provide
form Federal Accessibility Standards
the following information with its re-
(UFAS) or ANSI A117.1(1980) (American
quest:
National Standards Specification for
Making Buildings and Facilities Acces- (i) Entity name, address, contact per-
sible to and Usable by the Physically son and telephone;
Handicapped). This paragraph applies (ii) Specific provision(s) of Appen-
only to alterations of individual ele- dices B and D to 36 CFR part 1191 or
ments and spaces and only to the ex- Appendix A to this part concerning
tent that provisions covering those ele- which the entity is seeking a deter-
ments or spaces are contained in UFAS mination of equivalent facilitation.
or ANSI A117.1, as applicable. (iii) [Reserved]
(c) (1) New construction or alter- (iv) Alternative method of compli-
ations of buildings or facilities on ance, with demonstration of how the
which construction has begun, or all alternative meets or exceeds the level
approvals for final design have been re- of accessibility or usability provided in
ceived, before November 29, 2006, are Appendices B and D to 36 CFR part 1191
not required to be consistent with the or Appendix A to this part; and
requirements set forth in Appendices B (v) Documentation of the public par-
and D to 36 CFR part 1191 and Appendix ticipation used in developing an alter-
A to this part, if the construction or native method of compliance.
alterations comply with the former Ap- (3) In the case of a request by a pub-
pendix A to this part, as codified in the lic entity that provides transportation
419
facilities (including an airport oper- (ii) Entities shall not cite these de-
ator), or a request by an air carrier terminations as indicating that a prod-
with respect to airport facilities, the uct or method constitutes equivalent
required public participation shall in- facilitation in situations, or classes of
clude the following: situations, other than those to which
(i) The entity shall contact individ- the determinations specifically per-
uals with disabilities and groups rep- tain.
resenting them in the community. Con- (iii) Entities shall not claim that a
sultation with these individuals and determination of equivalent facilita-
groups shall take place at all stages of tion indicates approval or endorsement
the development of the request for of any product or method by the Fed-
equivalent facilitation. All documents eral government, the Department of
and other information concerning the Transportation, or any of its operating
request shall be available, upon re- administrations.
quest, to Department of Transpor-
[71 FR 63265, Oct. 30, 2006]
tation officials and members of the
public. § 37.11 Administrative enforcement.
(ii) The entity shall make its pro-
posed request available for public com- (a) Recipients of Federal financial as-
ment before the request is made final sistance from the Department of
or transmitted to DOT. In making the Transportation are subject to adminis-
request available for public review, the trative enforcement of the require-
entity shall ensure that it is available, ments of this part under the provisions
upon request, in accessible formats. of 49 CFR part 27, subpart C.
(iii) The entity shall sponsor at least (b) Public entities, whether or not
one public hearing on the request and they receive Federal financial assist-
shall provide adequate notice of the ance, also are subject to enforcement
hearing, including advertisement in ap- action as provided by the Department
propriate media, such as newspapers of of Justice.
general and special interest circulation (c) Private entities, whether or not
and radio announcements. they receive Federal financial assist-
(4) In the case of a request by a man- ance, are also subject to enforcement
ufacturer or a private entity other action as provided in the regulations of
than an air carrier, the manufacturer the Department of Justice imple-
or private entity shall consult, in per- menting title III of the ADA (28 CFR
son, in writing, or by other appropriate part 36).
means, with representatives of na- [56 FR 45621, Sept. 6, 1991, as amended at 61
tional and local organizations rep- FR 25416, May 21, 1996]
resenting people with those disabilities
who would be affected by the request. § 37.13 Effective date for certain vehi-
(5) A determination of compliance cle specifications.
will be made by the Administrator of (a) The vehicle lift specifications
the concerned operating administra- identified in §§ 38.23(b)(6), 38.83(b)(6),
tion on a case-by-case basis, with the 38.95(b)(6), and 38.125(b)(6) of this title
concurrence of the Assistant Secretary apply to solicitations for vehicles
for Transportation Policy. under this part after January 25, 1992.
(6)(i) Determinations of equivalent
(b) The vehicle door height require-
facilitation are made only with respect
ments for vehicles over 22 feet identi-
to transportation facilities, and per-
fied in § 38.25(c) of this title apply to so-
tain only to the specific situation con-
licitations for vehicles under this part
cerning which the determination is
after January 25, 1992.
made. Provided, however, that with re-
spect to a product or accessibility fea- [56 FR 64215, Dec. 9, 1991]
ture that the Administrator deter-
mines can provide an equivalent facili- § 37.15 Temporary suspension of cer-
tation in a class of situations, the Ad- tain detectable warning require-
ministrator may make an equivalent ments.
facilitation determination applying to The detectable warning requirements
that class of situations. contained in sections 4.7.7, 4.29.5, and
420
4.29.6 of appendix A to this part are sus- tity, shall acquire accessible vehicles
pended temporarily until July 26, 2001. in all situations in which the public en-
[64 FR 64837, 64838, Nov. 23, 1998]
tity itself would be required to do so by
this part.
§§ 37.16–37.19 [Reserved] (c) A public entity which enters into
a contractual or other arrangement or
Subpart B—Applicability relationship with a private entity to
provide fixed route service shall ensure
§ 37.21 Applicability: General. that the percentage of accessible vehi-
(a) This part applies to the following cles operated by the public entity in its
entities, whether or not they receive overall fixed route or demand respon-
Federal financial assistance from the sive fleet is not diminished as a result.
Department of Transportation: (d) A private entity that provides
(1) Any public entity that provides fixed route or demand responsive trans-
designated public transportation or portation service under contract or
intercity or commuter rail transpor- other arrangement with another pri-
tation; vate entity shall be governed, for pur-
(2) Any private entity that provides poses of the transportation service in-
specified public transportation; and volved, by the provisions of this part
(3) Any private entity that is not pri- applicable to the other entity.
marily engaged in the business of
transporting people but operates a de- § 37.25 University transportation sys-
mand responsive or fixed route system. tems.
(b) For entities receiving Federal fi- (a) Transportation services operated
nancial assistance from the Depart- by private institutions of higher edu-
ment of Transportation, compliance cation are subject to the provisions of
with applicable requirements of this this part governing private entities not
part is a condition of compliance with primarily engaged in the business of
section 504 of the Rehabilitation Act of transporting people.
1973 and of receiving financial assist-
(b) Transportation systems operated
ance.
(c) Entities to which this part applies by public institutions of higher edu-
also may be subject to ADA regula- cation are subject to the provisions of
tions of the Department of Justice (28 this part governing public entities. If a
CFR parts 35 or 36, as applicable). The public institution of higher education
provisions of this part shall be inter- operates a fixed route system, the re-
preted in a manner that will make quirements of this part governing com-
them consistent with applicable De- muter bus service apply to that sys-
partment of Justice regulations. In any tem.
case of apparent inconsistency, the
§ 37.27 Transportation for elementary
provisions of this part shall prevail. and secondary education systems.
§ 37.23 Service under contract. (a) The requirements of this part do
(a) When a public entity enters into a not apply to public school transpor-
contractual or other arrangement or tation.
relationship with a private entity to (b) The requirements of this part do
operate fixed route or demand respon- not apply to the transportation of
sive service, the public entity shall en- school children to and from a private
sure that the private entity meets the elementary or secondary school, and
requirements of this part that would its school-related activities, if the
apply to the public entity if the public school is providing transportation serv-
entity itself provided the service. ice to students with disabilities equiva-
(b) A private entity which purchases lent to that provided to students with-
or leases new, used, or remanufactured out disabilities. The test of equivalence
vehicles, or remanufactures vehicles, is the same as that provided in § 37.105.
for use, or in contemplation of use, in If the school does not meet the require-
fixed route or demand responsive serv- ment of this paragraph for exemption
ice under contract or other arrange- from the requirements of this part, it
ment or relationship with a public en- is subject to the requirements of this
421
part for private entities not primarily minals, are subject to the requirements
engaged in transporting people. of this part for fixed route or demand
[56 FR 45621, Sept. 6, 1991, as amended at 61
responsive systems, as applicable, oper-
FR 25415, May 21, 1996] ated by public entities. Public airports
which operate fixed route transpor-
§ 37.29 Private entities providing taxi tation systems are subject to the re-
service. quirements of this part for commuter
(a) Providers of taxi service are sub- bus service operated by public entities.
ject to the requirements of this part The provision by an airport of addi-
for private entities primarily engaged tional accommodations (e.g., parking
in the business of transporting people spaces in a close-in lot) is not a sub-
which provide demand responsive serv- stitute for meeting the requirements of
ice. this part.
(b) Providers of taxi service are not (b) Fixed-route transportation sys-
required to purchase or lease accessible tems operated by public airport opera-
automobiles. When a provider of taxi tors between the airport and a limited
service purchases or leases a vehicle number of destinations in the area it
other than an automobile, the vehicle serves are subject to the provisions of
is required to be accessible unless the this part for commuter bus systems op-
provider demonstrates equivalency as erated by public entities.
provided in § 37.105 of this part. A pro- (c) Private jitney or shuttle services
vider of taxi service is not required to that provide transportation between an
purchase vehicles other than auto- airport and destinations in the area it
mobiles in order to have a number of serves in a route-deviation or other
accessible vehicles in its fleet. variable mode are subject to the re-
(c) Private entities providing taxi quirements of this part for private en-
service shall not discriminate against tities primarily engaged in the busi-
individuals with disabilities by actions ness of transporting people which pro-
including, but not limited to, refusing vide demand responsive service. They
to provide service to individuals with may meet equivalency requirements by
disabilities who can use taxi vehicles, such means as sharing or pooling ac-
refusing to assist with the stowing of cessible vehicles among operators, in a
mobility devices, and charging higher way that ensures the provision of
fares or fees for carrying individuals equivalent service.
with disabilities and their equipment
than are charged to other persons. § 37.35 Supplemental service for other
transportation modes.
§ 37.31 Vanpools. (a) Transportation service provided
Vanpool systems which are operated by bus or other vehicle by an intercity
by public entities, or in which public commuter or rail operator, as an exten-
entities own or purchase or lease the sion of or supplement to its rail serv-
vehicles, are subject to the require- ice, and which connects an intercity
ments of this part for demand respon- rail station and limited other points, is
sive service for the general public oper- subject to the requirements of this part
ated by public entities. A vanpool sys- for fixed route commuter bus service
tem in this category is deemed to be operated by a public entity.
providing equivalent service to individ- (b) Dedicated bus service to com-
uals with disabilities if a vehicle that muter rail systems, with through
an individual with disabilities can use ticketing arrangements and which is
is made available to and used by a van- available only to users of the com-
pool in which such an individual choos- muter rail system, is subject to the re-
es to participate. quirements of this part for fixed route
commuter bus service operated by a
§ 37.33 Airport transportation systems. public entity.
(a) Transportation systems operated
by public airport operators, which pro- § 37.37 Other applications.
vide designated public transportation (a) A private entity does not become
and connect parking lots and terminals subject to the requirements of this part
or provide transportation among ter- for public entities, because it receives
422
an operating subsidy from, is regulated marily engaged in the business of

by, or is granted a franchise or permit transporting people.
to operate by a public entity. (g) High-speed rail systems operated
(b) Shuttle systems and other trans- by public entities are subject to the re-
portation services operated by pri- quirements of this part governing
vately-owned hotels, car rental agen- intercity rail systems.
cies, historical or theme parks, and (h) Private rail systems providing
other public accommodations are sub- fixed route or specified public transpor-
ject to the requirements of this part tation service are subject to the re-
for private entities not primarily en- quirements of § 37.107 with respect to
gaged in the business of transporting the acquisition of rail passenger cars.
people. Either the requirements for de- Such systems are subject to the re-
mand responsive or fixed route service quirements of the regulations of the
may apply, depending upon the charac- Department of Justice implementing
teristics of each individual system of title III of the ADA (28 CFR part 36)
transportation. with respect to stations and other fa-
(c) Conveyances used by members of cilities.
the public primarily for recreational
purposes rather than for transpor- § 37.39 [Reserved]
tation (e.g., amusement park rides, ski
lifts, or historic rail cars or trolleys Subpart C—Transportation
operated in museum settings) are not Facilities
subject to the requirements of this
part. Such conveyances are subject to § 37.41 Construction of transportation
Department of Justice regulations im- facilities by public entities.
plementing title II or title III of the (a) A public entity shall construct
ADA (28 CFR part 35 or 36), as applica- any new facility to be used in providing
ble. designated public transportation serv-
(d) Transportation services provided ices so that the facility is readily ac-
by an employer solely for its own em- cessible to and usable by individuals
ployees are not subject to the require- with disabilities, including individuals
ments of this part. Such services are who use wheelchairs. This requirement
subject to the regulations of the Equal also applies to the construction of a
Employment Opportunity Commission new station for use in intercity or com-
under title I of the ADA (29 CFR part muter rail transportation. For pur-
1630) and, with respect to public enti- poses of this section, a facility or sta-
ties, the regulations of the Department tion is ‘‘new’’ if its construction begins
of Justice under title II of the ADA (28 (i.e., issuance of notice to proceed)
CFR part 35). after January 25, 1992, or, in the case of
(e) Transportation systems operated intercity or commuter rail stations,
by private clubs or establishments ex- after October 7, 1991.
empted from coverage under title II of (b) (1) Full compliance with the re-
the Civil Rights Act of 1964 (42 U.S.C. quirements of this section is not re-
2000–a(e)) or religious organizations or quired where an entity can dem-
entities controlled by religious organi- onstrate that it is structurally imprac-
zations are not subject to the require- ticable to meet the requirements. Full
ments of this part. compliance will be considered struc-
(f) If a parent private company is not turally impracticable only in those
primarily engaged in the business of rare circumstances when the unique
transporting people, or is not a place of characteristics of terrain prevent the
public accommodation, but a sub- incorporation of accessibility features.
sidiary company or an operationally (2) If full compliance with this sec-
distinct segment of the company is pri- tion would be structurally impracti-
marily engaged in the business of cable, compliance with this section is
transporting people, the transportation required to the extent that it is not
service provided by the subsidiary or structurally impracticable. In that
segment is subject to the requirements case, any portion of the facility that
of this part for private entities pri- can be made accessible shall be made
423
accessible to the extent that it is not owner of, or person in control of the
structurally impracticable. station.
(3) If providing accessibility in con- (4) The requirements of this section
formance with this section to individ- apply to any alteration which begins
uals with certain disabilities (e.g., (i.e., issuance of notice to proceed or
those who use wheelchairs) would be work order, as applicable) after Janu-
structurally impracticable, accessi- ary 25, 1992, or, in the case of intercity
bility shall nonetheless be ensured to and commuter rail stations, after Octo-
persons with other types of disabilities ber 7, 1991.
(e.g., those who use crutches or who (b) As used in this section, the phrase
have sight, hearing, or mental impair- to the maximum extent feasible applies to
ments) in accordance with this section. the occasional case where the nature of
an existing facility makes it impos-
[56 FR 45621, Sept. 6, 1991, as amended by 71 sible to comply fully with applicable
FR 63266, Oct. 30, 2006] accessibility standards through a
planned alteration. In these cir-
§ 37.43 Alteration of transportation fa-
cilities by public entities. cumstances, the entity shall provide
the maximum physical accessibility
(a)(1) When a public entity alters an feasible. Any altered features of the fa-
existing facility or a part of an existing cility or portion of the facility that
facility used in providing designated can be made accessible shall be made
public transportation services in a way accessible. If providing accessibility to
that affects or could affect the certain individuals with disabilities
usability of the facility or part of the (e.g., those who use wheelchairs) would
facility, the entity shall make the al- not be feasible, the facility shall be
terations (or ensure that the alter- made accessible to individuals with
ations are made) in such a manner, to other types of disabilities (e.g., those
the maximum extent feasible, that the who use crutches, those who have im-
altered portions of the facility are paired vision or hearing, or those who
readily accessible to and usable by in- have other impairments).
dividuals with disabilities, including (c) As used in this section, a primary
individuals who use wheelchairs, upon function is a major activity for which
the completion of such alterations. the facility is intended. Areas of trans-
(2) When a public entity undertakes portation facilities that involve pri-
an alteration that affects or could af- mary functions include, but are not
fect the usability of or access to an necessarily limited to, ticket purchase
area of a facility containing a primary and collection areas, passenger waiting
function, the entity shall make the al- areas, train or bus platforms, baggage
teration in such a manner that, to the checking and return areas and employ-
maximum extent feasible, the path of ment areas (except those involving
travel to the altered area and the bath- non-occupiable spaces accessed only by
rooms, telephones, and drinking foun- ladders, catwalks, crawl spaces, very
tains serving the altered area are read- narrow passageways, or freight (non-
ily accessible to and usable by individ- passenger) elevators which are fre-
uals with disabilities, including indi- quented only by repair personnel).
viduals who use wheelchairs, upon (d) As used in this section, a ‘‘path of
completion of the alterations. Provided, travel’’ includes a continuous, unob-
that alterations to the path of travel, structed way of pedestrian passage by
drinking fountains, telephones and means of which the altered area may
bathrooms are not required to be made be approached, entered, and exited, and
readily accessible to and usable by in- which connects the altered area with
dividuals with disabilities, including an exterior approach (including side-
individuals who use wheelchairs, if the walks, parking areas, and streets), an
cost and scope of doing so would be dis- entrance to the facility, and other
proportionate. parts of the facility. The term also in-
(3) The requirements of this para- cludes the restrooms, telephones, and
graph also apply to the alteration of drinking fountains serving the altered
existing intercity or commuter rail area. An accessible path of travel may
stations by the responsible person for, include walks and sidewalks, curb
424
ramps and other interior or exterior (g) If a public entity performs a se-
pedestrian ramps, clear floor paths ries of small alterations to the area
through corridors, waiting areas, con- served by a single path of travel rather
courses, and other improved areas, than making the alterations as part of
parking access aisles, elevators and a single undertaking, it shall nonethe-
lifts, bridges, tunnels, or other passage- less be responsible for providing an ac-
ways between platforms, or a combina- cessible path of travel.
tion of these and other elements. (h)(1) If an area containing a primary
(e)(1) Alterations made to provide an function has been altered without pro-
accessible path of travel to the altered viding an accessible path of travel to
area will be deemed disproportionate that area, and subsequent alterations
to the overall alteration when the cost of that area, or a different area on the
exceeds 20 percent of the cost of the al- same path of travel, are undertaken
teration to the primary function area within three years of the original alter-
(without regard to the costs of accessi- ation, the total cost of alteration to
bility modifications). the primary function areas on that
(2) Costs that may be counted as ex- path of travel during the preceding
penditures required to provide an ac- three year period shall be considered in
cessible path of travel include: determining whether the cost of mak-
(i) Costs associated with providing an ing that path of travel is dispropor-
accessible entrance and an accessible tionate;
route to the altered area (e.g., wid- (2) For the first three years after
ening doorways and installing ramps); January 26, 1992, only alterations un-
(ii) Costs associated with making dertaken between that date and the
restrooms accessible (e.g., grab bars, date of the alteration at issue shall be
enlarged toilet stalls, accessible faucet considered in determining if the cost of
controls); providing accessible features is dis-
(iii) Costs associated with providing proportionate to the overall cost of the
accessible telephones (e.g., relocation alteration.
of phones to an accessible height, in- (3) Only alterations undertaken after
stallation of amplification devices or January 26, 1992, shall be considered in
TDDs); determining if the cost of providing an
(iv) Costs associated with relocating accessible path of travel is dispropor-
an inaccessible drinking fountain. tionate to the overall cost of the alter-
ation.
(f)(1) When the cost of alterations
necessary to make a path of travel to § 37.45 Construction and alteration of
the altered area fully accessible is dis- transportation facilities by private
proportionate to the cost of the overall entities.
alteration, then such areas shall be In constructing and altering transit
made accessible to the maximum ex- facilities, private entities shall comply
tent without resulting in dispropor- with the regulations of the Department
tionate costs; of Justice implementing Title III of the
(2) In this situation, the public entity ADA (28 CFR part 36).
should give priority to accessible ele-
ments that will provide the greatest § 37.47 Key stations in light and rapid
access, in the following order: rail systems.
(i) An accessible entrance; (a) Each public entity that provides
(ii) An accessible route to the altered designated public transportation by
area; means of a light or rapid rail system
(iii) At least one accessible restroom shall make key stations on its system
for each sex or a single unisex restroom readily accessible to and usable by in-
(where there are one or more rest- dividuals with disabilities, including
rooms); individuals who use wheelchairs. This
(iv) Accessible telephones; requirement is separate from and in ad-
(v) Accessible drinking fountains; dition to requirements set forth in
(vi) When possible, other accessible § 37.43 of this part.
elements (e.g., parking, storage, (b) Each public entity shall deter-
alarms). mine which stations on its system are
425
key stations. The entity shall identify on it. The plan submitted to FTA shall
key stations, using the planning and document this public participation, in-
public participation process set forth cluding summaries of the consultation
in paragraph (d) of this section, and with individuals with disabilities and
taking into consideration the following the comments received at the hearing
criteria: and during the comment period. The
(1) Stations where passenger plan also shall summarize the public
boardings exceed average station pas- entity’s responses to the comments and
senger boardings on the rail system by consultation.
at least fifteen percent, unless such a (2) The plan shall establish mile-
station is close to another accessible stones for the achievement of required
station; accessibility of key stations, con-
(2) Transfer stations on a rail line or sistent with the requirements of this
between rail lines; section.
(3) Major interchange points with (e) A public entity wishing to apply
other transportation modes, including for an extension of the July 26, 1993,
stations connecting with major park- deadline for key station accessibility
ing facilities, bus terminals, intercity shall include a request for an extension
or commuter rail stations, passenger with its plan submitted to FTA under
vessel terminals, or airports; paragraph (d) of this section. Exten-
(4) End stations, unless an end sta- sions may be granted only with respect
tion is close to another accessible sta- to key stations which need extraor-
tion; and dinarily expensive structural changes
(5) Stations serving major activity to, or replacement of, existing facili-
centers, such as employment or gov- ties (e.g., installations of elevators,
ernment centers, institutions of higher raising the entire passenger platform,
education, hospitals or other major or alterations of similar magnitude and
health care facilities, or other facili- cost). Requests for extensions shall
ties that are major trip generators for provide for completion of key station
individuals with disabilities. accessibility within the time limits set
(c)(1) Unless an entity receives an ex- forth in paragraph (c) of this section.
tension under paragraph (c)(2) of this The FTA Administrator may approve,
section, the public entity shall achieve approve with conditions, modify, or
accessibility of key stations as soon as disapprove any request for an exten-
possible, but in no case later than July sion.
26, 1993, except that an entity is not re- [56 FR 45621, Sept. 6, 1991, as amended at 58
quired to complete installation of de- FR 63102, Nov. 30, 1993]
tectable warnings required by section
10.3.2(2) of appendix A to this part until § 37.49 Designation of responsible per-
July 26, 1994. son(s) for intercity and commuter
(2) The FTA Administrator may rail stations.
grant an extension of this completion (a) The responsible person(s) des-
date for key station accessibility for a ignated in accordance with this section
period up to July 26, 2020, provided that shall bear the legal and financial re-
two-thirds of key stations are made ac- sponsibility for making a key station
cessible by July 26, 2010. Extensions accessible in the same proportion as
may be granted as provided in para- determined under this section.
graph (e) of this section. (b) In the case of a station more than
(d) The public entity shall develop a fifty percent of which is owned by a
plan for compliance for this section. public entity, the public entity is the
The plan shall be submitted to the ap- responsible party.
propriate FTA regional office by July (c) In the case of a station more than
26, 1992. (See appendix B to this part for fifty percent of which is owned by a
list.) private entity the persons providing
(1) The public entity shall consult commuter or intercity rail service to
with individuals with disabilities af- the station are the responsible parties,
fected by the plan. The public entity in a proportion equal to the percentage
also shall hold at least one public hear- of all passenger boardings at the sta-
ing on the plan and solicit comments tion attributable to the service of each,
426
over the entire period during which the (2) Transfer stations on a rail line or
station is made accessible. between rail lines;
(d) In the case of a station of which (3) Major interchange points with
no entity owns more than fifty percent, other transportation modes, including
the owners of the station (other than stations connecting with major park-
private entity owners) and persons pro- ing facilities, bus terminals, intercity
viding intercity or commuter rail serv- or commuter rail stations, passenger
ice to the station are the responsible vessel terminals, or airports;
persons. (4) End stations, unless an end sta-
(1) Half the responsibility for the station is close to another accessible sta-
tion shall be assumed by the owner(s) tion; and
of the station. The owners shall share (5) Stations serving major activity
this responsibility in proportion to centers, such as employment or gov-
their ownership interest in the station, ernment centers, institutions of higher
over the period during which the sta- education, hospitals or other major
tion is made accessible. health care facilities, or other facili-
(2) The person(s) providing commuter ties that are major trip generators for
or intercity rail service to the station individuals with disabilities.
shall assume the other half of the re- (c)(1) Except as provided in this para-
graph, the responsible person(s) shall
sponsibility. These persons shall share
achieve accessibility of key stations as
this responsibility. These persons shall
soon as possible, but in no case later
share this responsibility for the station
than July 26, 1993, except that an enti-
in a proportion equal to the percentage
ty is not required to complete installa-
of all passenger boardings at the sta-
tion of detectable warnings required by
tion attributable to the service of each,
section 10.3.2(2) of appendix A to this
over the period during which the sta-
part until July 26, 1994.
tion is made accessible.
(2) The FTA Administrator may
(e) Persons who must share responsi- grant an extension of this deadline for
bility for station accessibility under key station accessibility for a period
paragraphs (c) and (d) of this section up to July 26, 2010. Extensions may be
may, by agreement, allocate their re- granted as provided in paragraph (e) of
sponsibility in a manner different from this section.
that provided in this section. (d) The commuter authority and re-
sponsible person(s) for stations in-
§ 37.51 Key stations in commuter rail
systems. volved shall develop a plan for compli-
ance for this section. This plan shall be
(a) The responsible person(s) shall completed and submitted to FTA by
make key stations on its system read- July 26, 1992.
ily accessible to and usable by individ- (1) The commuter authority and re-
uals with disabilities, including indi- sponsible person(s) shall consult with
viduals who use wheelchairs. This re- individuals with disabilities affected by
quirement is separate from and in addi- the plan. The commuter authority and
tion to requirements set forth in § 37.43 responsible person(s) also shall hold at
of this part. least one public hearing on the plan
(b) Each commuter authority shall and solicit comments on it. The plan
determine which stations on its system shall document this public participa-
are key stations. The commuter au- tion, including summaries of the con-
thority shall identify key stations, sultation with individuals with disabil-
using the planning and public partici- ities and the comments received at the
pation process set forth in paragraph hearing and during the comment pe-
(d) of this section, and taking into con- riod. The plan also shall summarize the
sideration the following criteria: responsible person(s) responses to the
(1) Stations where passenger comments and consultation.
boardings exceed average station pas- (2) The plan shall establish mile-
senger boardings on the rail system by stones for the achievement of required
at least fifteen percent, unless such a accessibility of key stations, con-
station is close to another accessible sistent with the requirements of this
station; section.
427
(3) The commuter authority and re- (2) Settlement Agreement by and be-
sponsible person(s) of each key station tween Eastern Paralyzed Veterans As-
identified in the plan shall, by mutual sociation of Pennsylvania, Inc., and
agreement, designate a project man- James J. Peters, individually; and Dud-
ager for the purpose of undertaking the ley R. Sykes, as Commissioner of the
work of making the key station acces- Philadelphia Department of Public
sible. Property, and his successors in office
(e) Any commuter authority and/or and the City of Philadelphia (collec-
responsible person(s) wishing to apply tively ‘‘the City’’) and Southeastern
for an extension of the July 26, 1993, Pennsylvania Transportation Author-
deadline for key station accessibility ity (June 28, 1989).
shall include a request for extension (b) To comply with §§ 37.47 (b) and (d)
with its plan submitted to under para- or 37.51 (b) and (d) of this part, the en-
graph (d) of this section. Extensions tities named in the agreements are re-
may be granted only in a case where quired to use their public participation
raising the entire passenger platform is and planning processes only to develop
the only means available of attaining and submit to the FTA Administrator
accessibility or where other extraor- plans for timely completion of key sta-
dinarily expensive structural changes tion accessibilty, as provided in this
(e.g., installations of elevators, or al- subpart.
terations of magnitude and cost simi- (c) In making accessible the key sta-
lar to installing an elevator or raising tions identified under the agreements
the entire passenger platform) are nec- cited in this section, the entities
essary to attain accessibility. Requests named in the agreements are subject to
for extensions shall provide for comple- the requirements of § 37.9 of this part.
tion of key station accessibility within
the time limits set forth in paragraph § 37.55 Intercity rail station accessi-
(c) of this section. The FTA Adminis- bility.
trator may approve, approve with con- All intercity rail stations shall be
ditions, modify, or disapprove any re- made readily accessible to and usable
quest for an extension. by individuals with disabilities, includ-
[56 FR 45621, Sept. 6, 1991, as amended at 58 ing individuals who use wheelchairs, as
FR 63102, Nov. 30, 1993] soon as practicable, but in no event
later than July 26, 2010. This require-
§ 37.53 Exception for New York and ment is separate from and in addition
Philadelphia. to requirements set forth in § 37.43 of
(a) The following agreements entered this part.
into in New York, New York, and
Philadelphia, Pennsylvania, contain § 37.57 Required cooperation.
lists of key stations for the public enti- An owner or person in control of an
ties that are a party to those agree- intercity or commuter rail station
ments for those service lines identified shall provide reasonable cooperation to
in the agreements. The identification the responsible person(s) for that sta-
of key stations under these agreements tion with respect to the efforts of the
is deemed to be in compliance with the responsible person to comply with the
requirements of this Subpart. requirements of this subpart.
(1) Settlement Agreement by and
among Eastern Paralyzed Veterans As- § 37.59 Differences in accessibility
sociation, Inc., James J. Peters, completion dates.
Terrance Moakley, and Denise Where different completion dates for
Figueroa, individually and as rep- accessible stations are established
resentatives of the class of all persons under this part for a station or por-
similarly situated (collectively, ‘‘the tions of a station (e.g., extensions of
EPVA class representatives’’); and different periods of time for a station
Metropolitan Transportation Author- which serves both rapid and commuter
ity, New York City Transit Authority, rail systems), accessibility to the fol-
and Manhattan and Bronx Surface lowing elements of the station shall be
Transit Operating Authority (October achieved by the earlier of the comple-
4, 1984). tion dates involved:
428
(a) Common elements of the station; with disabilities, including individuals

(b) Portions of the facility directly who use wheelchairs.
serving the rail system with the earlier (b) A pubilc entity may purchase or
completion date; and lease a new bus that is not readily ac-
(c) An accessible path from common cessible to and usable by individuals
elements of the station to portions of with disabilities, including individuals
the facility directly serving the rail who use wheelchairs, if it applies for,
system with the earlier completion and the FTA Administrator grants, a
date. waiver as provided for in this section.
(c) Before submitting a request for
§ 37.61 Public transportation programs such a waiver, the public entity shall
and activities in existing facilities.
hold at least one public hearing con-
(a) A public entity shall operate a cerning the proposed request.
designated public transportation pro- (d) The FTA Administrator may
gram or activity conducted in an exist- grant a request for such a waiver if the
ing facility so that, when viewed in its public entity demonstrates to the FTA
entirety, the program or activity is Administrator’s satisfaction that—
readily accessible to and usable by in- (1) The initial solicitation for new
dividuals with disabilities.
buses made by the public entity speci-
(b) This section does not require a fied that all new buses were to be lift-
public entity to make structural equipped and were to be otherwise ac-
changes to existing facilities in order
cessible to and usable by individuals
to make the facilities accessible by in-
with disabilities;
dividuals who use wheelchairs, unless
and to the extent required by § 37.43 (2) Hydraulic, electromechanical, or
(with respect to alterations) or §§ 37.47 other lifts for such new buses could not
or 37.51 of this part (with respect to be provided by any qualified lift manu-
key stations). Entities shall comply facturer to the manufacturer of such
with other applicable accessibility renew buses in sufficient time to comply
quirements for such facilities. with the solicitation; and
(c) Public entities, with respect to fa- (3) Any further delay in purchasing
cilities that, as provided in paragraph new buses equipped with such nec-
(b) of this section, are not required to essary lifts would significantly impair
be made accessible to individuals who transportation services in the commu-
use wheelchairs, are not required to nity served by the public entity.
provide to such individuals services (e) The public entity shall include
made available to the general public at with its waiver request a copy of the
such facilities when the individuals initial solicitation and written docu-
could not utilize or benefit from the mentation from the bus manufacturer
services. of its good faith efforts to obtain lifts
in time to comply with the solicita-
§§ 37.63–37.69 [Reserved] tion, and a full justification for the as-
sertion that the delay in bus procure-
Subpart D—Acquisition of Acces- ment needed to obtain a lift-equipped
sible Vehicles By Public Enti- bus would significantly impair trans-
ties portation services in the community.
This documentation shall include a
§ 37.71 Purchase or lease of new non- specific date at which the lifts could be
rail vehicles by public entities oper- supplied, copies of advertisements in
ating fixed route systems. trade publications and inquiries to
(a) Except as provided elsewhere in trade associations seeking lifts, and
this section, each public entity oper- documentation of the public hearing.
ating a fixed route system making a (f) Any waiver granted by the FTA
solicitation after August 25, 1990, to Administrator under this section shall
purchase or lease a new bus or other be subject to the following conditions:
new vehicle for use on the system, (1) The waiver shall apply only to the
shall ensure that the vehicle is readily particular bus delivery to which the
accessible to and usable by individuals waiver request pertains;
429
(2) The waiver shall include a termi- used vehicle dealers and other transit
nation date, which will be based on in- providers; and
formation concerning when lifts will (3) Advertising in trade publications
become available for installation on and contacting trade associations.
the new buses the public entity is pur- (d) Each public entity purchasing or
chasing. Buses delivered after this leasing used vehicles that are not read-
date, even though procured under a so- ily accessible to and usable by individ-
licitation to which a waiver applied, uals with disabilities shall retain docu-
shall be equipped with lifts; mentation of the specific good faith ef-
(3) Any bus obtained subject to the forts it made for three years from the
waiver shall be capable of accepting a date the vehicles were purchased.
lift, and the public entity shall install These records shall be made available,
a lift as soon as one becomes available; on request, to the FTA Administrator
(4) Such other terms and conditions and the public.
as the FTA Administrator may impose.
§ 37.75 Remanufacture of non-rail ve-
(g)(1) When the FTA Administrator hicles and purchase or lease of re-
grants a waiver under this section, he/ manufactured non-rail vehicles by
she shall promptly notify the appro- public entities operating fixed
priate committees of Congress. route systems.
(2) If the FTA Administrator has rea- (a) This section applies to any public
sonable cause to believe that a public entity operating a fixed route system
entity fraudulently applied for a waiv- which takes one of the following ac-
er under this section, the FTA Admin- tions:
istrator shall: (1) After August 25, 1990, remanufac-
(i) Cancel the waiver if it is still in tures a bus or other vehicle so as to ex-
effect; and tend its useful life for five years or
(ii) Take other appropriate action. more or makes a solicitation for such
remanufacturing; or
§ 37.73 Purchase or lease of used non- (2) Purchases or leases a bus or other
rail vehicles by public entities oper-
ating fixed route systems. vehicle which has been remanufactured
so as to extend its useful life for five
(a) Except as provided elsewhere in years or more, where the purchase or
this section, each public entity oper- lease occurs after August 25, 1990, and
ating a fixed route system purchasing during the period in which the useful
or leasing, after August 25, 1990, a used life of the vehicle is extended.
bus or other used vehicle for use on the (b) Vehicles acquired through the ac-
system, shall ensure that the vehicle is tions listed in paragraph (a) of this sec-
readily accessible to and usable by in- tion shall, to the maximum extent fea-
dividuals with disabilities, including sible, be readily accessible to and usa-
individuals who use wheelchairs. ble by individuals with disabilities, in-
(b) A public entity may purchase or cluding individuals who use wheel-
lease a used vehicle for use on its fixed chairs.
route system that is not readily acces- (c) For purposes of this section, it
sible to and usable by individuals with shall be considered feasible to remanu-
disabilities if, after making dem- facture a bus or other motor vehicle so
onstrated good faith efforts to obtain as to be readily accessible to and usa-
an accessible vehicle, it is unable to do ble by individuals with disabilities, in-
so. cluding individuals who use wheel-
(c) Good faith efforts shall include at chairs, unless an engineering analysis
least the following steps: demonstrates that including accessi-
(1) An initial solicitation for used ve- bility features required by this part
hicles specifying that all used vehicles would have a significant adverse effect
are to be lift-equipped and otherwise on the structural integrity of the vehi-
accessible to and usable by individuals cle.
with disabilities, or, if an initial solici- (d) If a public entity operates a fixed
tation is not used, a documented com- route system, any segment of which is
munication so stating; included on the National Register of
(2) A nationwide search for accessible Historic Places, and if making a vehi-
vehicles, involving specific inquiries to cle of historic character used solely on
430
such segment readily accessible to and (2) Fares;

usable by individuals with disabilities (3) Geographic area of service;
would significantly alter the historic (4) Hours and days of service;
character of such vehicle, the public (5) Restrictions or priorities based on
entity has only to make (or purchase trip purpose;
or lease a remanufactured vehicle (6) Availability of information and
with) those modifications to make the reservations capability; and
vehicle accessible which do not alter
(7) Any constraints on capacity or
the historic character of such vehicle,
service availability.
in consultation with the National Reg-
ister of Historic Places. (d) A public entity receiving FTA
funds under section 18 or a public enti-
(e) A public entity operating a fixed
ty in a small urbanized area which re-
route system as described in paragraph
ceives FTA funds under Section 9 from
(d) of this section may apply in writing
to the FTA Administrator for a deter- a state administering agency rather
mination of the historic character of than directly from FTA, which deter-
the vehicle. The FTA Administrator mines that its service to individuals
shall refer such requests to the Na- with disabilities is equivalent to that
tional Register of Historic Places, and provided other persons shall, before
shall rely on its advice in making de- any procurement of an inaccessible ve-
terminations of the historic character hicle, file with the appropriate state
of the vehicle. program office a certificate that it pro-
vides equivalent service meeting the
§ 37.77 Purchase or lease of new non- standards of paragraph (c) of this sec-
rail vehicles by public entities oper- tion. Public entities operating demand
ating a demand responsive system responsive service receiving funds
for the general public. under any other section of the FT Act
(a) Except as provided in this section, shall file the certificate with the ap-
a public entity operating a demand re- propriate FTA regional office. A public
sponsive system for the general public entity which does not receive FTA
making a solicitation after August 25, funds shall make such a certificate and
1990, to purchase or lease a new bus or retain it in its files, subject to inspec-
other new vehicle for use on the sys- tion on request of FTA. All certificates
tem, shall ensure that the vehicle is under this paragraph may be made and
readily accessible to and usable by in- filed in connection with a particular
dividuals with disabilities, including procurement or in advance of a pro-
individuals who use wheelchairs. curement; however, no certificate shall
(b) If the system, when viewed in its be valid for more than one year. A copy
entirety, provides a level of service to of the required certificate is found in
individuals with disabilities, including appendix C to this part.
individuals who use wheelchairs, equiv- (e) The waiver mechanism set forth
alent to the level of service it provides in § 37.71(b)–(g) (unavailability of lifts)
to individuals without disabilities, it of this subpart shall also be available
may purchase new vehicles that are to public entities operating a demand
not readily accessible to and usable by responsive system for the general pub-
individuals with disabilities. lic.
(c) For purposes of this section, a de-
mand responsive system, when viewed § 37.79 Purchase or lease of new rail
in its entirety, shall be deemed to pro- vehicles by public entities oper-
vide equivalent service if the service ating rapid or light rail systems.
available to individuals with disabil- Each public entity operating a rapid
ities, including individuals who use or light rail system making a solicita-
wheelchairs, is provided in the most in- tion after August 25, 1990, to purchase
tegrated setting appropriate to the or lease a new rapid or light rail vehi-
needs of the individual and is equiva- cle for use on the system shall ensure
lent to the service provided other indi- that the vehicle is readily accessible to
viduals with respect to the following and usable by individuals with disabil-
service characteristics: ities, including individuals who use
(1) Response time; wheelchairs.
431
§ 37.81 Purchase or lease of used rail or more or makes a solicitation for

vehicles by public entities oper- such remanufacturing;
ating rapid or light rail systems. (2) Purchases or leases a light or
(a) Except as provided elsewhere in rapid rail vehicle which has been re-
this section, each public entity oper- manufactured so as to extend its useful
ating a rapid or light rail system life for five years or more, where the
which, after August 25, 1990, purchases purchase or lease occurs after August
or leases a used rapid or light rail vehi- 25, 1990, and during the period in which
cle for use on the system shall ensure the useful life of the vehicle is ex-
that the vehicle is readily accessible to tended.
and usable by individuals with disabil- (b) Vehicles acquired through the ac-
ities, including individuals who use tions listed in paragraph (a) of this sec-
wheelchairs. tion shall, to the maximum extent fea-
(b) A public entity may purchase or sible, be readily accessible to and usa-
lease a used rapid or light rail vehicle ble by individuals with disabilities, in-
for use on its rapid or light rail system cluding individuals who use wheel-
that is not readily accessible to and us- chairs.
able by individuals if, after making (c) For purposes of this section, it
demonstrated good faith efforts to ob- shall be considered feasible to remanu-
tain an accessible vehicle, it is unable facture a rapid or light rail vehicle so
to do so. as to be readily accessible to and usa-
(c) Good faith efforts shall include at ble by individuals with disabilities, in-
least the following steps: cluding individuals who use wheel-
(1) The initial solicitation for used chairs, unless an engineering analysis
vehicles made by the public entity demonstrates that doing so would have
specifying that all used vehicles were a significant adverse effect on the
to be accessible to and usable by indi- structural integrity of the vehicle.
viduals with disabilities, or, if a solici- (d) If a public entity operates a rapid
tation is not used, a documented com- or light rail system any segment of
munication so stating; which is included on the National Reg-
(2) A nationwide search for accessible ister of Historic Places and if making a
vehicles, involving specific inquiries to rapid or light rail vehicle of historic
manufacturers and other transit pro- character used solely on such segment
viders; and readily accessible to and usable by in-
(3) Advertising in trade publications dividuals with disabilities would sig-
and contacting trade associations. nificantly alter the historic character
(d) Each public entity purchasing or of such vehicle, the public entity need
leasing used rapid or light rail vehicles only make (or purchase or lease a re-
that are not readily accessible to and manufactured vehicle with) those
usable by individuals with disabilities modifications that do not alter the his-
shall retain documentation of the spe- toric character of such vehicle.
cific good faith efforts it made for (e) A public entity operating a fixed
three years from the date the vehicles route system as described in paragraph
were purchased. These records shall be (d) of this section may apply in writing
made available, on request, to the FTA to the FTA Administrator for a deter-
Administrator and the public. mination of the historic character of
the vehicle. The FTA Administrator
§ 37.83 Remanufacture of rail vehicles shall refer such requests to the Na-
and purchase or lease of remanu- tional Register of Historic Places and
factured rail vehicles by public en- shall rely on its advice in making a de-
tities operating rapid or light rail termination of the historic character
systems. of the vehicle.
(a) This section applies to any public
entity operating a rapid or light rail § 37.85 Purchase or lease of new inter-
system which takes one of the fol- city and commuter rail cars.
lowing actions: Amtrak or a commuter authority
(1) After August 25, 1990, remanufac- making a solicitation after August 25,
tures a light or rapid rail vehicle so as 1990, to purchase or lease a new inter-
to extend its useful life for five years city or commuter rail car for use on
432
the system shall ensure that the vehi- (e) Amtrak and commuter authori-
cle is readily accessible to and usable ties purchasing or leasing used inter-
by individuals with disabilities, includ- city or commuter rail cars that are not
ing individuals who use wheelchairs. readily accessible to and usable by in-
dividuals with disabilities shall retain
§ 37.87 Purchase or lease of used inter- documentation of the specific good
city and commuter rail cars. faith efforts that were made for three
(a) Except as provided elsewhere in years from the date the cars were pur-
this section, Amtrak or a commuter chased. These records shall be made
authority purchasing or leasing a used available, on request, to the Federal
intercity or commuter rail car after Railroad Administration or FTA Ad-
August 25, 1990, shall ensure that the ministrator, as applicable. These
car is readily accessible to and usable records shall be made available to the
by individuals with disabilities, includ- public, on request.
ing individuals who use wheelchairs. [56 FR 45621, Sept. 6, 1991, as amended at 58
(b) Amtrak or a commuter authority FR 63102, Nov. 30, 1993]
may purchase or lease a used intercity
or commuter rail car that is not read- § 37.89 Remanufacture of intercity and
ily accessible to and usable by individ- commuter rail cars and purchase or
uals if, after making demonstrated lease of remanufactured intercity
good faith efforts to obtain an acces- and commuter rail cars.
sible vehicle, it is unable to do so. (a) This section applies to Amtrak or
(c) Good faith efforts shall include at a commuter authority which takes one
least the following steps: of the following actions:
(1) An initial solicitation for used ve- (1) Remanufactures an intercity or
hicles specifying that all used vehicles commuter rail car so as to extend its
accessible to and usable by individuals useful life for ten years or more;
with disabilities; (2) Purchases or leases an intercity
(2) A nationwide search for accessible or commuter rail car which has been
vehicles, involving specific inquiries to remanufactured so as to extend its use-
used vehicle dealers and other transit ful life for ten years or more.
providers; and (b) Intercity and commuter rail cars
(3) Advertising in trade publications listed in paragraph (a) of this section
and contacting trade associations. shall, to the maximum extent feasible,
(d) When Amtrak or a commuter au- be readily accessible to and usable by
thority leases a used intercity or com- individuals with disabilities, including
muter rail car for a period of seven individuals who use wheelchairs.
days or less, Amtrak or the commuter (c) For purposes of this section, it
authority may make and document shall be considered feasible to remanu-
good faith efforts as provided in this facture an intercity or commuter rail
paragraph instead of in the ways pro- car so as to be readily accessible to and
vided in paragraph (c) of this section: usable by individuals with disabilities,
(1) By having and implementing, in including individuals who use wheel-
its agreement with any intercity rail- chairs, unless an engineering analysis
road or commuter authority that demonstrates that remanufacturing
serves as a source of used intercity or the car to be accessible would have a
commuter rail cars for a lease of seven significant adverse effect on the struc-
days or less, a provision requiring that tural integrity of the car.
the lessor provide all available acces-
sible rail cars before providing any in- § 37.91 Wheelchair locations and food
accessible rail cars. service on intercity rail trains.
(2) By documenting that, when there (a) As soon as practicable, but in no
is more than one source of intercity or event later than July 26, 1995, each per-
commuter rail cars for a lease of seven son providing intercity rail service
days or less, the lessee has obtained all shall provide on each train a number of
available accessible intercity or com- spaces—
muter rail cars from all sources before (1) To park wheelchairs (to accommo-
obtaining inaccessible intercity or date individuals who wish to remain in
commuter rail cars from any source. their wheelchairs) equal to not less
433
than one half of the number of single ble subpart for each transportation
level rail passenger coaches in the system type in part 38 of this title.
train; and (b) Each person providing intercity
(2) To fold and store wheelchairs (to rail service and each commuter rail au-
accommodate individuals who wish to thority shall ensure that, as soon as
transfer to coach seats) equal to not practicable, but in no event later than
less than one half the number of single July 26, 1995, that each train has one
level rail passenger coaches in the car that is readily accessible to and us-
train. able by individuals with disabilities,
(b) As soon as practicable, but in no including individuals who use wheel-
event later than July 26, 2000, each per- chairs.
son providing intercity rail service (c) Each public entity providing light
shall provide on each train a number of or rapid rail service shall ensure that
spaces— each train, consisting of two or more
(1) To park wheelchairs (to accommo- vehicles, includes at least one car that
date individuals who wish to remain in is readily accessible to and usable by
their wheelchairs) equal to not less individuals with disabilities, including
than the total number of single level individuals who use wheelchairs, as
rail passenger coaches in the train; and soon as practicable but in no case later
(2) To fold and store wheelchairs (to than July 25, 1995.
accommodate individuals who wish to
transfer to coach seats) equal to not § 37.95 Ferries and other passenger
vessels operated by public entities.
less than the total number of single [Reserved]
level rail passenger coaches in the
train. §§ 37.97–37.99 [Reserved]
(c) In complying with paragraphs (a)
and (b) of this section, a person pro- Subpart E—Acquisition of Acces-
viding intercity rail service may not sible Vehicles by Private Enti-
provide more than two spaces to park
wheelchairs nor more than two spaces
ties
to fold and store wheelchairs in any § 37.101 Purchase or lease of vehicles
one coach or food service car. by private entities not primarily en-
(d) Unless not practicable, a person gaged in the business of trans-
providing intercity rail transportation porting people.
shall place an accessible car adjacent (a) Application. This section applies
to the end of a single level dining car to all purchases or leases of vehicles by
through which an individual who uses a private entities which are not pri-
wheelchair may enter. marily engaged in the business of
(e) On any train in which either a transporting people, in which a solici-
single level or bi-level dining car is tation for the vehicle is made after Au-
used to provide food service, a person gust 25, 1990.
providing intercity rail service shall (b) Fixed Route System. Vehicle Capac-
provide appropriate aids and services ity Over 16. If the entity operates a
to ensure that equivalent food service fixed route system and purchases or
is available to individuals with disabil- leases a vehicle with a seating capacity
ities, including individuals who use of over 16 passengers (including the
wheelchairs, and to passengers trav- driver) for use on the system, it shall
eling with such individuals. Appro- ensure that the vehicle is readily ac-
priate auxiliary aids and services in- cessible to and usable by individuals
clude providing a hard surface on with disabilities, including individuals
which to eat. who use wheelchairs.
(f) This section does not require the (c) Fixed Route System. Vehicle Capac-
provision of securement devices on ity of 16 or Fewer. If the entity operates
intercity rail cars. a fixed route system and purchases or
leases a vehicle with a seating capacity
§ 37.93 One car per train rule. of 16 or fewer passengers (including the
(a) The definition of accessible for driver) for use on the system, it shall
purposes of meeting the one car per ensure that the vehicle is readily ac-
train rule is spelled out in the applica- cessible to and usable by individuals
434
with disabilities, including individuals (c) Demand responsive systems. If the

who use wheelchairs, unless the sys- entity operates a demand responsive
tem, when viewed in its entirety, meets system, and purchases or leases a new
the standard for equivalent service of vehicle other than an automobile, a
§ 37.105 of this part. van with a seating capacity of less
(d) Demand Responsive System, Vehicle than eight persons (including the driv-
Capacity Over 16. If the entity operates er), or an over-the-road bus, it shall en-
a demand responsive system, and pur- sure that the vehicle is readily acces-
chases or leases a vehicle with a seat- sible to and usable by individuals with
ing capacity of over 16 passengers (in- disabilities, including individuals who
cluding the driver) for use on the sys- use wheelchairs, unless the system,
tem, it shall ensure that the vehicle is when viewed in its entirety, meets the
readily accessible to and usable by in- standard for equivalent service of
dividuals with disabilities, including § 37.105 of this part.
individuals who use wheelchairs, unless (d) Vans with a capacity of fewer than
the system, when viewed in its en- 8 persons. If the entity operates either
tirety, meets the standard for equiva- a fixed route or demand responsive sys-
lent service of § 37.105 of this part. tem, and purchases or leases a new van
(e) Demand Responsive System, Vehicle with a seating capacity of fewer than
Capacity of 16 or Fewer. Entities pro- eight persons including the driver (the
viding demand responsive transpor- solicitation for the vehicle being made
tation covered under this section are after February 25, 1992), the entity
not specifically required to ensure that shall ensure that the vehicle is readily
new vehicles with seating capacity of accessible to and usable by individuals
16 or fewer are accessible to individuals with disabilities, including individuals
with wheelchairs. These entities are re- who use wheelchairs, unless the sys-
tem, when viewed in its entirety, meets
quired to ensure that their systems,
the standard for equivalent service of
when viewed in their entirety, meet
§ 37.105 of this part.
the equivalent service requirements of
§§ 37.171 and 37.105, regardless of wheth- § 37.105 Equivalent service standard.
er or not the entities purchase a new
vehicle. For purposes of §§ 37.101 and 37.103 of
this part, a fixed route system or de-
[56 FR 45621, Sept. 6, 1991, as amended at 61 mand responsive system, when viewed
FR 25416, May 21, 1996] in its entirety, shall be deemed to pro-
vide equivalent service if the service
§ 37.103 Purchase or lease of new non- available to individuals with disabil-
rail vehicles by private entities pri- ities, including individuals who use
marily engaged in the business of
transporting people. wheelchairs, is provided in the most in-
tegrated setting appropriate to the
(a) Application. This section applies needs of the individual and is equiva-
to all acquisitions of new vehicles by lent to the service provided other indi-
private entities which are primarily viduals with respect to the following
engaged in the business of transporting service characteristics:
people and whose operations affect (a) (1) Schedules/headways (if the sys-
commerce, in which a solicitation for tem is fixed route);
the vehicle is made (except as provided (2) Response time (if the system is
in paragraph (d) of this section) after demand responsive);
August 25, 1990. (b) Fares;
(b) Fixed route systems. If the entity (c) Geographic area of service;
operates a fixed route system, and pur- (d) Hours and days of service;
chases or leases a new vehicle other (e) Availability of information;
than an automobile, a van with a seat- (f) Reservations capability (if the
ing capacity of less than eight persons system is demand responsive);
(including the driver), or an over-the- (g) Any constraints on capacity or
road bus, it shall ensure that the vehi- service availability;
cle is readily accessible to and usable (h) Restrictions priorities based on
by individuals with disabilities, includ- trip purpose (if the system is demand
ing individuals who use wheelchairs. responsive).
435
§ 37.107 Acquisition of passenger rail (1) Which is not less than 30 years old
cars by private entities primarily at the time of its use for transporting
engaged in the business of trans- individuals;
porting people. (2) The manufacturer of which is no
(a) A private entity which is pri- longer in the business of manufac-
marily engaged in the business of turing rail passenger cars; and
transporting people and whose oper- (3) Which—
ations affect commerce, which makes a (i) Has a consequential association
solicitation after February 25, 1992, to with events or persons significant to
purchase or lease a new rail passenger the past; or
car to be used in providing specified (ii) Embodies, or is being restored to
public transportation, shall ensure embody, the distinctive characteristics
that the car is readily accessible to, of a type of rail passenger car used in
and usable by, individuals with disabil- the past, or to represent a time period
ities, including individuals who use which has passed.
wheelchairs. The accessibility stand-
ards in part 38 of this title which apply § 37.109 Ferries and other passenger
vessels operated by private entities.
depend upon the type of service in [Reserved]
which the car will be used.
(b) Except as provided in paragraph §§ 37.111–37.119 [Reserved]
(c) of this section, a private entity
which is primarily engaged in trans- Subpart F—Paratransit as a Com-
porting people and whose operations af- plement to Fixed Route Serv-
fect commerce, which remanufactures
ice
a rail passenger car to be used in pro-
viding specified public transportation § 37.121 Requirement for comparable
to extend its useful life for ten years or complementary paratransit service.
more, or purchases or leases such a re-
(a) Except as provided in paragraph
manufactured rail car, shall ensure
(c) of this section, each public entity
that the rail car, to the maximum ex- operating a fixed route system shall
tent feasible, is made readily accessible provide paratransit or other special
to and usable by individuals with dis- service to individuals with disabilities
abilities, including individuals who use that is comparable to the level of serv-
wheelchairs. For purposes of this para- ice provided to individuals without dis-
graph, it shall be considered feasible to abilities who use the fixed route sys-
remanufacture a rail passenger car to tem.
be readily accessible to and usable by (b) To be deemed comparable to fixed
individuals with disabilities, including route service, a complementary para-
individuals who use wheelchairs, unless transit system shall meet the require-
an engineering analysis demonstrates ments of §§ 37.123–37.133 of this subpart.
that doing so would have a significant The requirement to comply with
adverse effect on the structural integ- § 37.131 may be modified in accordance
rity of the car. with the provisions of this subpart re-
(c) Compliance with paragraph (b) of lating to undue financial burden.
this section is not required to the ex- (c) Requirements for complementary
tent that it would significantly alter paratransit do not apply to commuter
the historic or antiquated character of bus, commuter rail, or intercity rail
a historic or antiquated rail passenger systems.
car, or a rail station served exclusively
by such cars, or would result in the § 37.123 ADA paratransit eligibility:
violation of any rule, regulation, Standards.
standard or order issued by the Sec- (a) Public entities required by § 37.121
retary under the Federal Railroad of this subpart to provide complemen-
Safety Act of 1970. For purposes of this tary paratransit service shall provide
section, a historic or antiquated rail the service to the ADA paratransit eli-
passenger car means a rail passenger gible individuals described in para-
car— graph (e) of this section.
436
(b) If an individual meets the eligi- lift does not meet the standards of part
bility criteria of this section with re- 38 of this title), even if that vehicle is
spect to some trips but not others, the accessible to other individuals with
individual shall be ADA paratransit el- disabilities and their mobility wheel-
igible only for those trips for which he chairs.
or she meets the criteria. (iii) With respect to rail systems, an
(c) Individuals may be ADA para- individual is eligible under this para-
transit eligible on the basis of a perma- graph if the individual could use an ac-
nent or temporary disability. cessible rail system, but—
(d) Public entities may provide com- (A) There is not yet one accessible
plementary paratransit service to per- car per train on the system; or
sons other than ADA paratransit eligi- (B) Key stations have not yet been
ble individuals. However, only the cost made accessible.
of service to ADA paratransit eligible (3) Any individual with a disability
individuals may be considered in a pub- who has a specific impairment-related
lic entity’s request for an undue finan- condition which prevents such indi-
cial burden waiver under §§ 37.151–37.155 vidual from traveling to a boarding lo-
of this part. cation or from a disembarking location
(e) The following individuals are ADA on such system.
paratransit eligible: (i) Only a specific impairment-re-
(1) Any individual with a disability lated condition which prevents the in-
who is unable, as the result of a phys- dividual from traveling to a boarding
ical or mental impairment (including a location or from a disembarking loca-
vision impairment), and without the tion is a basis for eligibility under this
assistance of another individual (ex- paragraph. A condition which makes
cept the operator of a wheelchair lift or traveling to boarding location or from
other boarding assistance device), to a disembarking location more difficult
board, ride, or disembark from any ve- for a person with a specific impair-
hicle on the system which is readily ac- ment-related condition than for an in-
cessible to and usable individuals with dividual who does not have the condi-
disabilities. tion, but does not prevent the travel, is
(2) Any individual with a disability not a basis for eligibility under this
who needs the assistance of a wheel- paragraph.
chair lift or other boarding assistance (ii) Architectural barriers not under
device and is able, with such assist- the control of the public entity pro-
ance, to board, ride and disembark viding fixed route service and environ-
from any vehicle which is readily ac- mental barriers (e.g., distance, terrain,
cessible to and usable by individuals weather) do not, standing alone, form a
with disabilities if the individual wants basis for eligibility under this para-
to travel on a route on the system dur- graph. The interaction of such barriers
ing the hours of operation of the sys- with an individual’s specific impair-
tem at a time, or within a reasonable ment-related condition may form a
period of such time, when such a vehi- basis for eligibility under this para-
cle is not being used to provide des- graph, if the effect is to prevent the in-
ignated public transportation on the dividual from traveling to a boarding
route. location or from a disembarking loca-
(i) An individual is eligible under this tion.
paragraph with respect to travel on an (f) Individuals accompanying an ADA
otherwise accessible route on which paratransit eligible individual shall be
the boarding or disembarking location provided service as follows:
which the individual would use is one (1) One other individual accom-
at which boarding or disembarking panying the ADA paratransit eligible
from the vehicle is precluded as pro- individual shall be provided service—
vided in § 37.167(g) of this part. (i) If the ADA paratransit eligible in-
(ii) An individual using a common dividual is traveling with a personal
wheelchair is eligible under this para- care attendant, the entity shall provide
graph if the individual’s wheelchair service to one other individual in addi-
cannot be accommodated on an exist- tion to the attendant who is accom-
ing vehicle (e.g., because the vehicle’s panying the eligible individual;
437
(ii) A family member or friend is re- the entity’s paratransit coordinator,

garded as a person accompanying the an expiration date for eligibility, and
eligible individual, and not as a per- any conditions or limitations on the
sonal care attendant, unless the family individual’s eligibility including the
member or friend registered is acting use of a personal care attendant.
in the capacity of a personal care at- (f) The entity may require recertifi-
tendant; cation of the eligibility of ADA para-
(2) Additional individuals accom- transit eligible individuals at reason-
panying the ADA paratransit eligible able intervals.
individual shall be provided service, (g) The entity shall establish an ad-
provided that space is available for ministrative appeal process through
them on the paratransit vehicle car- which individuals who are denied eligi-
rying the ADA paratransit eligible in- bility can obtain review of the denial.
dividual and that transportation of the (1) The entity may require that an
additional individuals will not result in appeal be filed within 60 days of the de-
a denial of service to ADA paratransit nial of an individual’s application.
eligible individuals; (2) The process shall include an op-
(3) In order to be considered as ‘‘ac- portunity to be heard and to present
companying’’ the eligible individual for information and arguments, separation
purposes of this paragraph (f), the of functions (i.e., a decision by a person
other individual(s) shall have the same not involved with the initial decision
origin and destination as the eligible to deny eligibility), and written notifi-
individual. cation of the decision, and the reasons
for it.
§ 37.125 ADA paratransit eligibility: (3) The entity is not required to pro-
Process. vide paratransit service to the indi-
Each public entity required to pro- vidual pending the determination on
vide complementary paratransit serv- appeal. However, if the entity has not
ice by § 37.121 of this part shall estab- made a decision within 30 days of the
lish a process for determining ADA completion of the appeal process, the
paratransit eligibility. entity shall provide paratransit service
(a) The process shall strictly limit from that time until and unless a deci-
ADA paratransit eligibility to individ- sion to deny the appeal is issued.
uals specified in § 37.123 of this part. (h) The entity may establish an ad-
(b) All information about the process, ministrative process to suspend, for a
materials necessary to apply for eligi- reasonable period of time, the provi-
bility, and notices and determinations sion of complementary paratransit
concerning eligibility shall be made service to ADA eligible individuals who
available in accessible formats, upon establish a pattern or practice of miss-
request. ing scheduled trips.
(c) If, by a date 21 days following the (1) Trips missed by the individual for
submission of a complete application, reasons beyond his or her control (in-
the entity has not made a determina- cluding, but not limited to, trips which
tion of eligibility, the applicant shall are missed due to operator error) shall
be treated as eligible and provided not be a basis for determining that
service until and unless the entity de- such a pattern or practice exists.
nies the application. (2) Before suspending service, the en-
(d) The entity’s determination con- tity shall take the following steps:
cerning eligibility shall be in writing. (i) Notify the individual in writing
If the determination is that the indi- that the entity proposes to suspend
vidual is ineligible, the determination service, citing with specificity the
shall state the reasons for the finding. basis of the proposed suspension and
(e) The public entity shall provide setting forth the proposed sanction.
documentation to each eligible indi- (ii) Provide the individual an oppor-
vidual stating that he or she is ‘‘ADA tunity to be heard and to present infor-
Paratransit Eligible.’’ The documenta- mation and arguments;
tion shall include the name of the eli- (iii) Provide the individual with writ-
gible individual, the name of the tran- ten notification of the decision and the
sit provider, the telephone number of reasons for it.
438
(3) The appeals process of paragraph entity before receiving the service re-
(g) of this section is available to an in- quired by this section.
dividual on whom sanctions have been [56 FR 45621, Sept. 6, 1991, as amended at 61
imposed under this paragraph. The FR 25416, May 21, 1996]
sanction is stayed pending the outcome
of the appeal. § 37.129 Types of service.
(i) In applications for ADA para- (a) Except as provided in this section,
transit eligibility, the entity may re- complementary paratransit service for
quire the applicant to indicate whether ADA paratransit eligible persons shall
or not he or she travels with a personal be origin-to-destination service.
care attendant. (b) Complementary paratransit serv-
ice for ADA paratransit eligible per-
§ 37.127 Complementary paratransit sons described in § 37.123(e)(2) of this
service for visitors. part may also be provided by on-call
bus service or paratransit feeder serv-
(a) Each public entity required to
ice to an accessible fixed route, where
provide complementary paratransit
such service enables the individual to
service under § 37.121 of this part shall use the fixed route bus system for his
make the service available to visitors or her trip.
as provided in this section. (c) Complementary paratransit serv-
(b) For purposes of this section, a vis- ice for ADA eligible persons described
itor is an individual with disabilities in § 37.123(e)(3) of this part also may be
who does not reside in the jurisdic- provided by paratransit feeder service
tion(s) served by the public entity or to and/or from an accessible fixed
other entities with which the public route.
entity provides coordinated com-
plementary paratransit service within § 37.131 Service criteria for com-
plementary paratransit.
a region.
(c) Each public entity shall treat as The following service criteria apply
eligible for its complementary para- to complementary paratransit required
transit service all visitors who present by § 37.121 of this part.
(a) Service Area—(1) Bus. (i) The enti-
documentation that they are ADA
ty shall provide complementary para-
paratransit eligible, under the criteria
transit service to origins and destina-
of § 37.125 of this part, in the jurisdic-
tions within corridors with a width of
tion in which they reside. three-fourths of a mile on each side of
(d) With respect to visitors with dis- each fixed route. The corridor shall in-
abilities who do not present such docu- clude an area with a three-fourths of a
mentation, the public entity may re- mile radius at the ends of each fixed
quire the documentation of the individ- route.
ual’s place of residence and, if the indi- (ii) Within the core service area, the
vidual’s disability is not apparent, of entity also shall provide service to
his or her disability. The entity shall small areas not inside any of the cor-
provide paratransit service to individ- ridors but which are surrounded by cor-
uals with disabilities who qualify as ridors.
visitors under paragraph (b) of this sec- (iii) Outside the core service area,
tion. The entity shall accept a certifi- the entity may designate corridors
cation by such individuals that they with widths from three-fourths of a
are unable to use fixed route transit. mile up to one and one half miles on
(e) A public entity shall make the each side of a fixed route, based on
service to a visitor required by this local circumstances.
(iv) For purposes of this paragraph,
section available for any combination
the core service area is that area in
of 21 days during any 365-day period be-
which corridors with a width of three-
ginning with the visitor’s first use of
fourths of a mile on each side of each
the service during such 365-day period. fixed route merge together such that,
In no case shall the public entity re- with few and small exceptions, all ori-
quire a visitor to apply for or receive gins and destinations within the area
eligibility certification from the public would be served.
439
(2) Rail. (i) For rail systems, the serv- would be charged to an individual pay-
ice area shall consist of a circle with a ing full fare (i.e., without regard to dis-
radius of 3⁄4 of a mile around each sta- counts) for a trip of similar length, at
tion. a similar time of day, on the entity’s
(ii) At end stations and other sta- fixed route system.
tions in outlying areas, the entity may (1) In calculating the full fare that
designate circles with radii of up to 11⁄2 would be paid by an individual using
miles as part of its service area, based the fixed route system, the entity may
on local circumstances. include transfer and premium charges
(3) Jurisdictional boundaries. Notwith- applicable to a trip of similar length,
standing any other provision of this at a similar time of day, on the fixed
paragraph, an entity is not required to route system.
provide paratransit service in an area (2) The fares for individuals accom-
outside the boundaries of the jurisdic- panying ADA paratransit eligible indi-
tion(s) in which it operates, if the enti- viduals, who are provided service under
ty does not have legal authority to op- § 37.123 (f) of this part, shall be the
erate in that area. The entity shall same as for the ADA paratransit eligi-
take all practicable steps to provide ble individuals they are accompanying.
paratransit service to any part of its (3) A personal care attendant shall
service area. not be charged for complementary
(b) Response time. The entity shall paratransit service.
schedule and provide paratransit serv- (4) The entity may charge a fare
ice to any ADA paratransit eligible higher than otherwise permitted by
person at any requested time on a par- this paragraph to a social service agen-
ticular day in response to a request for cy or other organization for agency
service made the previous day. Res- trips (i.e., trips guaranteed to the orga-
ervations may be taken by reservation nization).
agents or by mechanical means. (d) Trip purpose restrictions. The enti-
(1) The entity shall make reservation ty shall not impose restrictions or pri-
service available during at least all orities based on trip purpose.
normal business hours of the entity’s
(e) Hours and days of service. The com-
administrative offices, as well as dur-
plementary paratransit service shall be
ing times, comparable to normal busi-
available throughout the same hours
ness hours, on a day when the entity’s
and days as the entity’s fixed route
offices are not open before a service
service.
day.
(f) Capacity constraints. The entity
(2) The entity may negotiate pickup
shall not limit the availability of com-
times with the individual, but the enti-
plementary paratransit service to ADA
ty shall not require an ADA para-
paratransit eligible individuals by any
transit eligible individual to schedule a
of the following:
trip to begin more than one hour before
or after the individual’s desired depar- (1) Restrictions on the number of
ture time. trips an individual will be provided;
(3) The entity may use real-time (2) Waiting lists for access to the
scheduling in providing complemen- service; or
tary paratransit service. (3) Any operational pattern or prac-
(4) The entity may permit advance tice that significantly limits the avail-
reservations to be made up to 14 days ability of service to ADA paratransit
in advance of an ADA paratransit eligi- eligible persons.
ble individual’s desired trips. When an (i) Such patterns or practices in-
entity proposes to change its reserva- clude, but are not limited to, the fol-
tions system, it shall comply with the lowing:
public participation requirements (A) Substantial numbers of signifi-
equivalent to those of § 37.137 (b) and cantly untimely pickups for initial or
(c). return trips;
(c) Fares. The fare for a trip charged (B) Substantial numbers of trip deni-
to an ADA paratransit eligible user of als or missed trips;
the complementary paratransit service (C) Substantial numbers of trips with
shall not exceed twice the fare that excessive trip lengths.
440
(ii) Operational problems attrib- plan on January 26 of each succeeding

utable to causes beyond the control of year.
the entity (including, but not limited (1) If an entity has met and is con-
to, weather or traffic conditions affect- tinuing to meet all requirements for
ing all vehicular traffic that were not complementary paratransit in §§ 37.121–
anticipated at the time a trip was 37.133 of this part, the entity may sub-
scheduled) shall not be a basis for de- mit to FTA an annual certification of
termining that such a pattern or prac- continued compliance in lieu of a plan
tice exists. update. Entities that have submitted a
(g) Additional service. Public entities joint plan under § 37.141 may submit a
may provide complementary para- joint certification under this para-
transit service to ADA paratransit eli- graph. The requirements of §§ 37.137 (a)
gible individuals exceeding that pro- and (b), 37.138 and 37.139 do not apply
vided for in this section. However, only when a certification is submitted under
the cost of service provided for in this this paragraph.
section may be considered in a public (2) In the event of any change in cir-
entity’s request for an undue financial cumstances that results in an entity
burden waiver under §§ 37.151–37.155 of which has submitted a certification of
this part. continued compliance falling short of
[56 FR 45621, Sept. 6, 1991, as amended at 61 compliance with §§ 37.121–37.133, the en-
FR 25416, May 21, 1996; 71 FR 63266, Oct. 30, tity shall immediately notify FTA in
2006] writing of the problem. In this case,
the entity shall also file a plan update
§ 37.133 Subscription service. meeting the requirements of §§ 37.137–
(a) This part does not prohibit the 37.139 of this part on the next following
use of subscription service by public January 26 and in each succeeding year
entities as part of a complementary until the entity returns to full compli-
paratransit system, subject to the limi- ance.
tations in this section. (3) An entity that has demonstrated
(b) Subscription service may not ab- undue financial burden to the FTA
sorb more than fifty percent of the shall file a plan update meeting the re-
number of trips available at a given quirements of §§ 37.137–37.139 of this
time of day, unless there is non-subpart on each January 26 until full com-
scription capacity. pliance with §§ 37.121–37.133 is attained.
(c) Notwithstanding any other provi- (4) If FTA reasonably believes that
sion of this part, the entity may estab- an entity may not be fully complying
lish waiting lists or other capacity con- with all service criteria, FTA may re-
straints and trip purpose restrictions quire the entity to provide an annual
or priorities for participation in the update to its plan.
subscription service only. (d) Phase-in of implementation. Each
plan shall provide full compliance by
§ 37.135 Submission of paratransit no later than January 26, 1997, unless
plan. the entity has received a waiver based
(a) General. Each public entity oper- on undue financial burden. If the date
ating fixed route transportation serv- for full compliance specified in the
ice, which is required by § 37.121 to pro- plan is after January 26, 1993, the plan
vide complementary paratransit serv- shall include milestones, providing for
ice, shall develop a paratransit plan. measured, proportional progress to-
(b) Initial submission. Except as pro- ward full compliance.
vided in § 37.141 of this part, each entity (e) Plan implementation. Each entity
shall submit its initial plan for compli- shall begin implementation of its plan
ance with the complementary para- on January 26, 1992.
transit service provision by January 26, (f) Submission locations. An entity
1992, to the appropriate location identi- shall submit its plan to one of the fol-
fied in paragraph (f) of this section. lowing offices, as appropriate:
(c) Annual Updates. Except as pro- (1) The individual state admin-
vided in this paragraph, each entity istering agency, if it is—
shall submit an annual update to its (i) A section 18 recipient;
441
(ii) A small urbanized area recipient (3) Opportunity for public comment.
of section 9 funds administered by the The submitting entity shall make its
State; plan available for review before the
(iii) A participant in a coordinated plan is finalized. In making the plan
plan, in which all of the participating available for public review, the entity
entities are eligible to submit their shall ensure that the plan is available
plans to the State; or upon request in accessible formats;
(2) The FTA Regional Office (as listed (4) Public hearing. The entity shall
in appendix B to this part) for all other sponsor at a minimum one public hear-
entities required to submit a para- ing and shall provide adequate notice
transit plan. This includes an FTA re- of the hearing, including advertisement
cipient under section 9 of the FT Act; in appropriate media, such as news-
entities submitting a joint plan (unless papers of general and special interest
they meet the requirements of para- circulation and radio announcements;
graph (f)(1)(iii) of this section), and a and
public entity not an FT Act recipient. (5) Special requirements. If the entity
intends to phase-in its paratransit
[56 FR 45621, Sept. 6, 1991, as amended at 61 service over a multi-year period, or re-
FR 25416, May 21, 1996; 61 FR 26468, May 28, quest a waiver based on undue finan-
1996]
cial burden, the public hearing shall af-
§ 37.137 Paratransit plan development. ford the opportunity for interested citi-
zens to express their views concerning
(a) Survey of existing services. Each the phase-in, the request, and which
submitting entity shall survey the area service criteria may be delayed in im-
to be covered by the plan to identify plementation.
any person or entity (public or private) (c) Ongoing requirement. The entity
which provides a paratransit or other shall create an ongoing mechanism for
special transportation service for ADA the participation of individuals with
paratransit eligible individuals in the disabilities in the continued develop-
service area to which the plan applies. ment and assessment of services to per-
(b) Public participation. Each submit- sons with disabilities. This includes,
ting entity shall ensure public partici- but is not limited to, the development
pation in the development of its para- of the initial plan, any request for an
transit plan, including at least the fol- undue financial burden waiver, and
lowing: each annual submission.
(1) Outreach. Each submitting entity
shall solicit participation in the devel- § 37.139 Plan contents.
opment of its plan by the widest range Each plan shall contain the following
of persons anticipated to use its para- information:
transit service. Each entity shall de- (a) Identification of the entity or en-
velop contacts, mailing lists and other tities submitting the plan, specifying
appropriate means for notification of for each—
opportunities to participate in the de- (1) Name and address; and
velopment of the paratransit plan; (2) Contact person for the plan, with
(2) Consultation with individuals with telephone number and facsimile tele-
disabilities. Each entity shall contact phone number (FAX), if applicable.
individuals with disabilities and groups (b) A description of the fixed route
representing them in the community. system as of January 26, 1992 (or subse-
Consultation shall begin at an early quent year for annual updates), includ-
stage in the plan development and ing—
should involve persons with disabilities (1) A description of the service area,
in all phases of plan development. All route structure, days and hours of serv-
documents and other information con- ice, fare structure, and population
cerning the planning procedure and the served. This includes maps and tables,
provision of service shall be available, if appropriate;
upon request, to members of the public, (2) The total number of vehicles (bus,
except where disclosure would be an van, or rail) operated in fixed route
unwarranted invasion of personal pri- service (including contracted service),
vacy; and percentage of accessible vehicles
442
and percentage of routes accessible to (5) A timetable for implementing

and usable by persons with disabilities, comparable paratransit service, with a
including persons who use wheelchairs; specific date indicating when the
(3) Any other information about the planned service will be completely
fixed route service that is relevant to operational. In no case may full imple-
establishing the basis for com- mentation be completed later than
parability of fixed route and para- January 26, 1997. The plan shall include
transit service. milestones for implementing phases of
(c) A description of existing para- the plan, with progress that can be ob-
transit services, including: jectively measured yearly;
(1) An inventory of service provided (6) A budget for comparable para-
by the public entity submitting the transit service, including capital and
plan; operating expenditures over five years.
(2) An inventory of service provided (e) A description of the process used
by other agencies or organizations, to certify individuals with disabilities
which may in whole or in part be used as ADA paratransit eligible. At a min-
to meet the requirement for com- imum, this must include—
plementary paratransit service; and (1) A description of the application
(3) A description of the available and certification process, including—
paratransit services in paragraphs (i) The availability of information
(c)(2) and (c)(3) of this section as they about the process and application ma-
relate to the service criteria described terials inaccessible formats;
in § 37.131 of this part of service area, (ii) The process for determining eligi-
response time, fares, restrictions on bility according to the provisions of
trip purpose, hours and days of service, §§ 37.123–37.125 of this part and notifying
and capacity constraints; and to the re- individuals of the determination made;
quirements of ADA paratransit eligi- (iii) The entity’s system and time-
bility. table for processing applications and
(d) A description of the plan to pro- allowing presumptive eligibility; and
vide comparable paratransit, including: (iv) The documentation given to eli-
(1) An estimate of demand for com- gible individuals.
parable paratransit service by ADA eli- (2) A description of the administra-
gible individuals and a brief descrip- tive appeals process for individuals de-
tion of the demand estimation method- nied eligibility.
ology used; (3) A policy for visitors, consistent
(2) An analysis of differences between with § 37.127 of this part.
the paratransit service currently pro- (f) Description of the public partici-
vided and what is required under this pation process including—
part by the entity(ies) submitting the (1) Notice given of opportunity for
plan and other entities, as described in public comment, the date(s) of com-
paragraph (c) of this section; pleted public hearing(s), availability of
(3) A brief description of planned the plan in accessible formats, out-
modifications to existing paratransit reach efforts, and consultation with
and fixed route service and the new persons with disabilities.
paratransit service planned to comply (2) A summary of significant issues
with the ADA paratransit service cri- raised during the public comment pe-
teria; riod, along with a response to signifi-
(4) A description of the planned com- cant comments and discussion of how
parable paratransit service as it relates the issues were resolved.
to each of the service criteria described (g) Efforts to coordinate service with
in § 37.131 of this part—service area, ab- other entities subject to the com-
sence of restrictions or priorities based plementary paratransit requirements
on trip purpose, response time, fares, of this part which have overlapping or
hours and days of service, and lack of contiguous service areas or jurisdic-
capacity constraints. If the paratransit tions.
plan is to be phased in, this paragraph (h) The following endorsements or
shall be coordinated with the informa- certifications:
tion being provided in paragraphs (d)(5) (1) A resolution adopted by the board
and (d)(6) of this paragraph; of the entity authorizing the plan, as
443
submitted. If more than one entity is (2) If the paratransit service is being
submitting the plan there must be an phased in over more than one year, the
authorizing resolution from each entity must demonstrate that the
board. If the entity does not function milestones identified in the current
with a board, a statement shall be sub- paratransit plans have been achieved.
mitted by the entity’s chief executive; If the milestones have not been
(2) In urbanized areas, certification achieved, the plan must explain any
by the Metropolitan Planning Organi- slippage and what actions are being
zation (MPO) that it has reviewed the taken to compensate for the slippage.
plan and that the plan is in conform- (3) The annual plan must describe
ance with the transportation plan de- specifically the means used to comply
veloped under the Federal Transit/Fed- with the public participation require-
eral Highway Administration joint ments, as described in § 37.137 of this
planning regulation (49 CFR part 613 part.
and 23 CFR part 450). In a service area
which is covered by more than one § 37.141 Requirements for a joint para-
MPO, each applicable MPO shall cer- transit plan.
tify conformity of the entity’s plan. (a) Two or more entities with over-
The provisions of this paragraph do not lapping or contiguous service areas or
apply to non-FTA recipients; jurisdictions may develop and submit a
(3) A certification that the survey of joint plan providing for coordinated
existing paratransit service was con- paratransit service. Joint plans shall
ducted as required in § 37.137(a) of this identify the participating entities and
part; indicate their commitment to partici-
(4) To the extent service provided by pate in the plan.
other entities is included in the enti- (b) To the maximum extent feasible,
ty’s plan for comparable paratransit all elements of the coordinated plan
service, the entity must certify that: shall be submitted on January 26, 1992.
(i) ADA paratransit eligible individ- If a coordinated plan is not completed
uals have access to the service; by January 26, 1992, those entities in-
(ii) The service is provided in the tending to coordinate paratransit serv-
manner represented; and ice must submit a general statement
(iii) Efforts will be made to coordi- declaring their intention to provide co-
nate the provision of paratransit serv- ordinated service and each element of
ice by other providers. the plan specified in § 37.139 to the ex-
(i) A request for a waiver based on tent practicable. In addition, the plan
undue financial burden, if applicable. must include the following certifi-
The waiver request should include in- cations from each entity involved in
formation sufficient for FTA to con- the coordination effort:
sider the factors in § 37.155 of this part. (1) A certification that the entity is
If a request for an undue financial bur- committed to providing ADA para-
den waiver is made, the plan must in- transit service as part of a coordinated
clude a description of additional para- plan.
transit services that would be provided (2) A certification from each public
to achieve full compliance with the re- entity participating in the plan that it
quirement for comparable paratransit will maintain current levels of para-
in the event the waiver is not granted, transit service until the coordinated
and the timetable for the implementa- plan goes into effect.
tion of these additional services. (c) Entities submitting the above cer-
(j) Annual plan updates. (1) The an- tifications and plan elements in lieu of
nual plan updates submitted January a completed plan on January 26, 1992,
26, 1993, and annually thereafter, shall must submit a complete plan by July
include information necessary to up- 26, 1992.
date the information requirements of (d) Filing of an individual plan does
this section. Information submitted an- not preclude an entity from cooper-
nually must include all significant ating with other entities in the devel-
changes and revisions to the timetable opment or implementation of a joint
for implementation; plan. An entity wishing to join with
444
other entities after its initial submis- (d) Whether the plan, when viewed in
sion may do so by meeting the filing its entirety, provides for paratransit
requirements of this section. service comparable to the entity’s
fixed route service;
§ 37.143 Paratransit plan implementa- (e) Whether the entity complied with
tion. the public participation efforts re-
(a) Each entity shall begin imple- quired by this part; and
mentation of its complementary para- (f) The extent to which efforts were
transit plan, pending notice from FTA. made to coordinate with other public
The implementation of the plan shall entities with overlapping or contiguous
be consistent with the terms of the service areas or jurisdictions.
plan, including any specified phase-in
period. § 37.149 Disapproved plans.
(b) If the plan contains a request for
(a) If a plan is disapproved in whole
a wavier based on undue financial bur-
or in part, FTA will specify which pro-
den, the entity shall begin implemen-
visions are disapproved. Each entity
tation of its plan, pending a determina-
shall amend its plan consistent with
tion on its waiver request.
this information and resubmit the plan
§ 37.145 State comment on plans. to the appropriate FTA Regional Office
within 90 days of receipt of the dis-
Each state required to receive plans approval letter.
under § 37.135 of this part shall:
(b) Each entity revising its plan shall
(a) Ensure that all applicable section
continue to comply with the public
18 and section 9 recipients have sub-
participation requirements applicable
mitted plans.
to the initial development of the plan
(b) Certify to FTA that all plans have
(set out in § 37.137 of this part).
been received.
(c) Forward the required certification § 37.151 Waiver for undue financial
with comments on each plan to FTA. burden.
The plans, with comments, shall be
submitted to FTA no later than April If compliance with the service cri-
1, 1992, for the first year and April 1 an- teria of § 37.131 of this part creates an
nually thereafter. undue financial burden, an entity may
(d) The State shall develop comments request a waiver from all or some of
to on each plan, responding to the fol- the provisions if the entity has com-
lowing points: plied with the public participation re-
(1) Was the plan filed on time? quirements in § 37.137 of this part and if
(2) Does the plan appear reasonable? the following conditions apply:
(3) Are there circumstances that bear (a) At the time of submission of the
on the ability of the grantee to carry initial plan on January 26, 1992—
out the plan as represented? If yes, (1) The entity determines that it can-
please elaborate. not meet all of the service criteria by
(4) Is the plan consistent with state- January 26, 1997; or
wide planning activities? (2) The entity determines that it can-
(5) Are the necessary anticipated fi- not make measured progress toward
nancial and capital resources identified compliance in any year before full
in the plan accurately estimated? compliance is required. For purposes of
this part, measured progress means im-
§ 37.147 Considerations during FTA re- plementing milestones as scheduled,
view. such as incorporating an additional
In reviewing each plan, at a min- paratransit service criterion or im-
imum FTA will consider the following: proving an aspect of a specific service
(a) Whether the plan was filed on criterion.
time; (b) At the time of its annual plan up-
(b) Comments submitted by the date submission, if the entity believes
state, if applicable; that circumstances have changed since
(c) Whether the plan contains respon- its last submission, and it is no longer
sive elements for each component re- able to comply by January 26, 1997, or
quired under § 37.139 of this part; make measured progress in any year
445
before 1997, as described in paragraph ble for the entity to provide basic com-
(a)(2) of this section. plementary paratransit service, the
Administrator shall require the public
§ 37.153 FTA waiver determination. entity to coordinate with other avail-
(a) The Administrator will determine able providers of demand responsive
whether to grant a waiver for undue fi- service in the area served by the public
nancial burden on a case-by-case basis, entity to maximize the service to ADA
after considering the factors identified paratransit eligible individuals to the
in § 37.155 of this part and the informa- maximum extent feasible.
tion accompanying the request. If nec-
essary, the Administrator will return § 37.155 Factors in decision to grant an
the application with a request for addi- undue financial burden waiver.
tional information. (a) In making an undue financial bur-
(b) Any waiver granted will be for a den determination, the FTA Adminis-
limited and specified period of time. trator will consider the following fac-
(c) If the Administrator grants the tors:
applicant a waiver, the Administrator (1) Effects on current fixed route
will do one of the following: service, including reallocation of acces-
(1) Require the public entity to pro- sible fixed route vehicles and potential
vide complementary paratransit to the reduction in service, measured by serv-
extent it can do so without incurring ice miles;
an undue financial burden. The entity (2) Average number of trips made by
shall make changes in its plan that the the entity’s general population, on a
Administrator determines are appro- per capita basis, compared with the av-
priate to maximize the complementary erage number of trips to be made by
paratransit service that is provided to registered ADA paratransit eligible
ADA paratransit eligible individuals. persons, on a per capita basis;
When making changes to its plan, the (3) Reductions in other services, in-
entity shall use the public participa- cluding other special services;
tion process specified for plan develop- (4) Increases in fares;
ment and shall consider first a reduc- (5) Resources available to implement
tion in number of trips provided to complementary paratransit service
each ADA paratransit eligible person over the period covered by the plan;
per month, while attempting to meet (6) Percentage of budget needed to
all other service criteria. implement the plan, both as a percent-
(2) Require the public entity to pro- age of operating budget and a percent-
vide basic complementary paratransit age of entire budget;
services to all ADA paratransit eligible (7) The current level of accessible
individuals, even if doing so would service, both fixed route and para-
cause the public entity to incur an transit;
undue financial burden. Basic com- (8) Cooperation/coordination among
plementary paratransit service in cor- area transportation providers;
ridors defined as provided in § 37.131(a) (9) Evidence of increased efficiencies,
along the public entity’s key routes that have been or could be effectuated,
during core service hours. that would benefit the level and qual-
(i) For purposes of this section, key ity of available resources for com-
routes are defined as routes along plementary paratransit service; and
which there is service at least hourly (10) Unique circumstances in the sub-
throughout the day. mitting entity’s area that affect the
(ii) For purposes of this section, core ability of the entity to provide para-
service hours encompass at least peak transit, that militate against the need
periods, as these periods are defined lo- to provide paratransit, or in some
cally for fixed route service, consistent other respect create a circumstance
with industry practice. considered exceptional by the submit-
(3) If the Administrator determines ting entity.
that the public entity will incur an (b)(1) Costs attributable to com-
undue financial burden as the result of plementary paratransit shall be lim-
providing basic complementary para- ited to costs of providing service spe-
transit service, such that it is infeasi- cifically required by this part to ADA
446
paratransit eligible individuals, by en- (c) This section does not prohibit iso-
tities responsible under this part for lated or temporary interruptions in
providing such service. service or access due to maintenance or
(2) If the entity determines that it is repairs.
impracticable to distinguish between
trips mandated by the ADA and other § 37.163 Keeping vehicle lifts in opera-
trips on a trip-by-trip basis, the entity tive condition: Public entities.
shall attribute to ADA complementary (a) This section applies only to public
paratransit requirements a percentage entities with respect to lifts in non-rail
of its overall paratransit costs. This vehicles.
percentage shall be determined by a
(b) The entity shall establish a sys-
statistically valid methodology that
determines the percentage of trips that tem of regular and frequent mainte-
are required by this part. The entity nance checks of lifts sufficient to de-
shall submit information concerning termine if they are operative.
its methodology and the data on which (c) The entity shall ensure that vehi-
its percentage is based with its request cle operators report to the entity, by
for a waiver. Only costs attributable to the most immediate means available,
ADA-mandated trips may be considered any failure of a lift to operate in serv-
with respect to a request for an undue ice.
financial burden waiver. (d) Except as provided in paragraph
(3) Funds to which the entity would (e) of this section, when a lift is discov-
be legally entitled, but which, as a ered to be inoperative, the entity shall
matter of state or local funding ar- take the vehicle out of service before
rangements, are provided to another the beginning of the vehicle’s next
entity and used by that entity to pro- service day and ensure that the lift is
vide paratransit service which is part repaired before the vehicle returns to
of a coordinated system of paratransit service.
meeting the requirements of this part, (e) If there is no spare vehicle avail-
may be counted in determining the
able to take the place of a vehicle with
burden associated with the waiver re-
an inoperable lift, such that taking the
quest.
vehicle out of service will reduce the
§§ 37.157–37.159 [Reserved] transportation service the entity is
able to provide, the public entity may
Subpart G—Provision of Service keep the vehicle in service with an in-
operable lift for no more than five days
§ 37.161 Maintenance of accessible fea- (if the entity serves an area of 50,000 or
tures: General. less population) or three days (if the
(a) Public and private entities pro- entity serves an area of over 50,000 pop-
viding transportation services shall ulation) from the day on which the lift
maintain in operative condition those is discovered to be inoperative.
features of facilities and vehicles that (f) In any case in which a vehicle is
are required to make the vehicles and operating on a fixed route with an in-
facilities readily accessible to and usa- operative lift, and the headway to the
ble by individuals with disabilities. next accessible vehicle on the route ex-
These features include, but are not lim- ceeds 30 minutes, the entity shall
ited to, lifts and other means of access promptly provide alternative transpor-
to vehicles, securement devices, ele- tation to individuals with disabilities
vators, signage and systems to facili- who are unable to use the vehicle be-
tate communications with persons cause its lift does not work.
with impaired vision or hearing.
(b) Accessibility features shall be re- § 37.165 Lift and securement use.
paired promptly if they are damaged or
out of order. When an accessibility fea- (a) This section applies to public and
ture is out of order, the entity shall private entities.
take reasonable steps to accommodate (b) All common wheelchairs and their
individuals with disabilities who would users shall be transported in the enti-
otherwise use the feature. ty’s vehicles or other conveyances. The
447
entity is not required to permit wheel- destination points, and intervals along
chairs to ride in places other than des- a route sufficient to permit individuals
ignated securement locations in the ve- with visual impairments or other dis-
hicle, where such locations exist. abilities to be oriented to their loca-
(c)(1) For vehicles complying with tion.
part 38 of this title, the entity shall use (2) The entity shall announce any
the securement system to secure stop on request of an individual with a
wheelchairs as provided in that Part. disability.
(2) For other vehicles transporting (c) Where vehicles or other convey-
individuals who use wheelchairs, the ances for more than one route serve
entity shall provide and use a secure- the same stop, the entity shall provide
ment system to ensure that the wheel- a means by which an individual with a
chair remains within the securement visual impairment or other disability
area.
can identify the proper vehicle to enter
(3) The entity may require that an
or be identified to the vehicle operator
individual permit his or her wheelchair
as a person seeking a ride on a par-
to be secured.
(d) The entity may not deny trans- ticular route.
portation to a wheelchair or its user on (d) The entity shall permit service
the ground that the device cannot be animals to accompany individuals with
secured or restrained satisfactorily by disabilities in vehicles and facilities.
the vehicle’s securement system. (e) The entity shall ensure that vehi-
(e) The entity may recommend to a cle operators and other personnel make
user of a wheelchair that the individual use of accessibility-related equipment
transfer to a vehicle seat. The entity or features required by part 38 of this
may not require the individual to title.
transfer. (f) The entity shall make available to
(f) Where necessary or upon request, individuals with disabilities adequate
the entity’s personnel shall assist indi- information concerning transportation
viduals with disabilities with the use of services. This obligation includes mak-
securement systems, ramps and lifts. If ing adequate communications capacity
it is necessary for the personnel to available, through accessible formats
leave their seats to provide this assist- and technology, to enable users to ob-
ance, they shall do so. tain information and schedule service.
(g) The entity shall permit individ- (g) The entity shall not refuse to per-
uals with disabilities who do not use mit a passenger who uses a lift to dis-
wheelchairs, including standees, to use embark from a vehicle at any des-
a vehicle’s lift or ramp to enter the ve- ignated stop, unless the lift cannot be
hicle. Provided, that an entity is not re- deployed, the lift will be damaged if it
quired to permit such individuals to is deployed, or temporary conditions at
use a lift Model 141 manufactured by the stop, not under the control of the
EEC, Inc. If the entity chooses not to entity, preclude the safe use of the stop
allow such individuals to use such a by all passengers.
lift, it shall clearly notify consumers (h) The entity shall not prohibit an
of this fact by signage on the exterior individual with a disability from trav-
of the vehicle (adjacent to and of eling with a respirator or portable oxy-
equivalent size with the accessibility gen supply, consistent with applicable
symbol). Department of Transportation rules on
[56 FR 45621, Sept. 6, 1991, as amended at 58 the transportation of hazardous mate-
FR 63103, Nov. 30, 1993] rials (49 CFR subtitle B, chapter 1, sub-
chapter C).
§ 37.167 Other service requirements. (i) The entity shall ensure that ade-
(a) This section applies to public and quate time is provided to allow individ-
private entities. uals with disabilities to complete
(b) On fixed route systems, the entity boarding or disembarking from the ve-
shall announce stops as follows: hicle.
(1) The entity shall announce at least (j)(1) When an individual with a dis-
at transfer points with other fixed ability enters a vehicle, and because of
routes, other major intersections and a disability, the individual needs to sit
448
in a seat or occupy a wheelchair se- senger compartment provided for pas-

curement location, the entity shall ask sengers’ personal effects, wheelchairs
the following persons to move in order or other mobility aids and assistive de-
to allow the individual with a dis- vices used by individuals with disabil-
ability to occupy the seat or secure- ities, or components of such devices,
ment location: shall be permitted in the passenger
(i) Individuals, except other individ- compartment. When the bus is at rest
uals with a disability or elderly per- at a stop, the driver or other personnel
sons, sitting in a location designated as shall assist individuals with disabil-
priority seating for elderly and handi- ities with the stowage and retrieval of
capped persons (or other seat as nec-
mobility aids, assistive devices, or
essary);
other items that can be accommodated
(ii) Individuals sitting in or a fold-
down or other movable seat in a wheel- in the passenger compartment of the
chair securement location. bus.
(2) This requirement applies to light (d) Wheelchairs and other mobility
rail, rapid rail, and commuter rail sys- aids or assistive devices that cannot be
tems only to the extent practicable. accommodated in the passenger com-
(3) The entity is not required to en- partment (including electric wheel-
force the request that other passengers chairs) shall be accommodated in the
move from priority seating areas or baggage compartment of the bus, un-
wheelchair securement locations. less the size of the baggage compart-
(4) In all signage designating priority ment prevents such accommodation.
seating areas for elderly persons and (e) At any given stop, individuals
persons with disabilities, or desig- with disabilities shall have the oppor-
nating wheelchair securement areas, tunity to have their wheelchairs or
the entity shall include language in- other mobility aids or assistive devices
forming persons sitting in these loca- stowed in the baggage compartment
tions that they should comply with re- before other baggage or cargo is loaded,
quests by transit provider personnel to but baggage or cargo already on the
vacate their seats to make room for an bus does not have to be off-loaded in
individual with a disability. This re-
order to make room for such devices.
quirement applies to all fixed route ve-
(f) The entity may require up to 48
hicles when they are acquired by the
entity or to new or replacement sign- hours’ advance notice only for pro-
age in the entity’s existing fixed route viding boarding assistance. If the indi-
vehicles. vidual does not provide such notice,
the entity shall nonetheless provide
[56 FR 45621, Sept. 6, 1991, as amended at 58 the service if it can do so by making a
FR 63103, Nov. 30, 1993]
reasonable effort, without delaying the
§ 37.169 Interim requirements for over- bus service.
the-road bus service operated by
private entities. § 37.171 Equivalency requirement for
demand responsive service oper-
(a) Private entities operating over- ated by private entities not pri-
the-road buses, in addition to compli- marily engaged in the business of
ance with other applicable provisions transporting people.
of this part, shall provide accessible
service as provided in this section. A private entity not primarily en-
(b) The private entity shall provide gaged in the business of transporting
assistance, as needed, to individuals people which operates a demand re-
with disabilities in boarding and dis- sponsive system shall ensure that its
embarking, including moving to and system, when viewed in its entirety,
from the bus seat for the purpose of provides equivalent service to individ-
boarding and disembarking. The pri- uals with disabilities, including indi-
vate entity shall ensure that personnel viduals who use wheelchairs, as it does
are trained to provide this assistance to individuals without disabilities. The
safely and appropriately. standards of § 37.105 shall be used to de-
(c) To the extent that they can be ac- termine if the entity is providing
commodated in the areas of the pas- equivalent service.
449
§ 37.173 Training requirements. (2) Ensure that equivalent service, as

defined in § 37.105, is provided to indi-
Each public or private entity which
viduals with disabilities, including in-
operates a fixed route or demand re-
dividuals who use wheelchairs. To meet
sponsive system shall ensure that per- this equivalent service standard, the
sonnel are trained to proficiency, as service provided by the operator must
appropriate to their duties, so that permit a wheelchair user to travel in
they operate vehicles and equipment his or her own mobility aid.
safely and properly assist and treat in-
dividuals with disabilities who use the § 37.185 Fleet accessibility require-
service in a respectful and courteous ment for OTRB fixed-route systems
way, with appropriate attention to the of large operators.
difference among individuals with dis- Each large operator subject to the re-
abilities. quirements of § 37.183 shall ensure
that—
Subpart H—Over-the-Road Buses (a) By October 30, 2006 no less than 50
(OTRBs) percent of the buses in its fleet with
which it provides fixed-route service
are readily accessible to and usable by
SOURCE: 63 FR 51690, Sept. 28, 1998, unless
otherwise noted.
individuals with disabilities, including
individuals who use wheelchairs.
§ 37.181 Applicability dates. (b) By October 29, 2012, 100 percent of
the buses in its fleet with which it pro-
This subpart applies to all private en- vides fixed-route service are readily ac-
tities that operate OTRBs. The require- cessible to and usable by individuals
ments of the subpart begin to apply to with disabilities, including individuals
large operators beginning October 30, who use wheelchairs.
2000 and to small operators beginning (c) Request for time extension. An oper-
October 29, 2001. ator may apply to the Secretary for a
time extension of the fleet accessi-
§ 37.183 Purchase or lease of new bility deadlines of this section. If he or
OTRBs by operators of fixed-route
systems. she grants the request, the Secretary
sets a specific date by which the oper-
The following requirements apply to ator must meet the fleet accessibility
private entities that are primarily in requirement. In determining whether
the business of transporting people, to grant such a request, the Secretary
whose operations affect commerce, and considers the following factors:
that operate a fixed-route system, with (1) Whether the operator has pur-
respect to OTRBs delivered to them on chased or leased, since October 30, 2000,
or after the date on which this subpart enough new OTRBs to replace 50 per-
applies to them: cent of the OTRBs with which it pro-
(a) Large operators. If a large entity vides fixed-route service by October 30,
operates a fixed-route system, and pur- 2006 or 100 percent of such OTRBs by
chases or leases a new OTRB for or in October 29, 2012;
contemplation of use in that system, it (2) Whether the operator has pur-
shall ensure that the vehicle is readily chased or leased, between October 28,
accessible to and usable by individuals 1998 and October 30, 2000, a number of
with disabilities, including individuals new inaccessible OTRBs significantly
who use wheelchairs. exceeding the number of buses it would
(b) Small operators. If a small entity normally obtain in such a period;
operates a fixed-route system, and pur- (3) The compliance with all require-
chases or leases a new OTRB for or in ments of this part by the operator over
contemplation of use in that system, it the period between October 28, 1998 and
must do one of the following two the request for time extension.
things:
(1) Ensure that the vehicle is readily § 37.187 Interline service.
accessible to and usable by individuals (a) When the general public can pur-
with disabilities, including individuals chase a ticket or make a reservation
who use wheelchairs; or with one operator for a fixed-route trip
450
of two or more stages in which another Point B, any more than that it would be had
operator provides service, the first op- the passenger directly contacted Operator Y
erator must arrange for an accessible to travel from Point B to Point C.
bus, or equivalent service, as applica- (c) All fixed-route operators involved
ble, to be provided for each stage of the in interline service shall ensure that
trip to a passenger with a disability. they have the capacity to receive com-
The following examples illustrate the munications at all times concerning
provisions of this paragraph (a): interline service for passengers with
Example 1. By going to Operator X’s ticket disabilities. The following examples il-
office or calling X for a reservation, a pas- lustrate the provisions of this para-
senger can buy or reserve a ticket from graph (c):
Point A through to Point C, transferring at
intermediate Point B to a bus operated by Example 1. Operator Y’s office is staffed
Operator Y. Operator X is responsible for only during normal weekday business hours.
communicating immediately with Operator Operator Y must have a means of receiving
Y to ensure that Y knows that a passenger communications from carriers with which it
needing accessible transportation or equiva- interlines (e.g., telephone answering ma-
lent service, as applicable, is traveling from chine, fax, computer) when no one is in the
Point B to Point C. By immediate commu- office.
nication, we mean that the ticket or reserva- Example 2. Operator Y has the responsi-
tion agent for Operator X, by phone, fax, bility to monitor its communications de-
computer, or other instantaneous means, vices at reasonable intervals to ensure that
contacts Operator Y the minute the reserva- it can act promptly on the basis of messages
tion or ticketing transaction with the pas- received. If Operator Y receives a message
senger, as applicable, has been completed. It from Operator X on its answering machine
is the responsibility of each carrier to know on Friday night, notifying Y of the need for
how to contact carriers with which it an accessible bus on Monday morning, it has
interlines (e.g., Operator X must know Oper- the responsibility of making sure that the
ator Y’s phone number). accessible bus is there on Monday morning.
Example 2. Operator X fails to provide the
Operator Y is not excused from its obligation
required information in a timely manner to
because no one checked the answering ma-
Operator Y. Operator X is responsible for
chine over the weekend.
compensating the passenger for the con-
sequent unavailability of an accessible bus
or equivalent service, as applicable, on the § 37.189 Service requirement for OTRB
B-C leg of the interline trip. demand-responsive systems.
(b) Each operator retains the respon- (a) This section applies to private en-
sibility for providing the transpor- tities primarily in the business of
tation required by this subpart to the transporting people, whose operations
passenger for its portion of an interline affect commerce, and that provide de-
trip. The following examples illustrate mand-responsive OTRB service. Except
the provisions of this paragraph (b): as needed to meet the other require-
ments of this section, these entities are
Example 1. In Example 1 to paragraph (a) of not required to purchase or lease acces-
this section, Operator X provides the re-
quired information to Operator Y in a timely
sible buses in connection with pro-
fashion. However, Operator Y fails to provide viding demand-responsive service.
an accessible bus or equivalent service to the (b) Demand-responsive operators
passenger at Point B as the rules require. shall ensure that, beginning one year
Operator Y is responsible for compensating from the date on which the require-
the passenger as provided in § 37. 199. ments of this subpart begin to apply to
Example 2. Operator X provides the re-
the entity, any individual with a dis-
quired information to Operator Y in a timely
fashion. However, the rules require Operator ability who requests service in an ac-
Y to provide an accessible bus on 48 hours’ cessible OTRB receives such service.
advance notice (i.e., as a matter of interim This requirement applies to both large
service under § 37.193(a) or service by a small and small operators.
mixed-service operator under § 37.191), and (c) The operator may require up to 48
the passenger has purchased the ticket or hours’ advance notice to provide this
made the reservation for the interline trip
service.
only 8 hours before Operator Y’s bus leaves
from Point B to go to Point C. In this situa- (d) If the individual with a disability
tion, Operator Y is not responsible for pro- does not provide the advance notice the
viding an accessible bus to the passenger at operator requires under paragraph (a)
451
of this section, the operator shall nev- § 37.191 Special provision for small
ertheless provide the service if it can mixed-service operators.
do so by making a reasonable effort. (a) For purposes of this section, a
(e) To meet this requirement, an op- small mixed-service operator is a small
erator is not required to fundamentally operator that provides both fixed-route
alter its normal reservation policies or and demand-responsive service and
to displace another passenger who has does not use more than 25 percent of its
reserved a seat on the bus. The fol- buses for fixed-route service.
lowing examples illustrate the provi- (b) An operator meeting the criteria
sions of this paragraph (e): of paragraph (a) of this section may
conduct all its trips, including fixed-
Example 1. A tour bus operator requires all
route trips, on an advance-reservation
passengers to reserve space on the bus three
months before the trip date. This require-
basis as provided for demand-respon-
ment applies to passengers with disabilities sive trips in § 37.189. Such an operator
on the same basis as other passengers. Con- is not required to comply with the ac-
sequently, an individual passenger who is a cessible bus acquisition/equivalent
wheelchair user would have to request an ac- service obligations of § 37.183(b).
cessible bus at the time he or she made his
reservation, at least three months before the § 37.193 Interim service requirements.
trip date. If the individual passenger with a (a) Until 100 percent of the fleet of a
disability makes a request for space on the large or small operator uses to provide
trip and an accessible OTRB 48 hours before
fixed-route service is composed of ac-
the trip date, the operator could refuse the
cessible OTRBs, the operator shall
request because all passengers were required
to make reservations three months before meet the following interim service re-
the trip date. quirements:
Example 2. A group makes a reservation to (1) Beginning one year from the date
charter a bus for a trip four weeks in ad- on which the requirements of this sub-
vance. A week before the trip date, the group part begin to apply to the operator, it
discovers that someone who signed up for the shall ensure that any individual with a
trip is a wheelchair user who needs an acces- disability that requests service in an
sible bus, or someone who later buys a seat accessible OTRB receives such service.
in the block of seats the group has reserved (i) The operator may require up to 48
needs an accessible bus. A group representa- hours’ advance notice to provide this
tive or the passenger with a disability in- service.
forms the bus company of this need more
(ii) If the individual with a disability
than 48 hours before the trip date. The bus
company must provide an accessible bus.
does not provide the advance notice the
Example 3. While the operator’s normal operator requires, the operator shall
deadline for reserving space on a charter or nevertheless provide the service if it
tour trip has passed, a number of seats for a can do so by making a reasonable ef-
trip are unfilled. The operator permits mem- fort.
bers of the public to make late reservations (iii) If the trip on which the person
for the unfilled seats. If a passenger with a with a disability wishes to travel is al-
disability calls 48 hours before the trip is ready provided by an accessible bus,
scheduled to leave and requests a seat and the operator has met this requirement.
the provision of an accessible OTRB, the op- (2) Before a date one year from the
erator must meet this request, as long as it date on which this subpart applies to
does not displace another passenger with a the operator, an operator which is un-
reservation.
able to provide the service specified in
Example 4. A tour bus trip is nearly sold
paragraph (a) of this section shall com-
out three weeks in advance of the trip date.
A passenger with a disability calls 48 hours
ply with the requirements of § 37.169.
before the trip is scheduled to leave and re- (3) Interim service under this para-
quests a seat and the provision of an acces- graph (a) is not required to be provided
sible OTRB. The operator need not meet this by a small operator who is providing
request if it will have the effect of displacing equivalent service to its fixed-route
a passenger with an existing reservation. If service as provided in § 37.183(b)(2).
other passengers would not be displaced, the (b) Some small fixed-route operators
operator must meet this request. may never have a fleet 100 percent of
which consists of accessible buses (e.g.,
452
a small fixed-route operator who exclu- part applies to the entity and during
sively or primarily purchases or leases the period in which the useful life of
used buses). Such an operator must the vehicle is extended.
continue to comply with the require- (b) In any situation in which this
ments of this section with respect to subpart requires an entity purchasing
any service that is not provided en- or leasing a new OTRB to purchase or
tirely with accessible buses. lease an accessible OTRB, OTRBs ac-
(c) Before a date one year from the quired through the actions listed in
date on which this subpart applies to paragraph (a) of this section shall, to
an operator providing demand-respon- the maximum extent feasible, be read-
sive service, an operator which is un- ily accessible to and usable by individ-
able to provide the service described in uals with disabilities, including indi-
§ 37.189 shall comply with the require- viduals who use wheelchairs.
ments of § 37.169. (c) For purposes of this section, it
shall be considered feasible to remanu-
§ 37.195 Purchase or lease of OTRBs by
private entities not primarily in the facture an OTRB so as to be readily ac-
business of transporting people. cessible to and usable by individuals
with disabilities, including individuals
This section applies to all purchases
who use wheelchairs, unless an engi-
or leases of new vehicles by private en-
neering analysis demonstrates that in-
tities which are not primarily engaged
cluding accessibility features required
in the business of transporting people,
by this part would have a significant
with respect to buses delivered to them
adverse effect on the structural integ-
on or after the date on which this sub-
rity of the vehicle.
part begins to apply to them.
(a) Fixed-route systems. If the entity § 37.199 [Reserved]
operates a fixed-route system and pur-
chases or leases an OTRB for or in con- § 37.201 Intermediate and rest stops.
templation of use on the system, it
shall meet the requirements of § 37.183 (a) Whenever an OTRB makes an in-
(a) or (b), as applicable. termediate or rest stop, a passenger
(b) Demand-responsive systems. The re- with a disability, including an indi-
quirements of § 37.189 apply to demand- vidual using a wheelchair, shall be per-
responsive systems operated by private mitted to leave and return to the bus
entities not primarily in the business on the same basis as other passengers.
of transporting people. If such an enti- The operator shall ensure that assist-
ty operates a demand-responsive sys- ance is provided to passengers with dis-
tem, and purchases or leases an OTRB abilities as needed to enable the pas-
for or in contemplation of use on the senger to get on and off the bus at the
system, it is not required to purchase stop (e.g., operate the lift and provide
or lease an accessible bus except as assistance with securement; provide
needed to meet the requirements of other boarding assistance if needed, as
§ 37.189. in the case of a wheelchair user who
has transferred to a vehicle seat be-
§ 37.197 Remanufactured OTRBs. cause other wheelchair users occupied
(a) This section applies to any pri- all securement locations).
vate entity operating OTRBs that (b) If an OTRB operator owns, leases,
takes one of the following actions: or controls the facility at which a rest
(1) On or after the date on which this or intermediate stop is made, or if an
subpart applies to the entity, it re- OTRB operator contracts with the per-
manufactures an OTRB so as to extend son who owns, leases, or controls such
its useful life for five years or more or a facility to provide rest stop services,
makes a solicitation for such remanu- the OTRB operator shall ensure the fa-
facturing; or cility complies fully with applicable re-
(2) Purchases or leases an OTRB quirements of the Americans with Dis-
which has been remanufactured so as abilities Act.
to extend its useful life for five years (c) If an OTRB equipped with an inac-
or more, where the purchase or lease cessible restroom is making an express
occurs after the date on which this sub- run of three hours or more without a
453
rest stop, and a passenger with a dis- § 37.207 Discriminatory practices.

ability who is unable to use the inac-
It shall be considered discrimination
cessible restroom requests an unsched-
for any operator to—
uled rest stop, the operator shall make
a good faith effort to accommodate the (a) Deny transportation to pas-
request. The operator is not required to sengers with disabilities, except as pro-
make the stop. However, if the oper- vided in § 37.5(h);
ator does not make the stop, the oper- (b) Use or request the use of persons
ator shall explain to the passenger other than the operator’s employees
making the request the reason for its (e.g., family members or traveling
decision not to do so. companions of a passenger with a dis-
ability, medical or public safety per-
§ 37.203 Lift maintenance. sonnel) for routine boarding or other
assistance to passengers with disabil-
(a) The entity shall establish a sys-
ities, unless the passenger requests or
tem of regular and frequent mainte-
consents to assistance from such per-
nance checks of lifts sufficient to de-
sons;
termine if they are operative.
(c) Require or request a passenger
(b) The entity shall ensure that vehi-
with a disability to reschedule his or
cle operators report to the entity, by
the most immediate means available, her trip, or travel at a time other than
any failure of a lift to operate in serv- the time the passenger has requested,
ice. in order to receive transportation as
required by this subpart;
(c) Except as provided in paragraph
(d) of this section, when a lift is discov- (d) Fail to provide reservation serv-
ered to be inoperative, the entity shall ices to passengers with disabilities
take the vehicle out of service before equivalent to those provided other pas-
the beginning of the vehicle’s next trip sengers; or
and ensure that the lift is repaired be- (e) Fail or refuse to comply with any
fore the vehicle returns to service. applicable provision of this part.
(d) If there is no other vehicle avail- § 37.209 Training and other require-
able to take the place of an OTRB with ments.
an inoperable lift, such that taking the
vehicle out of service before its next OTRB operators shall comply with
trip will reduce the transportation the requirements of §§ 37.161, 37.165–
service the entity is able to provide, 37.167, and 37.173. For purposes of
the entity may keep the vehicle in § 37.173, ‘‘training to proficiency’’ is
service with an inoperable lift for no deemed to include, as appropriate to
more than five days from the day on the duties of particular employees,
which the lift is discovered to be inop- training in proper operation and main-
erative. tenance of accessibility features and
equipment, boarding assistance, se-
§ 37.205 Additional passengers who curement of mobility aids, sensitive
use wheelchairs. and appropriate interaction with pas-
If a number of wheelchair users ex- sengers with disabilities, handling and
ceeding the number of securement lo- storage of mobility devices, and famili-
cations on the bus seek to travel on a arity with the requirements of this
trip, the operator shall assign the se- subpart. OTRB operators shall provide
curement locations on a first come- refresher training to personnel as need-
first served basis. The operator shall ed to maintain proficiency.
offer boarding assistance and the op-
portunity to sit in a vehicle seat to § 37.211 Effect of NHTSA and FHWA
safety rules.
passengers who are not assigned a se-
curement location. If the passengers OTRB operators are not required to
who are not assigned securement loca- take any action under this subpart
tions are unable or unwilling to accept that would violate an applicable Na-
this offer, the operator is not required tional Highway Traffic Safety Admin-
to provide transportation to them on istration or Federal Highway Adminis-
the bus. tration safety rule.
454
§ 37.213 Information collection re- for small operators, and on the last
quirements. Monday in October in each year there-
(a) This paragraph (a) applies to de- after, each operator shall submit a
mand-responsive operators under summary of its forms to the Depart-
§ 37.189 and fixed-route operators under ment of Transportation. The summary
§ 37.193(a)(1) that are required to, and shall state the number of requests for
small mixed-service operators under accessible bus service and the number
§ 37.191 that choose to, provide acces- of times these requests were met. It
sible OTRB service on 48 hours’ ad- shall also include the name, address,
vance notice. telephone number, and contact person
(1) When the operator receives a re- name for the operator.
quest for an accessible bus or equiva- (b) This paragraph (b) applies to
lent service, the operator shall com- small fixed route operators who choose
plete lines 1–9 of the Service Request to provide equivalent service to pas-
Form in Appendix A to this subpart. sengers with disabilities under
The operator shall transmit a copy of § 37.183(b)(2).
the form to the passenger no later than (1) The operator shall complete the
the end of the next business day fol- Service Request Form in Appendix A to
lowing the receipt of the request. The this subpart on every occasion on
passenger shall be required to make which a passenger with a disability
only one request, which covers all legs needs equivalent service in order to be
of the requested trip (e.g., in the case provided transportation.
of a round trip, both the outgoing and (2) The passenger shall be required to
return legs of the trip; in the case of a make only one request, which covers
multi-leg trip, all connecting legs). all legs of the requested trip (e.g., in
(2) The passenger shall be required to the case of a round trip, both the out-
make only one request, which covers going and return legs of the trip; in the
all legs of the requested trip (e.g., in case of a multi-leg trip, all connecting
the case of a round trip, both the out- legs). The operator shall transmit a
going and return legs of the trip; in the copy of the form to the passenger, and
case of a multi-leg trip, all connecting whenever the equivalent service is not
legs). The operator shall transmit a provided, in one of the following ways:
copy of the form to the passenger in (i) By first-class United States mail.
one of the following ways: The operator shall transmit the form
(i) By first-class United States mail. no later than the end of the next busi-
The operator shall transmit the form ness day following the request for
no later than the end of the next busi- equivalent service;
ness day following the request; (ii) By telephone or email. If the pas-
(ii) By telephone or email. If the passenger can receive the confirmation by
senger can receive the confirmation by this method, then the operator shall
this method, then the operator shall provide a unique confirmation number
provide a unique confirmation number to the passenger when the request for
to the passenger when the request is equivalent service is made and provide
made and provide a paper copy of the a paper copy of the form when the pas-
form when the passenger arrives for senger arrives for the requested trip; or
the requested trip; or (iii) By facsimile transmission. If the
(iii) By facsimile transmission. If the passenger can receive the confirmation
passenger can receive the confirmation by this method, then the operator shall
by this method, then the operator shall transmit the form within twenty-four
transmit the form within twenty-four hours of the request for equivalent
hours of the request for transportation. service.
(3) The operator shall retain its copy (3) Beginning on October 28, 2002 and
of the completed form for five years. on the last Monday in October in each
The operator shall make these forms year therafter, each operator shall sub-
available to Department of Transpor- mit a summary of its forms to the De-
tation or Department of Justice offi- partment of Transportation. The sum-
cials at their request. mary shall state the number of situa-
(4) Beginning October 29, 2001, for tions in which equivalent service was
large operators, and October 28, 2002, needed and the number of times such
455
service was provided. It shall also in- System 400 7th Street, S.W., Wash-
clude the name, address, telephone ington, D.C. 20590.
number, and contact person name for
the operator. 40796, July 7, 2004]
(c) This paragraph (c) applies to
fixed-route operators. § 37.215 Review of requirements.
(1) On March 26, 2001, each fixed-route (a) Beginning October 28, 2005, the
large operator shall submit to the De- Department will review the require-
partment a report on how many pas- ments of § 37.189 and their implementa-
sengers with disabilities used the lift tion. The Department will complete
to board accessible buses for the period this review by October 30, 2006.
of October 1999 to October 2000. For (1) As part of this review, the Depart-
fixed-route operators, the report shall ment will consider factors including,
reflect separately the data pertaining but not necessarily limited to, the fol-
to 48-hour advance reservation service lowing:
and other service. (i) The percentage of accessible buses
(2) Beginning on October 29, 2001 and in the demand-responsive fleets of
on the last Monday in October in each large and small demand-responsive op-
year thereafter, each fixed-route oper- erators.
ator shall submit to the Department, a (ii) The success of small and large de-
report on how many passengers with mand-responsive operators’ service at
disabilities used the lift to board acces- meeting the requests of passengers
sible buses. For fixed-route operators, with disabilities for accessible buses in
the report shall reflect separately the a timely manner.
data pertaining to 48-hour advance res- (iii) The ridership of small and large
ervation service and other service. operators’ demand-responsive service
(d) This paragraph (d) applies to each by passengers with disabilities.
over the road bus operator. (iv) The volume of complaints by pas-
(1) On March 26, 2001, each operator sengers with disabilities.
shall submit to the Department, a sum- (v) Cost and service impacts of imple-
mary report listing the number of new mentation of the requirements of
buses and used buses it has purchased § 37.189.
or leased for the period of October 1998 (2) The Department will make one of
through October 2000, and how many the following decisions on the basis of
buses in each category are accessible. the review:
It shall also include the total number (i) Retain § 37.189 without change; or
of buses in the operator’s fleet and the (ii) Modify the requirements of
name, address, telephone number, and § 37.189 for large and/or small demand-
contact person name for the operator. responsive operators.
(2) Beginning on October 29, 2001 and (b) Beginning October 30, 2006, the
on the last Monday in October in each Department will review the require-
year thereafter, each operator shall ments of §§ 37.183, 37.185, 37.187, 37.191
submit to the Department, a summary and 37.193(a) and their implementation.
report listing the number of new buses The Department will complete this re-
and used buses it has purchased or view by October 29, 2007.
leased during the preceding year, and (1) As part of this review, the Depart-
how many buses in each category are ment will consider factors including,
accessible. It shall also include the but not necessarily limited to, the fol-
total number of buses in the operator’s lowing:
fleet and the name, address, telephone (i) The percentage of accessible buses
number, and contact person name for in the fixed-route fleets of large and
the operator. small fixed-route operators.
(e) The information required to be (ii) The success of small and large
submitted to the Department shall be fixed-route operators’ interim or equiv-
sent to the following address: Federal alent service at meeting the requests of
Motor Carrier Safety Administration, passengers with disabilities for acces-
Office of Data Analysis & Information sible buses in a timely manner.
456
(iii) The ridership of small and large also can be found by using the electronic
operators’ fixed-route service by pas- Code of Federal Regulations at http://
sengers with disabilities. www.gpoaccess.gov/ecfr. Because the ADAAG
has been established as a Federal consensus
(iv) The volume of complaints by pas- standard by the Access Board, the Depart-
sengers with disabilities. ment is not republishing the regulations in
(v) Cost and service impacts of imple- their entirety, but is adopting them by
mentation of the requirements of these cross-reference as permitted under 1 CFR
sections. 21.21(c)(4). In a few instances, the Depart-
(2) The Department will make one of ment has modified the language of the
the following decisions on the basis of ADAAG as it applies to entities subject to 49
the review: CFR part 37. These entities must comply
with the modified language in this Appendix
(i) Retain §§ 37.183, 37.185, 37.187, rather than the language of Appendices B
37.191, 37.193(a) without change; or and D to 36 CFR part 1191.
(ii) Modify the requirements of
§§ 37.183, 37.185, 37.187, 37.191, 37.193(a) 206.3 LOCATION—MODIFICATION TO 206.3 OF
for large and/or small fixed-route oper- APPENDIX B TO 36 CFR PART 1191
ators. Accessible routes shall coincide with, or be
located in the same area as general circula-
APPENDIX A TO SUBPART H OF PART 37— tion paths. Where circulation paths are inte-
SERVICE REQUEST FORM rior, required accessible routes shall also be
interior. Elements such as ramps, elevators,
Form for Advance Notice Requests and or other circulation devices, fare vending or
Provision of Equivalent Service other ticketing areas, and fare collection
1. Operator’s name lllllllllllll areas shall be placed to minimize the dis-
2. Address llllllllllllllllll tance which wheelchair users and other per-
llllllllllllllllllllllll sons who cannot negotiate steps may have to
3. Phone number: llllllllllllll travel compared to the general public.
4. Passenger’s name: llllllllllll 406.8—MODIFICATION TO 406 OF APPENDIX D TO
5. Address: llllllllllllllllll 36 CFR PART 1191
llllllllllllllllllllllll
6. Phone number: llllllllllllll A curb ramp shall have a detectable warn-
7. Scheduled date(s) and time(s) of trip(s): l ing complying with 705. The detectable warn-
llllllllllllllllllllllll ing shall extend the full width of the curb
8. Date and time of request: lllllllll ramp (exclusive of flared sides) and shall ex-
9. Location(s) of need for accessible bus or tend either the full depth of the curb ramp or
equivalent service, as applicable: lllll 24 inches (610 mm) deep minimum measured
10. Was accessible bus or equivalent service, from the back of the curb on the ramp sur-
as applicable, provided for trip(s)? Yes face.
llll no llll
11. Was there a basis recognized by U.S. De- 810.2.2 DIMENSIONS—MODIFICATION TO 810.2.2
partment of transportation regulations for OF APPENDIX D TO 36 CFR PART 1191
not providing an accessible bus or equiva- Bus boarding and alighting areas shall pro-
lent service, as applicable, for the trip(s)? vide a clear length of 96 inches (2440 mm),
Yes llll no llll measured perpendicular to the curb or vehi-
If yes, explain llllllllllllllll cle roadway edge, and a clear width of 60
llllllllllllllllllllllll inches (1525 mm), measured parallel to the
[66 FR 9054, Feb. 6, 2001] vehicle roadway. Public entities shall ensure
that the construction of bus boarding and
APPENDIX A TO PART 37—MODIFICATIONS alighting areas comply with 810.2.2, to the
TO STANDARDS FOR ACCESSIBLE extent the construction specifications are
within their control.
TRANSPORTATION FACILITIES
810.5.3 PLATFORM AND VEHICLE FLOOR CO-
The Department of Transportation, in § 37.9
ORDINATION—MODIFICATION TO 810.5.3 OF AP-
of this part, adopts as its regulatory stand-
PENDIX D TO 36 CFR PART 1191
ards for accessible transportation facilities
the revised Americans with Disabilities Act Station platforms shall be positioned to
Guidelines (ADAGG) issued by the Access coordinate with vehicles in accordance with
Board on July 23, 2004. The ADAGG is codi- the applicable requirements of 36 CFR part
fied in the Code of Federal Regulations in 1192. Low-level platforms shall be 8 inches
Appendices B and D of 36 CFR part 1191. Note (205 mm) minimum above top of rail. In light
the ADAAG may also be found via a rail, commuter rail, and intercity rail sys-
hyperlink on the Internet at the following tems where it is not operationally or struc-
address: http://www.access-board.gov/ada-aba/ turally feasible to meet the horizontal gap or
final.htm. Like all regulations, the ADAAG vertical difference requirements of part 1192
457
or 49 CFR part 38, mini-high platforms, car- (7) Constraints on capacity or service
borne or platform-mounted lifts, ramps or availability.
bridge plates or similarly manually deployed In accordance with 49 CFR 37.77, public en-
devices, meeting the requirements of 49 CFR tities operating demand responsive systems
part 38, shall suffice. for the general public which receive financial
EXCEPTION: Where vehicles are boarded assistance under section 18 of the Federal
from sidewalks or street-level, low-level Transit Act must file this certification with
platforms shall be permitted to be less than the appropriate state program office before
8 inches (205 mm). procuring any inaccessible vehicle. Such
public entities not receiving FTA funds shall
[71 FR 63266, Oct. 30, 2006]
also file the certification with the appro-
priate state program office. Such public enti-
APPENDIX B TO PART 37—FTA REGIONAL
ties receiving FTA funds under any other
OFFICES section of the FT Act must file the certifi-
Region I, Federal Transit Administration, cation with the appropriate FTA regional of-
206 Federal Plaza, Suite 2940, New York, fice. This certification is valid for no longer
NY 10278 than one year from its date of filing.
Region II, Federal Transit Administration, llllllllllllllllllllllll
Transportation Systems Center, Kendall (name of authorized official)
Square, 55 Broadway, Suite 921, Cambridge, llllllllllllllllllllllll
MA 02142 (title)
Region III, Federal Transit Administration, llllllllllllllllllllllll
841 Chestnut Street, Suite 714, Philadel- (signature)
phia, PA 19107
Region IV, Federal Transit Administration, MPO Certification of Paratransit Plan
1720 Peachtree Road NW., Suite 400, At-
lanta, GA 30309 The (name of Metropolitan Planning Orga-
Region V, Federal Transit Administration, nization) hereby certifies that it has re-
55 East Monroe Street, Room 1415, Chicago, viewed the ADA paratransit plan prepared by
IL 60603 (name of submitting entity (ies)) as required
Region VI, Federal Transit Administration, under 49 CFR part 37. 139(h) and finds it to be
819 Taylor Street, Suite 9A32, Ft. Worth, in conformance with the transportation plan
TX 76102 developed under 49 CFR part 613 and 23 CFR
Region VII, Federal Transit Administration, part 450 (the FTA/FHWA joint planning regu-
6301 Rockville Road, Suite 303, Kansas lation). This certification is valid for one
City, MS 64131 year.
Region VIII, Federal Transit Administra- llllllllllllllllllllllll
tion, Federal Office Building, 1961 Stout signature
Street, 5th Floor, Denver, CO 80294 llllllllllllllllllllllll
Region IX, Federal Transit Administration, name of authorized official
211 Main Street, Room 1160, San Francisco, llllllllllllllllllllllll
CA 94105 title
Region X, Federal Transit Administration,
3142 Federal Building, 915 Second Avenue,
date
Seattle, WA 98174
Existing Paratransit Service Survey
APPENDIX C TO PART 37—
CERTIFICATIONS This is to certify that (name of public enti-
ty (ies)) has conducted a survey of existing
Certification of Equivalent Service paratransit services as required by 49 CFR
The (name of agency) certifies that its de- 37.137 (a).
mand responsive service offered to individ- llllllllllllllllllllllll
uals with disabilities, including individuals signature
who use wheelchairs, is equivalent to the llllllllllllllllllllllll
level and quality of service offered to indi- name of authorized official
viduals without disabilities. Such service, llllllllllllllllllllllll
when viewed in its entirety, is provided in title
the most integrated setting feasible and is
equivalent with respect to:
date
(1) Response time;
(2) Fares;
Included Service Certification
(3) Geographic service area;
(4) Hours and days of service; This is to certify that service provided by
(5) Restrictions on trip purpose; other entities but included in the ADA para-
(6) Availability of information and reserva- transit plan submitted by (name of submit-
tion capability; and ting entity (ies)) meets the requirements of
458
Office of the Secretary of Transportation Pt. 37, App. D
49 CFR part 37, subpart F providing that APPENDIX D TO PART 37—CONSTRUCTION
ADA eligible individuals have access to the AND INTERPRETATION OF PROVISIONS
service; the service is provided in the manner OF 49 CFR PART 37
represented; and, that efforts will be made to
coordinate the provision of paratransit serv- This appendix explains the Department’s
ice offered by other providers. construction and interpretation of provisions
llllllllllllllllllllllll of 49 CFR part 37. It is intended to be used as
signature definitive guidance concerning the meaning
and implementation of these provisions. The
appendix is organized on a section-by-section
name of authorized official basis. Some sections of the rule are not dis-
llllllllllllllllllllllll cussed in the appendix, because they are self-
title explanatory or we do not currently have in-
llllllllllllllllllllllll terpretive material to provide concerning
date them.
The Department also provides guidance by
Joint Plan Certification I other means, such as manuals and letters.
The Department intends to update this Ap-
This is to certify that (name of entity cov- pendix periodically to include guidance, pro-
ered by joint plan) is committed to providing vided in response to inquiries about specific
ADA paratransit service as part of this co- situations, that is of general relevance or in-
ordinated plan and in conformance with the terest.
requirements of 49 CFR part 37, subpart F.
AMENDMENTS TO 49 CFR PART 27
signature Section 27.67(d) has been revised to ref-
erence the Access Board facility guidelines
(found in appendix A to part 37) as well as
name of authorized official
the Uniform Federal Accessibility Standard
llllllllllllllllllllllll (UFAS). This change was made to ensure
title consistency between requirements under sec-
llllllllllllllllllllllll tion 504 and the ADA. Several caveats relat-
date ing to the application of UFAS (e.g., that
spaces not used by the public or likely to re-
Joint Plan Certification II sult in the employment of individuals with
disabilities would not have to meet the
This is to certify that (name of entity cov- standards) have been deleted. It is the De-
ered by joint plan) will, in accordance with partment’s understanding that provisions of
49 CFR 37.141, maintain current levels of the Access Board standards and part 37 make
paratransit service until the coordinated them unnecessary.
plan goes into effect. The Department is aware that there is a
llllllllllllllllllllllll transition period between the publication of
signature this rule and the effective date of many of its
provisions (e.g., concerning facilities and
paratransit services) during which section
name of authorized official 504 remains the basic authority for accessi-
llllllllllllllllllllllll bility modifications. In this interval, the De-
title partment expects recipients’ compliance
llllllllllllllllllllllll with section 504 to look forward to compli-
date ance with the ADA provisions. That is, if a
recipient is making a decision about the
State Certification that Plans have been shape of its paratransit service between the
Received publication of this rule and January 26, 1992,
the decision should be in the direction of
This is to certify that all ADA paratransit service that will help to comply with post-
plans required under 49 CFR 37.139 have been January 1992 requirements. A recipient that
received by (state DOT) severely curtailed its present paratransit
llllllllllllllllllllllll service in October, and then asked for a
signature three- or five-year phase-in of service under
its paratransit plan, would not be acting
llllllllllllllllllllllll consistent with this policy.
name of authorized official Likewise, the Department would view with
disfavor any attempt by a recipient to accel-
erate the beginning of the construction, in-
title stallation or alteration of a facility to before
llllllllllllllllllllllll January 26, 1992, to ‘‘beat the clock’’ and
date avoid the application of this rule’s facility
459
standards. The Department would be very re- The definitions of ‘‘fixed route system’’
luctant to approve grants, contracts, exemp- and ‘‘demand responsive system’’ derive di-
tion requests etc., that appear to have this rectly from the ADA’s definitions of these
effect. The purpose of the Department’s ad- terms. Some systems, like a typical city bus
ministration of section 504 is to ensure com- system or a dial-a-ride van system, fit clear-
pliance with the national policy stated in ly into one category or the other. Other sys-
the ADA, not to permit avoidance of it. tems may not so clearly fall into one of the
categories. Nevertheless, because how a sys-
SUBPART A—GENERAL tem is categorized has consequences for the
Section 37.3 Definitions requirements it must meet, entities must de-
termine, on a case-by-case basis, into which
The definition of ‘‘commuter authority’’ category their systems fall.
includes a list of commuter rail operators In making this determination, one of the
drawn from a statutory reference in the key factors to be considered is whether the
ADA. It should be noted that this list is not individual, in order to use the service, must
exhaustive. Other commuter rail operators request the service, typically by making a
(e.g., in Chicago or San Francisco) would call.
also be encompassed by this definition. With fixed route service, no action by the
The definition of ‘‘commuter bus service’’ individual is needed to initiate public trans-
is important because the ADA does not re- portation. If an individual is at a bus stop at
quire complementary paratransit to be pro- the time the bus is scheduled to appear, then
vided with respect to commuter bus service that individual will be able to access the
operated by public entities. The rationale transportation system. With demand-
that may be inferred for the statutory ex- reponsive service, an additional step must be
emption for this kind of service concerns its taken by the individual before he or she can
typical characteristics (e.g., no attempt to ride the bus, i.e., the individual must make
comprehensively cover a service area, lim- a telephone call.
ited route structure, limited origins and des-
tinations, interface with another mode of (S. Rept. 101–116 at 54).
transportation, limited purposes of travel).
These characteristics can be found in some Other factors, such as the presence or ab-
transportation systems other than bus sys- sence of published schedules, or the variation
tems oriented toward work trips. For exam- of vehicle intervals in anticipation of dif-
ple, bus service that is used as a dedicated ferences in usage, are less important in mak-
connecter to commuter or intercity rail ing the distinction between the two types of
service, certain airport shuttles, and univer- service. If a service is provided along a given
sity bus systems share many or all of these route, and a vehicle will arrive at certain
characteristics. As explained further in the times regardless of whether a passenger ac-
discussion of subpart B, the Department has tively requests the vehicle, the service in
determined that it is appropriate to cover most cases should be regarded as fixed route
these services with the requirements appli- rather than demand responsive.
cable to commuter bus systems. At the same time, the fact that there is an
The definitions of ‘‘designated public interaction between a passenger and trans-
transportation’’ and ‘‘specified public transportation service does not necessarily make
portation’’ exclude transportation by air- the service demand responsive. For many
craft. Persons interested in matters con- types of service (e.g., intercity bus, intercity
cerning access to air travel for individuals rail) which are clearly fixed route, a pas-
with disabilities should refer to 14 CFR part senger has to interact with an agent to buy
382, the Department’s regulation imple- a ticket. Some services (e.g., certain com-
menting the Air Carrier Access Act. Since muter bus or commuter rail operations) may
the facility requirements of this part refer to use flag stops, in which a vehicle along the
facilities involved in the provision of des- route does not stop unless a passenger flags
ignated or specified public transportation, the vehicle down. A traveler staying at a
airport facilities are not covered by this hotel usually makes a room reservation be-
part. DOJ makes clear that public and pri- fore hopping on the hotel shuttle. This kind
vate airport facilities are covered under its of interaction does not make an otherwise
title II and title III regulations, respectively. fixed route service demand responsive.
The examples given in the definition of On the other hand, we would regard a sys-
‘‘facility’’ all relate to ground transpor- tem that permits user-initiated deviations
tation. We would point out that, since trans- from routes or schedules as demand-respon-
portation by passenger vessels is covered by sive. For example, if a rural public transit
this rule and by DOJ rules, such vessel-re- system (e.g., a section 18 recipient) has a few
lated facilities as docks, wharfs, vessel ter- fixed routes, the fixed route portion of its
minals, etc. fall under this definition. It is system would be subject to the requirements
intended that specific requirements for ves- of subpart F for complementary paratransit
sels and related facilities will be set forth in service. If the entity changed its system so
future rulemaking. that it operated as a route-deviation system,
460
we would regard it as a demand responsive phone.’’ The DOT rule uses the terms
system. Such a system would not be subject interchangably.
to complementary paratransit requirements. The definition of ‘‘transit facility’’ applies
The definition of ‘‘individual with a dis- only with reference to the TDD requirement
ability’’ excludes someone who is currently of appendix A to this Part. The point of the
engaging in the illegal use of drugs, when a definition is to exempt from TDD require-
covered entity is acting on the basis of such ments open structures, like bus shelters, or
use. This concept is more important in em- facilities which are not used primarily as
ployment and public accommodations con- transportation stops or terminals. For exam-
texts than it is in transportation, and is dis- ple, a drug store in a small town may sell
cussed at greater length in the DOJ and intercity bus tickets, and people waiting for
EEOC rules. Essentially, the definition says the bus may even wait for the bus inside the
that, although drug addiction (i.e., the sta- store. But the drug store’s raison d’etre is
tus or a diagnosis of being a drug abuser) is not to be a bus station. Its transportation
a disability, no one is regarded as being an function is only incidental. Consequently, its
individual with a disability on the basis of obligations with respect to TDDs would be
current illegal drug use. those required of a place of public accommo-
Moreover, even if an individual has a dis- dation by DOJ rules.
ability, a covered entity can take action A ‘‘used vehicle’’ means a vehicle which
against the individual if that individual is has prior use; prior, that is, to its acquisition
currently engaging in illegal drug use. For by its present owner or lessee. The definition
example, if a person with a mobility or vi- is not relevant to existing vehicles in one’s
sion impairment is ADA paratransit eligible,
own fleet, which were obtained before the
but is caught possessing or using cocaine or
ADA vehicle accessibility requirements took
marijuana on a paratransit vehicle, the tran-
effect.
sit provider can deny the individual further
eligibility. If the individual has successfully A ‘‘vanpool’’ is a voluntary commuter ride-
undergone rehabilitation or is no longer sharing arrangement using a van with a
using drugs, as explained in the preamble to seating capacity of more than seven persons,
the DOJ rules, the transit provider could not including the driver. Carpools are not in-
continue to deny eligibility on the basis that cluded in the definition. There are some sys-
the individual was a former drug user or still tems using larger vehicles (e.g., buses) that
was diagnosed as a person with a substance operate, in effect, as vanpools. This defini-
abuse problem. tion encompasses such systems. Vanpools
We defined ‘‘paratransit’’ in order to note are used for daily work trips, between com-
its specialized usage in the rule. Part 37 uses muters’ homes (or collection points near
this term to refer to the complementary them) and work sites (or drop points near
paratransit service comparable to public them). Drivers are themselves commuters
fixed route systems which must be provided. who are either volunteers who receive no
Typically, paratransit is provided in a de- compensation for their efforts or persons
mand responsive mode. Obviously, the rule who are reimbursed by other riders for the
refers to a wide variety of demand responsive vehicle, operating, and driving costs.
services that are not ‘‘paratransit,’’ in this The definition of ‘‘wheelchair’’ includes a
specialized sense. wide variety of mobility devices. This inclu-
The ADA’s definition of ‘‘over-the-road siveness is consistent with the legislative
bus’’ may also be somewhat narrower than history of the ADA (See S. Rept. 101–116 at
the common understanding of the term. The 48). While some mobility devices may not
ADA definition focuses on a bus with an ele- look like many persons’ traditional idea of a
vated passenger deck over a baggage com- wheel chair, three and four wheeled devices,
partment (i.e., a ‘‘Greyhound-type’’ bus). of many varied designs, are used by individ-
Other types of buses commonly referred to as uals with disabilities and must be trans-
‘‘over-the-road buses,’’ which are sometimes ported. The definition of ‘‘common wheel-
used for commuter bus or other service, do chair,’’ developed by the Access Board, is in-
not come within this definition. Only buses tended to help transit providers determine
that do come within the definition are sub- which wheelchairs they have to carry. The
ject to the over-the-road bus exception to ac- definition involves an ‘‘envelope’’ relating to
cessibility requirements in Title III of the the Access Board requirements for vehicle
ADA. lifts.
For terminological clarity, we want to A lift conforming to Access Board require-
point out that two different words are used ments is 30″×48″ and capable of lifting a
in ADA regulations to refer to devices on wheelchair/occupant combination of up to
which individuals with hearing impairments 600 pounds. Consequently, a common wheel-
communicate over telephone lines. DOJ uses chair is one that fits these size and weight
the more traditional term ‘‘telecommuni- dimensions. Devices used by individuals with
cations device for the deaf’’ (TDD). The Ac- disabilities that do not fit this envelope (e.g.,
cess Board uses a newer term, ‘‘text tele- may ‘‘gurneys’’) do not have to be carried.
461
Section 37.5 Nondiscrimination seriously disruptive, or illegal conduct. If an
entity may legitimately refuse service to
This section states the general non-
someone, it may condition service to him on
discrimination obligation for entities pro-
actions that would mitigate the problem.
viding transportation service. It should be
The entity could require an attendant as a
noted that virtually all public and private
condition of providing service it otherwise
entities covered by this regulation are also
had the right to refuse.
covered by DOJ regulations, which have The rule also points out that involuntary
more detailed statements of general non- conduct related to a disability that may of-
discrimination obligations. fend or annoy other persons, but which does
Under the ADA, an entity may not consign not pose a direct treat, is not a basis for re-
an individual with disabilities to a separate, fusal of transportation. For example, some
‘‘segregated,’’ service for such persons, if the persons with Tourette’s syndrome may make
individual can in fact use the service for the involuntary profane exclamations. These
general public. This is true even if the indi- may be very annoying or offensive to others,
vidual takes longer, or has more difficulty, but would not be a ground for denial of serv-
than other persons in using the service for ice. Nor would it be consistent with the non-
the general public. discrimination requirements of this part to
One instance in which this principal ap- deny service based on fear or misinformation
plies concerns the use of designated priority about the disability. For example, a transit
seats (e.g., the so-called ‘‘elderly and handi- provider could not deny service to a person
capped’’ seats near the entrances to buses). A with HIV disease because its personnel or
person with a disability (e.g., a visual im- other passengers are afraid of being near peo-
pairment) may choose to take advantage of ple with that condition.
this accommodation or not. If not, it is con- This section also prohibits denials of serv-
trary to rule for the entity to insist that the ice or the placing on services of conditions
individual must sit in the priority seats. inconsistent with this part on individuals
The prohibition on special charges applies with disabilities because of insurance com-
to charges for service to individuals with dis- pany policies or requirements. If an insur-
abilities that are higher than charges for the ance company told a transit provider that it
same or comparable services to other per- would withdraw coverage, or raise rates, un-
sons. For example, if a shuttle service less a transit provider refused to carry per-
charges $20.00 for a ride from a given loca- sons with disabilities, or unless the provider
tion to the airport for most people, it could refused to carry three-wheeled scooters, this
not charge $40.00 because the passenger had a would not excuse the provider from pro-
disability or needed to use the shuttle serv- viding the service as mandate by this part.
ice’s lift-equipped van. Higher mileage This is not a regulatory requirement on in-
charges for using an accessible vehicle would surance companies, but simply says that
likewise be inconsistent with the rule. So covered entities must comply with this part,
would charging extra to carry a service ani- even in the face of difficulties with their in-
mal accompanying an individual with a dis- surance companies.
ability.
If a taxi company charges $1.00 to stow lug- Section 37.7 Standards for Accessible Vehicles
gage in the trunk, it cannot charge $2.00 to This section makes clear that, in order to
stow a folding wheelchair there. This provi- meet accessibility requirements of this rule,
sion does not mean, however, that a trans- vehicles must comply with Access Board
portation provider cannot charge non- standards, incorporated in DOT rules as 49
discriminatory fees to passengers with dis- CFR part 38. Paragraph (b) of § 37.7 spells out
abilities. The taxi company in the above ex- a procedure by which an entity (public or
ample can charge a passenger $1.00 to stow a private) can deviate from provisions of part
wheelchair in the trunk; it is not required to 38 with respect to vehicles. The entity can
waive the charge. This section does not pro- make a case to the Administrator that it is
hibit the fares for paratransit service which unable to comply with a particular portion
transit providers are allowed to charge under of part 38, as written, for specified reasons,
§ 37.131(d). and that it is providing comparable compli-
A requirement for an attendant is incon- ance by some alternative method. The entity
sistent with the general nondiscrimination would have to describe how its alternative
principle that prohibits policies that unnec- mode of compliance would meet or exceed
essarily impose requirements on individuals the level of access to or usability of the vehi-
with disabilities that are not imposed on cle that compliance with part 38 would oth-
others. Consequently, such requirements are erwise provide.
prohibited. An entity is not required to pro- It should be noted that equivalent facilita-
vide attendant services (e.g., assistance in tion does not provide a means to get a waiv-
toileting, feeding, dressing), etc. er of accessibility requirements. Rather, it is
This provision must also be considered in a way in which comparable (not a lesser de-
light of the fact that an entity may refuse gree of) accessibility can be provided by
service to someone who engages in violent, other means. The entity must consult with
462
the public through some means of public par- order. The existing modifications must con-
ticipation in devising its alternative form of form to ANSI A–117.1, Specifications for
compliance, and the public input must be re- Making Buildings and Facilities Accessible
flected in the submission to the Adminis- to and Usable by the Physically Handicapped
trator (or the Federal Railroad Adminis- 1980, or the Uniform Federal Accessibility
trator in appropriate cases, such as a request Standard. (UFAS).
concerning Amtrak). The Administrator will For example, if an entity used a Federal
make a case-by-case decision about whether grant or loan or money to make changes to
compliance with part 38 was achievable and, a building, it would already have had to com-
if not, whether the proffered alternative ply with the Uniform Federal Accessibility
complies with the equivalent facilitation Standards. Likewise, if a private entity, act-
standard. DOT intends to consult with the ing without any Federal money in the
Access Board in making these determina- project, may have complied with the ANSI
tions. A117.1 standard. So long as the work was
This equivalent facilitation provision can done in conformity with the standard that
apply to buses or other motor vehicles as was in effect when the work was done, the al-
well as to rail cars and vehicles. An example teration will be considered accessible.
of what could be an equivalent facilitation
However, because one modification was
would concern rail cars which would leave
made to a facility under one of these stand-
too wide a horizontal gap between the door
ards, the entity still has a responsibility to
and the platform. If the operator used a com-
bination of bridgeplates and personnel to make other modifications needed to comply
bridge the gap, it might be regarded as an with applicable accessibility requirements.
equivalent facilitation in appropriate cir- For example, if an entity has made some
cumstances. modifications to a key station according to
Section 37.7(c) clarifies which specifica- one of these older standards, but the modi-
tions must be complied with for over-the- fications do not make the key station en-
road buses purchased by public entities tirely accessible as this rule requires, then
(under subpart D of part 37) or private enti- additional modifications would have to be
ties standing in the shoes of the public enti- made according to the standards of appendix
ty (as described in § 37.23 of part 37). This sec- A. Suppose this entity has put an elevator
tion is necessary to make clear that over- into the station to make it accessible to in-
the-road coaches must be accessible, when dividuals who use wheelchairs. If the eleva-
they are purchased by or in furtherance of a tor does not fully meet appendix A stand-
contract with a public entity. While the Oc- ards, but met the applicable ANSI standard
tober 4, 1990 rule specified that over-the-road when it was installed, it would not need fur-
coaches must be accessible under these cir- ther modifications now. But if it had not al-
cumstances, we had not previously specified ready done so, the entity would have to in-
what constitutes accessibility. stall a tactile strip along the platform edge
Accordingly, this paragraph specifies that in order to make the key station fully acces-
an over-the-road bus must have a lift which sible as provided in this rule. The tactile
meets the performance requirements of a strip would have to meet appendix A require-
regular bus lift (see § 38.23) and must meet ments.
the interim accessibility features specified The rule specifically provides that
for all over-the-road buses in part 3, subpart ‘‘grandfathering’’ applies only to alterations
G. of individual elements and spaces and only
to the extent that provisions covering those
Section 37.9 Standards for Transportation elements or spaces are found in UFAS or
Facilities AHSI A117.1. For example, alterations to the
This section makes clear that, in order to telephones in a key station may have been
meet accessibility requirements of this rule, carried out in order to lower them to meet
vehicles must comply with appendix A to the requirements of UFAS, but tele-
part 37, which incorporates the Access Board communications devices for the deaf (TDDs)
facility guidelines. were not installed. (Neither UFAS nor the
Paragraph (b) of § 37.9 provides that, under ANSI standard include requirements con-
certain circumstances, existing accessibility cerning TDDs). However, because appendix A
modifications to key station facilities do not does contain TDD requirements, the key sta-
need to be modified further in order to con- tion must now be altered in accordance with
form to appendix A. This is true even if the the standards for TDDs. Similarly, earlier al-
standards under which the facility was modi- teration of an entire station in accordance
fied differ from the Access Board guidelines with UFAS or the ANSI standard would not
or provide a lesser standard of accessibility. relieve an entity from compliance with any
To qualify for this ‘‘grandfathering,’’ alter- applicable provision concerning the gap be-
ations must have been before January 26, tween the platform between the platform
1992. As in other facility sections of the rule, and the vehicle in a key station, because nei-
an alteration is deemed to begin with the ther of these two standards addresses the
issuance of a notice to proceed or work interface between vehicle and platform.
463
New paragraph (c) of this section clarifies ADA. Recipients of Federal financial assist-
a provision of the Access Board’s standards ance from DOT (whether public or private
concerning the construction of bus stop pads entities) are subject to DOT’s section 504 en-
at bus stops. The final Access Board stand- forcement procedures. The existing proce-
ard (found at section 10.2.1(1) of appendix A dures, including administrative complaints
to part 37) has been rewritten slightly to to the DOT Office of Civil Rights, investiga-
clear up confusion about the perceived nection, attempts at conciliation, and final re-
essary construction of a bus stop pad. Sec- sort to proceedings to cut off funds to a non-
tion 10.2.1(1) does not require that anyone complying recipient, will continue to be
build a bus stop pad; it does specify what a used.
bus stop pad must look like, if it is con- In considering enforcement matters, the
structed. The further clarifying language in Department is guided by a policy that em-
§ 37.9(c) explains that public entities must phasizes compliance. The aim of enforcement
exert control over the construction of bus action, as we see it, is to make sure that en-
stop pads if they have the ability to do so. tities meet their obligations, not to impose
The Access Board, as well as DOT, recognize sanctions for their own sake. The Depart-
that most physical improvements related to ment’s enforcement priority is on failures to
bus stops are out of the control of the transit comply with basic requirements and ‘‘pat-
provider. Paragraph (c) of § 37.9 merely notes tern or practice’’ kinds of problems, rather
that where a transit provider does have con- than on isolated operational errors.
trol over the construction, it must exercise Under the DOJ rules implementing title II
that control to ensure that the pad meets of the ADA (28 CFR part 35), DOT is a ‘‘des-
these specifications. ignated agency’’ for enforcement of com-
One further clarification concerning the plaints relating to transportation programs
implication of this provision deals with a bus of public entities, even if they do not receive
loading island at which buses pull up on both Federal financial assistance. When it re-
sides of the island. It would be possible to ceives such a complaint, the Department
read the bus pad specification to require the will investigate the complaint, attempt con-
island to be a minimum of 84 inches wide ciliation and, if conciliation is not possible,
(two widths of a bus stop pad), so that a lift take action under section 504 and/or refer the
could be deployed from buses on both sides of matter to the DOJ for possible further ac-
the island at the same time. A double-wide tion.
bus pad, however, is likely to exceed avail- Title III of the ADA does not give DOT any
able space in most instances. administrative enforcement authority with
Where there is space, of course, building a respect to private entities whose transpor-
double-wide pad is one acceptable option tation services are subject to part 37. In its
under this rule. However, the combination of title III rule (28 CFR part 36), DOJ assumes
a pad of normal width and standard oper- enforcement responsibility for all title III
ational practices may also suffice. (Such matters. If the Department of Transpor-
practices could be offered as an equivalent tation receives complaints of violations of
facilitation.) For example, buses on either part 37 by private entities, it will refer the
side of the island could stop at staggered lo- matters to the DOJ.
cations (i.e., the bus on the left side could It should be pointed out that the ADA in-
stop several feet ahead of the bus on the cludes other enforcement options. Individ-
right side), so that even when buses were on uals have a private right of action against
both sides of the island at once, their lifts entities who violate the ADA and its imple-
could be deployed without conflict. Where it menting regulations. The DOJ can take vio-
is possible, building the pad a little longer lators to court. These approaches are not
than normal size could facilitate such an ap- mutually exclusive with the administrative
proach. In a situation where staggered stop enforcement mechanisms described in this
areas are not feasible, an operational prac- section. An aggrieved individual can com-
tice of having one bus wait until the other’s plain to DOT about an alleged transpor-
lift cycle had been completed could do the tation violation and go to court at the same
job. Finally, the specification does not re- time. Use of administrative enforcement pro-
quire that a pad be built at all. If there is cedures is not, under titles II and III, an ad-
nothing that can be done to permit lift de- ministrative remedy that individuals must
ployment on both sides of an island, the exhaust before taking legal action.
buses can stop on the street, or some other We also would point out that the ADA does
location, so long as the lift is deployable. not assert any blanket preemptive authority
Like § 37.7, this section contains a provi- over state or local nondiscrimination laws
sion allowing an entity to request approval and enforcement mechanisms. While require-
for providing accessibility through an equiv- ments of the ADA and this regulation would
alent facilitation. preempt conflicting state or local provisions
(e.g., a building code or zoning ordinance
Section 37.11 Administrative Enforcement
that prevents compliance with appendix A or
This section spells out administrative other facility accessibility requirements, a
means of enforcing the requirements of the provision of local law that said bus drivers
464
could not leave their seats to help secure transit system’s edge, while DOJ’s rule
wheelchair users), the ADA and this rule do would cover the zoo as well.
not prohibit states and localities from legis- DOT and DOJ have coordinated their rules,
lating in areas relating to disability. For ex- and the rules have been drafted to be con-
ample, if a state law requires a higher degree sistent with one another. Should, in the con-
of service than the ADA, that requirement text of some future situation, there be an ap-
could still be enforced. Also, states and lo- parent inconsistency between the two rules,
calities may continue to enforce their own the DOT rule would control within the
parallel requirements. For example, it would sphere of transportation services, facilities
be a violation of this rule for a taxi driver to and vehicles.
refuse to pick up a person based on that per-
son’s disability. Such a refusal may also be a Section 37.23 Service Under Contract
violation of a county’s taxi rules, subjecting This section requires private entities to
the violator to a fine or suspension of oper- ‘‘stand in the shoes’’ of public entities with
ating privileges. Both ADA and local rem- whom they contract to provide transpor-
edies could proceed in such a case. tation services. It ensures that, while a pub-
Labor-management agreements cannot lic entity may contract out its service, it
stand in conflict with the requirements of may not contract away its ADA responsibil-
the ADA and this rule. For example, if a ities. The requirement applies primarily to
labor-management agreement provides that vehicle acquisition requirements and to serv-
vehicle drivers are not required to provide ice provision requirements.
assistance to persons with disabilities in a If a public entity wishes to acquire vehi-
situation in which this rule requires such as- cles for use on a commuter route, for exam-
sistance, then the assistance must be pro- ple, it must acquire accessible vehicles. It
vided notwithstanding the agreement. Labor may acquire accessible over-the-road buses,
and management do not have the authority it may acquire accessible full-size transit
to agree to violate requirements of Federal buses, it may acquire accessible smaller
law. buses, or it may acquire accessible vans. It
does not matter what kind of vehicles it ac-
Section 37.13 Effective Date for Certain Vehicle
quires, so long as they are accessible. On the
Lift Specifications.
other hand, if the public entity wants to use
This section contains an explicit state- inaccessible buses in its existing fleet for the
ment of the effective date for vehicle lift commuter service, it may do so. All replace-
platform specifications. The Department has ment vehicles acquired in the future must, of
decided to apply the new part 38 lift platform course, be accessible.
specifications to solicitations after January Under this provision, a private entity
25, 1992. As in the October 4, 1990, rule imple- which contracts to provide this commuter
menting the acquisition requirements; the service stands in the shoes of the public enti-
date of a solicitation is deemed to be the ty and is subject to precisely the same re-
closing date for the submission of bids or of- quirements (it is not required to do more
fers in a procurement. than the public entity). If the private entity
acquires vehicles used to provide the service,
SUBPART B—APPLICABILITY the vehicles must be accessible. If it cannot,
or chooses not to, acquire an accessible vehi-
Section 37.21 Applicability—General
cle of one type, it can acquire an accessible
This section emphasizes the broad applica- vehicle of another type. Like the public enti-
bility of part 37. Unlike section 504, the ADA ty, it can provide the service with inacces-
and its implementing rules apply to entities sible vehicles in its existing fleet.
whether or not they receive Federal finan- The import of the provision is that it re-
cial assistance. They apply to private and quires a private entity contracting to pro-
public entities alike. For entities which do vide transportation service to a public entity
receive Federal funds, compliance with the to follow the rules applicable to the public
ADA and part 37 is a condition of compliance entity. For the time being, a private entity
with section 504 and 49 CFR part 27, DOT’s operating in its own right can purchase a
section 504 rule. new over-the-road bus inaccessible to indi-
Virtually all entities covered by this rule viduals who use wheelchairs. When that pri-
also are covered by DOJ rules, either under vate entity operates service under contract
28 CFR part 36 as state and local program to the public entity, however, it is just as ob-
providers or under 28 CFR part 35 as opera- ligated as the public entity itself to purchase
tors of places of public accommodation. Both an accessible bus for use in that service,
sets of rules apply; one does not override the whether or not it is an over-the-road bus.
other. The DOT rules apply only to the enti- The ‘‘stand in the shoes’’ requirement ap-
ty’s transportation facilities, vehicles, or plies not only to vehicles acquired by private
services; the DOJ rules may cover the enti- entities explicitly under terms of an exe-
ty’s activities more broadly. For example, if cuted contract to provide service to a public
a public entity operates a transit system and entity, but also to vehicles acquired ‘‘in con-
a zoo, DOT’s coverage would stop at the templation of use’’ for service under such a
465
contract. This language is included to ensure tation system for a city, and which receives
good faith compliance with accessibility re- section 3 or 9 funds from FTA via an agree-
quirements for vehicles acquired before the ment with a state or local government agen-
execution of a contract. Whether a par- cy, would fall under the provisions of this
ticular acquisition is in contemplation of use section. The provider would have to comply
on a contract will be determined on a case- with the vehicle acquisition, paratransit,
by-case basis. However, acquiring a vehicle a and service requirements that would apply
short time before a contract is executed and to the public entity through which it re-
then using it for the contracted service is an ceives the FTA funds, if that public entity
indication that the vehicle was acquired in operated the system itself. The Department
contemplation of use on the contract, as is would not, however, construe this section to
acquiring a vehicle obstensibly for other apply to situations in which the degree of
service provided by the entity and then regu- FTA funding and state and local agency in-
larly rotating it into service under the con- volvement is considerably less, or in which
tract. the system of transportation involved is not
The ‘‘stand in the shoes’’ requirement is a de facto surrogate for a traditional public
applicable only to the vehicles and service entity fixed route transit system serving a
(public entity service requirements, like city (e.g., a private non-profit social service
§ 37.163, apply to a private entity in these sit- agency which receives FTA section 16(b)(2)
uations) provided under contract to a public funds to purchase a vehicle).
entity. Public entity requirements clearly do This section also requires that a public en-
not apply to all phases of a private entity’s tity not diminish the percentage of acces-
operations, just because it has a contract sible vehicles in its fleet through con-
with a public entity. For example, a private tracting. For example, suppose a public enti-
bus company, if purchasing buses for service ty has 100 buses in its fleet, of which 20 are
under contract to a public entity, must pur- accessible, meaning that 20 percent of its
chase accessible buses. The same company, fleet is accessible. The entity decides to add
to the extent permitted by the private entity a fixed route, for which a contractor is en-
provisions of this part, may purchase inac- gaged. The contractor is supplying ten of its
cessible vehicles for its tour bus operations. existing inaccessible buses for the fixed
The Department also notes that the
route. To maintain the 20 percent accessi-
‘‘stands in the shoes’’ requirement may dif-
bility ratio, there would have to be 22 acces-
fer depending on the kind of service in-
sible buses out of the 110 buses now in oper-
volved. The public entity’s ‘‘shoes’’ are
ation in carrying out the public entity’s
shaped differently, for example, depending
service. The public entity could maintain its
on whether the public entity is providing
20 percent level of accessibility through any
fixed route or demand responsive service to
one or more of a number of means, such as
the general public. In the case of demand re-
having the contractor to provide two acces-
sponsive service, a public entity is not re-
sible buses, retrofitting two if its own exist-
quired to buy an accessible vehicle if its de-
mand responsive system, when viewed in its ing buses, or accelerating replacement of
entirety, provides service to individuals with two of its own inaccessible buses with acces-
disabilities equivalent to its service to other sible buses.
persons. A private contractor providing a This rule applies the ‘‘stand in the shoes’’
portion of this paratransit service would not principle to transactions wholly among pri-
necessarily have to acquire an accessible ve- vate entities as well. For example, suppose a
hicle if this equivalency test is being met by taxi company (a private entity primarily en-
the system as a whole. Similarly, a public gaged in the business of transporting people)
entity can, after going through a ‘‘good faith contracts with a hotel to provide airport
efforts’’ search, acquire inaccessible buses. A shuttle van service. With respect to that
private entity under contract to the public service, the taxi company would be subject
can do the same. ‘‘Stand in the shoes’’ may to the requirements for private entities not
also mean that, under some circumstances, a primarily in the business of transporting
private contractor need not acquire acces- people, since it would be ‘‘standing in the
sible vehicles. If a private company con- shoes’’ of the hotel for that purpose.
tracts with a public school district to pro-
Section 37.25 University Transportation
vide school bus service, it is covered, for that
Systems
purpose, by the exemption for public school
transportation. Private university-operated transportation
In addition, the requirement that a private systems are subject to the requirements of
entity play by the rules applicable to a pub- this rule for private entities not primarily
lic entity can apply in situations involving engaged in the business of transporting peo-
an ‘‘arrangement or other relationship’’ with ple. With one important exception, public
a public entity other than the traditional university-operated transportation systems
contract for service. For example, a private are subject to the requirements of the rule
utility company that operates what is, in es- for public entities. The nature of the systems
sence, a regular fixed route public transpor- involved—demand-responsive or fixed
466
route—determines the precise requirements tation services that involve calling for a car
involved. and a driver to take one places (e.g., lim-
For public university fixed route systems, ousine services, of the kind that provide lux-
public entity requirements apply. In the case ury cars and chauffeurs for senior proms and
of fixed route systems, the requirements for analogous adult events) are regarded as taxi
commuter bus service would govern. This services.
has the effect of requiring the acquisition of Under the ADA, no private entity is re-
accessible vehicles and compliance with quired to purchase an accessible automobile.
most other provisions of the rule, but does If a taxi company purchases a larger vehicle,
not require the provision of complementary like a van, it is subject to the same rules as
paratransit or submitting a paratransit plan. any other private entity primarily engaged
As a result, private and public universities in the business of transporting people which
will have very similar obligations under the operates a demand responsive service. That
rule. is, unless it is already providing equivalent
service, any van it acquires must be acces-
Section 37.27 Transportation for Elementary sible. Equivalent service is measured accord-
and Secondary Education Systems ing to the criteria of § 37.105. Taxi companies
This section restates the statutory exemp- are not required to acquire vehicles other
tion from public entity requirements given than automobiles to add accessible vehicles
to public school transportation. This exten- to their fleets.
Taxi companies are subject to non-
sion also applies to transportation of pre-
discrimination obligations. These obliga-
school children to Head Start or special edu-
tions mean, first, that a taxi service may not
cation programs which receive Federal as-
deny a ride to an individual with a disability
sistance. It also applies to arrangements per-
who is capable of using the taxi vehicles. It
mitting pre-school children of school bus
would be discrimination to pass up a pas-
drivers to ride a school bus or allowing teen-
senger because he or she was blind or used a
age mothers to be transported to day care fa-
wheelchair, if the wheelchair was one that
cilities at a school or along a school bus
could be stowed in the cab and the passenger
route so that their mothers may continue to
could transfer to a vehicle seat. Nor could a
attend school (See H. Rept. 101–485, pt. 1 at
taxi company insist that a wheelchair user
27). The situation for private schools is more wait for a lift-equipped van if the person
complex. According to the provision, a pri- could use an automobile.
vate elementary or secondary school’s trans- It would be discrimination for a driver to
portation system is exempt from coverage refuse to assist with stowing a wheelchair in
under this rule if all three of the following the trunk (since taxi drivers routinely assist
conditions are met: (1) The school receives passengers with stowing luggage). It would
Federal financial assistance; (2) the school is be discrimination to charge a higher fee or
subject to section 504; and (3) the school’s fare for carrying a person with a disability
transportation system provides transpor- than for carrying a non-disabled passenger,
tation services to individuals with disabil- or a higher fee for stowing a wheelchair than
ities, including wheelchair users, equivalent for stowing a suitcase. (Charging the same
to those provided to individuals without dis- fee for stowing a wheelchair as for stowing a
abilities. The test of equivalency is the same suitcase would be proper, however.) The fact
as that for other private entities, and is de- that it may take somewhat more time and
scribed under § 37.105. If the school does not effort to serve a person with a disability
meet all these criteria, then it is subject to than another passenger does not justify dis-
the requirements of Part 37 for private enti- criminatory conduct with respect to pas-
ties not primarily engaged in the business of sengers with disabilities.
transporting people. State or local governments may run user-
The Department notes that, given the con- side subsidy arrangements for the general
stitutional law on church-state separation, public (e.g., taxi voucher systems for senior
it is likely that church-affiliated private citizens or low-income persons). Under the
schools do not receive Federal financial as- DOJ title II rule, these programs would have
sistance. To the extent that these schools’ to meet ‘‘program accessibility’’ require-
transportation systems are operated by reli- ments, which probably would require that
gious entities or entities controlled by reli- accessible transportation be made available
gious organizations, they are not subject to to senior citizens or low-income persons with
the ADA at all, so this section does not apply disabilities. This would not directly require
to them. private taxi providers who accept the vouch-
ers to purchase accessible vehicles beyond
Section 37.29 Private Providers of Taxi Service the requirements of this rule, however.
This section first recites that providers of
Section 37.31 Vanpools
taxi service are private entities primarily
engaged in the business of transporting peo- This provision applies to public vanpool
ple which provide demand responsive service. systems the requirements for public entities
For purposes of this section, other transpor- operating demand responsive systems for the
467
general public. A public vanpool system is Since many of these operators are small
one operated by a public entity, or in which businesses, it may be difficult for them to
a public entity owns or purchases or leases meet equivalency requirements on their own
the vehicles. Lesser degrees of public in- without eventually having all or nearly all
volvement with an otherwise private ride- accessible vehicles, which could pose eco-
sharing arrangement (e.g., provision of park- nomic problems. One suggested solution to
ing spaces, HOV lanes, coordination or clear- this problem is for the operators serving a
inghouse services) do not convert a private given airport to form a pool or consortium
into a public system. arrangement, in which a number of shared
The requirement for a public vanpool sys- accessible vehicles would meet the transpor-
tem is that it purchase or lease an accessible tations of individuals with disabilities. As in
vehicle unless it can demonstrate that it other forms of transportation, such an ar-
provides equivalent service to individuals rangement would have to provide service in
with disabilities, including individuals who a nondiscriminatory way (e.g., in an inte-
use wheelchairs, as it provides to individuals grated setting, no higher fares for accessible
without disabilities. For a public vanpool service).
system, the equivalency requirement would
be met if an accessible vehicle is made avail- Section 37.35 Supplemental Service for Other
able to and used by a vanpool when an indi- Transportation Modes
vidual with a disability needs such a vehicle
to participate. Public vanpool systems may This section applies to a number of situa-
meet this requirement through obtaining a tions in which an operator of another trans-
percentage of accessible vehicles that is rea- portation mode uses bus or other service to
sonable in light of demand for them by par- connect its service with limited other points.
ticipants, but this is not required, so long as One instance is when an intercity railroad
the entity can respond promptly to requests route is set up such that the train stops out-
for participation in a vanpool with the provi- side the major urban center which is the ac-
sion of an accessible van when needed. tual destination for many passengers. Exam-
There is no requirement for private van- ples mentioned to us include bus service run
pools, defined as a voluntary arrangement in by Amtrak from a stop in Columbus, Wis-
which the driver is compensated only for ex- consin, to downtown Madison, or from San
penses. Jose to San Francisco. Such service is fixed
Section 37.33 Airport Transportation Systems route, from the train station to a few points
in the metropolitan area, with a schedule
Fixed route transportation systems oper- keyed to the train schedule. It would be re-
ated by public airports are regarded by this garded as commuter bus service, meaning
section as fixed route commuter bus sys- that accessible vehicles would have to be ac-
tems. As such, shuttles among terminals and quired but complementary paratransit was
parking lots, connector systems among the not required.
airport and a limited number of other local Another instance is one in which a com-
destinations must acquire accessible buses, muter rail operator uses fixed route bus serv-
but are not subject to complementary para- ice as a dedicated connection to, or exten-
transit requirements. (If a public airport op- sion of, its rail service. The service may go
erates a demand responsive system for the
to park and ride lots or other destinations
general public, it would be subject to the
beyond the vicinity of the rail line. Again,
rules for demand responsive systems for the
this service shares the characteristics of
general public.)
commuter bus service that might be used
It should be noted that this section applies
only to transportation services that are op- even if the rail line were not present, and
erated by public airports themselves (or by does not attempt to be a comprehensive
private contractors who stand in their mass transit bus service for the area.
shoes). When a regular urban mass transit Of course, there may be instances in which
system serves the airport, the airport is sim- a rail operator uses demand responsive in-
ply one portion of its service area, treated stead of fixed route service for a purpose of
for purposes of this rule like the rest of its this kind. In that case, the demand respon-
service area. sive system requirements of the rule would
Virtually all airports are served by taxi apply.
companies, who are subject to § 37.29 at air- Private entities (i.e., those operating
ports as elsewhere. In addition, many air- places of public accommodation) may oper-
ports are served by jitney or shuttle sys- ate similar systems, as when a cruise ship
tems. Typically, these systems operate in a operator provides a shuttle or connector be-
route-deviation or similar variable mode in tween an airport and the dock. This service
which there are passenger-initiated decisions is covered by the rules governing private en-
concerning destinations. We view such sys- tities not primarily engaged in the business
tems as demand responsive transportation of transporting people. Fixed route or de-
operated by private entities primarily en- mand responsive rules apply, depending on
gaged in the business of transporting people. the characteristics of the system involved.
468
One situation not explicitly covered in this ting from Point A to Point B. At a theme
section concerns ad hoc transportation ar- park, for instance, a large roller coaster
ranged, for instance, by a rail operator when (though a ‘‘train’’ of cars on a track) is a
the train does not wind up at its intended public accommodation not subject to this
destination. For example, an Amtrak train rule; the tram that transports the paying
bound for Philadelphia may be halted at Wil- customers around the park, with a stop at
mington by a track blockage between the the roller coaster, is a transportation system
two cities. Usually, the carrier responds by subject to the ‘‘private, not primarily’’ pro-
providing bus service to the scheduled des- visions of this part.
tination or to the next point where rail serv- Employer-provided transportation for em-
ice can resume. ployees is not covered by this part, but by
The service that the carrier provides in EEOC rules under title I of the ADA. (Public
this situation is essentially a continuation entities are also subject to DOJ’s title II
by other means of its primary service. We rules with respect to employment.) This ex-
view the obligation of the rail operator as clusion from part 37 applies to transpor-
being to ensure that all passengers, includ- tation services provided by an employer
ing individuals with disabilities, are pro- (whether access to motor pool vehicles,
vided service to the destination in a non- parking shuttles, employer-sponsored van
discriminatory manner. This includes, for in- pools) that is made available solely to its
stance, providing service in the most inte- own employees. If an employer provides serv-
grated setting appropriate to the needs of ice to its own employees and other persons,
the individual and service that gets a pas- such as workers of other employers or cus-
senger with a disability to the destination as tomers, it would be subject to the require-
soon as other passengers. ments of this part from private entities not
primarily engaged in the business of trans-
Section 37.37 Other Applications porting people or public entities, as applica-
The ADA specifically defines ‘‘public enti- ble.
ty.’’ Anything else is a ‘‘private entity.’’ The The rule looks to the private entity actu-
statute does not include in this definition a ally providing the transportation service in
private entity that receives a subsidy or question in determining whether the ‘‘pri-
franchise from a state or local government vate, primarily’’ or ‘‘private, not primarily’’
or is regulated by a public entity. Only rules apply. For example, Conglomerate,
through the definition of ‘‘operates’’ (see dis- Inc., owns a variety of agribusiness, petro-
cussion of § 37.23) do private entities’ rela- chemical, weapons system production, and
tionships to public entities subject private fast food corporations. One of its many sub-
entities to the requirements for public enti- sidiaries, Green Tours, Inc., provides charter
ties. Consequently, in deciding which provi- bus service for people who want to view na-
sions of the rule to apply to an entity in tional parks, old-growth forests, and other
other than situations covered by § 37.23, the environmentally significant places. It is
nature of the entity—public or private—is probably impossible to say in what business
determinative. Conglomerate, Inc. is primarily engaged, but
Transportation service provided by public it clearly is not transporting people. Green
accommodations is viewed as being provided Tours, Inc., on the other hand, is clearly pri-
by private entities not primarily engaged in marily engaged in the business of trans-
the business of transporting people. Either porting people, and the rule treats it as such.
the provisions of this part applicable to de- On the other hand, when operating a trans-
mand responsive or fixed route systems portation service off to the side of to the
apply, depending on the nature of a specific main business of a public accommodation
system at a specific location. The distinction (e.g., a hotel shuttle), the entity as a whole
between fixed route and demand responsive would be considered. Even if some dedicated
systems is discussed in connection with the employees are used to provide the service,
definitions section above. It is the responsi- shuttles and other systems provided as a
bility of each private entity, in the first in- means of getting to, from, or around a public
stance, to assess the nature of each transpor- accommodation remain solidly in the ‘‘pri-
tation system on a case-by-case basis and de- vate, not primarily’’ category.
termine the applicable rules.
On the other hand, conveyances used for SUBPART C—TRANSPORTATION FACILITIES
recreational purposes, such as amusement Section 37.41 Construction of Transportation
park rides, ski lifts, or historic rail cars or Facilities by Public Entities
trolleys operated in museum settings, are
not viewed as transportation under this rule Section 37.41 contains the general require-
at all. Other conveyances may fit into this ment that all new facilities constructed
category as well. after January 25, 1992, be accessible to and
The criterion for determining what re- usable by individuals with disabilities. This
quirements apply is whether the convey- provision tracks the statute closely, and is
ances are primarily an aspect of the rec- analogous to a provision in the DOJ regula-
reational experience itself or a means of get- tions for private entities. Section 226 of the
469
ADA provides little discretion in this re- Second, alterations to drinking fountains,
quirement. telephones, and restrooms do not have to be
The requirement is keyed to construction completed if the cost and scope of making
which ‘‘begins’’ after January 25, 1992. The them accessible is disproportionate.
regulation defines ‘‘begin’’ to mean when a Third, the requirement goes into effect for
notice to proceed order has been issued. This alterations begun after January 25, 1992.
term has a standard meaning in the con- Fourth, the term ‘‘maximum extent fea-
struction industry, as an instruction to the sible’’ means that all changes that are pos-
contractor to proceed with the work. sible must be made. The requirement to
Questions have been raised concerning make changes to the maximum extent fea-
which standards apply before January 26, sible derives from clear legislative history.
1992. There are Federal requirements that The Senate Report states—
apply to all recipients of federal money, de- The phrase ‘‘to the maximum extent fea-
pending on the circumstances. sible’’ has been included to allow for the oc-
First, if an entity is a Federal recipient casional case in which the nature of an exist-
and uses Federal dollars to construct the fa- ing facility is such as to make it virtually
cility, regulations implementing section 504 impossible to renovate the building in a
of the Rehabilitation Act of 1973 (29 U.S.C. manner that results in its being entirely ac-
794), require the recipient to comply with the cessible to and usable by individuals with
Uniform Federal Accessibility Standards.
disabilities. In all such cases, however, the
Second, since the Civil Rights Restoration
alteration should provide the maximum
Act of 1987 (Pub. L. 100–259), an operation of
amount of physical accessibility feasible.
a recipient of federal funds would also have
Thus, for example the term ‘‘to the max-
to comply with section 504, even though the
activity was not paid for with Federal funds. imum extent feasible’’ should be construed
Thus, the Uniform Federal Accessibility as not requiring entities to make building al-
Standards would apply to this construction terations that have little likelihood of being
as well. accomplished without removing or altering a
As mentioned above, the Department in- load-bearing structural member unless the
tends, in the period before January 26, 1991, load-bearing structural member is otherwise
to view compliance with section 504 in light being removed or altered as part of the alter-
of compliance with ADA requirements (this ation. (S. Rept. 101–116, at 68).
point applies to alterations as well as new Fifth, primary function means a major ac-
construction). Consequently, in reviewing re- tivity for which the facility is intended. Pri-
quests for grants, contract approvals, exemp- mary function areas include waiting areas,
tions, etc., (whether with respect to ongoing ticket purchase and collection areas, train or
projects or new, experimental, or one-time bus platforms, baggage checking and return
efforts), the Department will, as a policy areas, and employment areas (with some ex-
matter, seek to ensure compliance with ADA ceptions stated in the rule, for areas used by
standards. service personnel that are very difficult to
access).
Section 37.43 Alteration of Transportation Sixth, ‘‘path of travel’’ means a contin-
Facilities by Public Entities uous, unobstructed way of pedestrian pas-
This section sets out the accessibility re- sage by means of which the altered area may
quirements that apply when a public entity be approached, entered, and exited, and
undertakes an alteration of an existing facil- which connects the altered area with an ex-
ity. In general, the section requires that any terior approach and includes restrooms, tele-
alteration, to the maximum extent feasible, phones, and drinking fountains serving the
results in the altered area being accessible to altered area. If changes to the path of travel
and usable by individuals with disabilities, are disproportionate, then only those
including persons who use wheelchairs. The changes which are not disproportionate are
provisions follow closely those adopted by to be completed.
the DOJ, in its regulations implementing Seven, the final rule specifies that costs
title III of the ADA. exceeding 20 percent would be dispropor-
The section requires specific activities tionate. This is consistent with the DOJ. In
whenever an alteration of an existing facil- determining costs, the Department intends
ity is undertaken. costs to be based on changes to the passenger
First, if the alteration is made to a pri- service area that is scheduled for alteration.
mary function area, (or access to an area Finally, the Department has defined the
containing a primary function), the entity term ‘‘begin’’, in the context of begin an al-
shall make the alteration in such a way as to teration that is subject to the alteration pro-
ensure that the path of travel to the altered vision to mean when a notice to proceed or
area and the restrooms, telephones and work order is issued. Two terms are used (in-
drinking fountains servicing the altered area stead of only notice to proceed in the con-
are readily accessible to and usable by indi- text of new construction) because many al-
viduals with disabilities, including individ- terations may be carried out by the entity
uals who use wheelchairs. itself, in which case the only triggering
470
event would be a work order or similar au- volve long-term capital investment and plan-
thorization to begin. ning, while passenger boarding percentages
In looking at facility concepts like are more volatile. Some railroads may stop
‘‘disproportionality’’ and ‘‘to the maximum serving a station, while others may begin
extent feasible,’’ the Department will con- service, during the period of time before
sider any expenses related to accessibility modifications to the station are complete.
for passengers. It is not relevant to consider To help accommodate such situations, the
non-passenger related improvements (e.g., rule refers to passenger boardings ‘‘over the
installing a new track bed) or to permit entire period during which the station is
‘‘gold-plating’’ (attributing to accessibility made accessible.’’
costs the expense of non-related improve- This language is intended to emphasize
ments, such as charging to accessibility that as circumstances change, the parties in-
costs the price of a whole new door, when volved have the responsibility to adjust their
only adding a new handle to the old door was arrangements for cost sharing. For example,
needed for accessibility). suppose Railroad A has 30 percent of the pas-
senger boardings in year 1, but by year 10 has
Section 37.47 Key Stations in Light and Rapid 60 percent of the boardings. It would not be
Rail Systems fair for Railroad A to pay only 30 percent of
Section 37.49 Designation of Responsible Per- the costs of station modifications occurring
son(s) for Intercity and Commuter Rail Sta- in later years. Ultimately, the total cost
tions burden for modifying the station over (for
example) 20 years would be allocated on the
This section sets forth a mechanism for de- share of the total number or boardings at-
termining who bears the legal and financial tributable to each railroad over the whole 20
responsibility for accessibility modifications year period, in order to avoid such unfair-
to a commuter and/or intercity rail station. ness.
The final provision of the section is the most The third, and most complicated, situation
important. It authorizes all concerned par- is one in which no party owns 50 percent of
ties to come to their own agreement con- the station. For example, consider the fol-
cerning the allocation of responsibility. lowing hypothetical situation:
Such an agreement can allocate responsi-
bility in any way acceptable to the parties. Party Ownership Boardings
The Department strongly encourages parties percentage percentage
to come to such an agreement. Private freight RR ...................... 40 0
In the absence of such an agreement, a City ............................................ 30 0
statutory/regulatory scheme allocates re- Amtrak ....................................... 0 25
sponsibility. In the first, and simplest, situa- Commuter A .............................. 30 50
tion posed by the statute, a single public en- Commuter B .............................. 0 25
tity owns more than 50 percent of the sta-
tion. In this case, the public entity is the re- The private freight railroad drops out of the
sponsible person and nobody else is required calculation of who is responsible. All of the
to bear any of the responsibility. responsibility would be allocated among four
In the second situation, a private entity public entities: the city (a public entity who
owns more than 50 percent of the station. does not operate railroad service), Amtrak,
The private entity need not bear any of the and the two commuter railroads. Half the re-
responsibility for making the station acces- sponsibility would go to public entity owners
sible. A public entity owner of the station, of the station (whether or not they are rail-
who does not operate passenger railroad roads who run passenger service through the
service through the station, is not required station). The other half of the responsibility
to bear any of the responsibility for making would go to railroads who run passenger
the station accessible. The total responsi- service through the station (whether or not
bility is divided between passenger railroads they are station owners).
operating service through the station, on the On the ownership side of the equation, the
basis of respective passenger boardings. If city and Commuter A each own half of that
there is only one railroad operating service portion of the station that is not owned by
through the station, it bears the total re- the private freight railroad. Therefore, the
sponsibility. two parties divide up the ownership half of
The Department believes that reference to the responsibility equally. Based on their
passenger boardings is the most equitable ownership interest, each of these two parties
way of dividing responsibility among rail- bears 25 percent of the responsibility for the
roads, since the number of people drawn to entire station. Note that, should ownership
the station by each is likely to reflect ‘‘cost percentages or owners change over the pe-
causation’’ quite closely. The Department riod during which the station is to be made
notes, however, that, as passenger boarding accessible, these percentages may change. It
percentages change over time, the portion of is ownership percentage over this entire pe-
responsibility assigned to each party also riod that ultimately determines the percent-
may change. Station modifications may in- age of responsibility.
471
On the passenger rail operations side of the tight, legalistic definition is not necessary
equation, 50 percent of passenger boardings in the context of factors intended for consid-
are attributable to Commuter A and 25 per- eration. For instance, what constitutes a
cent each to Commuter B and Amtrak. major activity center or how close a station
Therefore, half of this portion of the respon- needs to be to another station to not be des-
sibility belongs to Commuter A, while a ignated as key depend largely on local fac-
quarter share each goes to the other rail- tors that it would not be reasonable to speci-
roads. This means that, based on passenger fy in this rule.
boardings, 25 percent of the responsibility Given the wide discretion permitted to rail
goes to Commuter A, 12.5 percent to Com- operators in identifying key stations, there
muter B, and 12.5 percent to Amtrak. Again, would be no objection to identifying as a key
it is the proportion of passenger boardings station a new (presumably accessible) sta-
over the entire length of the period during tion now under construction. Doing so would
which the station is made accessible that ul- involve consideration of the key station cri-
timately determines the percentage of re- teria and would be subject to the planning/
sponsibility. public participation process.
In this hypothetical, Commuter A is re- If an extension to a rail system (e.g., a
sponsible for a total of 50 percent of the re- commuter system) is made, such that the
sponsibility for the station. Commuter A is system comes to include existing inacces-
responsible for 25 percent of the responsi- sible stations that have not previously been
bility because of its role as a station owner part of the system, the Department con-
and another 25 percent because of its oper- strues the ADA to require application of key
ation of passenger rail service through the station accessibility in such a situation. The
station.
same would be true for a new start com-
The Department recognizes that there will
muter rail system that began operations
be situations in which application of this
using existing stations. Key station plan-
scheme will be difficult (e.g., involving prob-
ning, designation of key stations, and with
lems with multiple owners of a station whose
being consistent with the ADA would be re-
ownership percentages may be difficult to
quired. The Department would work with the
ascertain). The Department again empha-
commuter authority involved on a case-by-
sizes that agreement among the parties is
case basis to determine applicable time lim-
the best way of resolving these problems, but
we are willing to work with the parties to its for accessibility, consistent with the time
ensure a solution consistent with this rule. frames of the ADA.
The entity must develop a compliance
Section 37.51 Key Stations in Commuter Rail plan, subject to the public participation and
Systems planning process set forth in paragraph (d) of
each of these sections. Note that this plan
These sections require that key stations in
must be completed by July 26, 1992, not Jan-
light, rapid, and commuter rail systems be
uary 26, 1992, as in the case of paratransit
made accessible as soon as practicable, but
plans. The key station plans must be sub-
no later than July 26, 1993. Being made ac-
mitted to FTA at that time. (The statute
cessible, for this purpose, means complying
does not require FTA approval of the plans,
with the applicable provisions of appendix A
however.).
to this part. ‘‘As soon as practicable’’ means
that, if modification can be made before July A rail operator may request an extension
26, 1993, they must be. A rail operator that of the July 1993 completion deadline for ac-
failed to make a station accessible by July cessibility modifications to one or more key
1993 would be in noncompliance with the stations. The extension for light and rapid
ADA and this rule, except in a case where an rail stations can be up to July 2020, though
extension of time had been granted. two thirds of the key stations (per the legis-
What is a key station? A key station is one lative history of the statute, selected in a
designated as such by the commuter author- way to maximize accessibility to the whole
ity or light/rapid rail operator, through the system) must be accessible by July 2010.
planning process and public participation Commuter rail stations can be extended up
process set forth in this section. The five cri- to July 2010.
teria listed in the regulation are intended to Requests for extension of time must be
guide the selection process but, while the en- submitted by July 26, 1992. FTA will review
tity must take these criteria into account the requests on a station-by-station basis ac-
(and this consideration must be reflected in cording to the statutory criterion, which is
the planning process and documents), they whether making the station accessible re-
are not mandatory selection standards. That quires extraordinarily expensive alterations.
is, it is not required that every station that An extraordinarily expensive alteration is
meets one of the criteria be designated as a raising the entire platform, installing an ele-
key station. Since the criteria are not man- vator, or making another alteration of simi-
datory selection standards, the under- lar cost and magnitude. If another means of
standing of their terms is also a matter ap- making a station accessible (e.g., installa-
propriately left to the planning process. A tion of a mini-high platform in a station
472
where it is not necessary to install an eleva- accessibility alterations which have already
tor or to provide access to the platform for been made, or which are begun before Janu-
wheelchair users), then an extension can be ary 26, 1992, and which conform to specified
granted only if the rail operator shows that prior standards, do not have to be re-modi-
the cost and magnitude of the alteration is fied. On the other hand, alterations begun
similar to that of an elevator installation or after January 25, 1992 (including forthcoming
platform raising. key station modifications under the New
The rule does not include a specific dead- York and Philadelphia agreements), must
line for FTA consideration of an extension meet the requirements of appendix A to this
request. However, since we are aware that, in part.
the absence of an extension request, accessi- This is an exception only for the two speci-
bility must be completed by July 1993, we fied agreements. There are no situations in
will endeavor to complete review of plans as which other cities can take advantage of this
soon as possible, to give as much lead time provision. Nor are the provisions of the two
as possible to local planning and implemen- agreements normative for other cities. Other
tation efforts. cities must do their own planning, with in-
Once an extension is granted, the exten- volvement from local citizens, and cannot
sion applies to all accessibility modifications rely on agreements unique to New York and
in the station. However, the rail operator Philadelphia to determine the appropriate
should not delay non-extraordinarily expen- number of percentage of key stations or
sive modifications to the station. The key other matters.
station plan and any extension request
should include a schedule for phasing in non- Section 37.57 Required Cooperation
extraordinarily expensive modifications to This section implements § 242(e)(2)(C) of
the station. For example, even if a key sta- the ADA, which treats as discrimination a
tion is not going to be accessible to wheel- failure, by an owner or person in control of
chair users for 15 years, pending the installa- an intercity rail station, to provide reason-
tion of an elevator, the rail operator can im- able cooperation to the responsible persons’
prove its accessibility to persons with visual efforts to comply with accessibility require-
impairments by installing tactile strips. ments. For example, the imposition by the
An extension cannot be granted except for owner of an unreasonable insurance bond
a particular station which needs an extraor- from the responsible person as a condition of
dinarily expensive modification. An exten- making accessibility modifications would
sion cannot be granted non-extraordinarily violate this requirement. See H. Rept. 101–485
expensive changes to Station B because the at 53.
extraordinarily expensive changes to Station The statute also provides that failure of
A will absorb many resources. Non-extraor- the owner or person in control to cooperate
dinarily expensive changes, however costly does not create a defense to a discrimination
considered collectively for a system, are not, suit against the responsible person, but the
under the statute, grounds for granting an responsible person would have a third party
extension to one or more stations or the action against the uncooperative owner or
whole system. Only particular stations person in control. The rule does not restate
where an extraordinarily expensive modifica- this portion of the statute in the regulation,
tion must be made qualify for extensions. since it would be implemented by the courts
The FTA Administrator can approve, mod- if such an action is brought. Since coopera-
ify, or disapprove any request for an exten- tion is also a regulatory requirement, how-
sion. For example, it is not a forgone conclu- ever, the Department could entertain a sec-
sion that a situation for which an extension tion 504 complaint against a recipient of Fed-
is granted will have the maximum possible eral funds who failed to cooperate.
extension granted. If it appears that the rail The House Energy and Commerce Com-
operator can make some stations accessible mittee provided as an example of an action
sooner, FTA can grant an extension for a under this provision a situation in which a
shorter period (e.g., 2005 for a particular sta- failure to cooperate leads to a construction
tion rather than 2010). delay, which in turn leads to a lawsuit by an
individual with disabilities against the re-
Section 37.53 Exception for New York and
sponsible person for missing an accessibility
Philadelphia
deadline. The responsible person could not
Consistent with the legislative history of use the lack of cooperation as a defense in
the ADA, this section formally recognizes the lawsuit, but the uncooperative party
the selection of key stations in two identi- could be made to indemnify the responsible
fied litigation settlement agreements in New person for damages awarded the plaintiff.
York and Philadelphia as in compliance with Also, a responsible person could obtain an in-
the ADA. Consequently, the entities involved junction to force the recalcitrant owner or
can limit their key station planning process controller of the station to permit accessi-
to issues concerning the timing of key sta- bility work to proceed. (Id.)
tion accessibility. The section references This provision does not appear to be in-
also § 37.9, which provides that key station tended to permit a responsible person to seek
473
contribution for a portion of the cost of ac- communication display devices (TDDs) or
cessibility work from a party involved with text telephones, and other accommodations
the station whom the statute and § 37.49 do for use by persons with speech and hearing
not identify as a responsible person. It sim- impairments, signage for people with visual
ply provides a remedy for a situation in impairments, continuous pathways for per-
which someone impedes the responsible persons with visual and ambulatory impair-
son’s efforts to comply with accessibility ob- ments, and public address systems and
ligations. clocks.
The Department did not prescribe one list
Section 37.59 Differences in Accessibility of things that would be appropriate for all
Completion Date Requirements stations. For example, we believe that tac-
Portions of the same station may have dif- tile strips are a valuable addition to plat-
ferent accessibility completion date require- forms which have drop-offs. We also believe
ments, both as the result of different statu- that most larger systems, to the extent they
tory time frames for different kinds of sta- publish schedules, should make those sched-
tions and individual decisions made on re- ules readily available in alternative formats.
quests for extension. The principle at work We encourage entities to find this another
in responding to such situations is that if area which benefits from its commitment to
part of a station may be made accessible far-reaching public participation efforts.
after another part, the ‘‘late’’ part of the SUBPART D—ACQUISITION OF ACCESSIBLE
work should not get in the way of people’s VEHICLES BY PUBLIC ENTITIES
use of modifications resulting from the
‘‘early’’ part. Section 37.71 Purchase or Lease of New Non-
For example, the commuter part of a sta- Rail Vehicles by Public Entities Operating
tion may have to be made accessible by July Fixed Route Systems
1993 (e.g., there is no need to install an eleva-
This section sets out the basic acquisition
tor, and platform accessibility can be
requirements for a public entity purchasing
achieved by use of a relatively inexpensive
a new vehicle. Generally, the section re-
mini-high platform). The Amtrak portion of quires any public entity who purchases or
the same station, by statute, is required to leases a new vehicle to acquire an accessible
be accessible as soon as practicable, but no vehicle. There is a waiver provision if lifts
later than July 2010. If there is a common en- are unavailable and these provisions track
trance to the station, that commuter rail the conditions in the ADA. One statutory
passengers and Amtrak passengers both use, condition, that the public entity has made a
or a common ticket counter, it would have good faith effort to locate a qualified manu-
to be accessible by July 1993. If there were a facturer to supply the lifts, presumes a di-
waiting room used by Amtrak passengers but rect relationship between the transit pro-
not commuter passengers (who typically vider and the lift manufacturer. In fact, it is
stand and wait on the platform at this sta- the bus manufacturer, rather than the tran-
tion), it would not have to be accessible by sit provider directly, who would have the
July 1993, but if the path from the common task of looking for a supplier of lifts to meet
entrance to the commuter platform went the transit provider’s specifications. The
through the waiting room, the path would task must still be performed, but the regula-
have to be an accessible path by July 1993. tion does not require the transit provider to
obtain actual information about available
Section 37.61 Public Transportation Programs
lifts. Rather the bus manufacturer obtains
and Activities in Existing Facilities
the information and provides this assurance
This section implements section 228(a) of to the entity applying for the waiver, and
the ADA and establishes the general require- the entity may rely on this representation.
ment for entities to operate their transpor- More specifically, the regulation requires
tation facilities in a manner that, when that each waiver request must include a
viewed in its entirety, is accessible to and copy of the written solicitation (showing
usable by individuals with disabilities. The that it requested lift-equipped vehicles) and
section clearly excludes from this require- written responses from lift manufacturers to
ment access by persons in wheelchairs, un- the vehicle manufacturer documenting their
less these changes would be necessitated by inability to provide the lifts. The informa-
the alterations or key station provisions. tion from the lift manufacturer must also in-
This provision is intended to cover activi- clude when the lifts will be available.
ties and programs of an entity that do not In addition, the waiver request must in-
rise to the level of alteration. Even if an en- clude copies of advertisements in trade pub-
tity is not making alterations to a facility, lications and inquiries to trade associations
it has a responsibility to conduct its pro- seeking lifts for the buses. The public entity
gram in an accessible manner. Examples of also must include a full justification for the
possible activities include user friendly assertion that a delay in the bus procure-
farecards, schedules, of edge detection on ment sufficient to obtain a lift-equipped bus
rail platforms, adequate lighting, tele- would significantly impair transportation
474
services in the community. There is no The phrase ‘‘demonstrated good faith ef-
length of time that would be a per se delay forts’’ is intended to require a nationwide
constituting a ‘‘significant impairment’’. It search and not a search limited to a par-
will be more difficult to obtain a waiver if a ticular region. For instance, it would not be
relatively short rather than relatively enough for a transit operator to contact only
lengthy delay is involved. A showing of time- the manufacturer where the transit author-
tables, absent a showing of significant im- ity usually does business to see if there are
pairment of actual transit services, would accessible used buses. It involves the transit
not form a basis for granting a waiver. authority advertising in a trade magazine,
Any waiver granted by the Department i.e., Passenger Transport, or contacting the
under this provision will be a conditional transit trade association, American Public
waiver. The conditions are intended to en- Transit Association (APTA), to determine
sure that the waiver provision does not cre- whether accessible used vehicles are avail-
ate a loophole in the accessible vehicle ac- able. It is the Committee’s expectation that
quisition requirement that Congress in- as the number of buses with lifts increases,
tended to impose. The ADA requires a waiver the burden on the transit authority to dem-
to be limited in duration and the rule re- onstrate its inability to purchase accessible
quires a termination date to be included. The vehicles despite good faith efforts will be-
date will be established on the basis of the come more and more difficult to satisfy. S.
information the Department receives con- Rept. 101–116 at 49; H. Rept. 101–485 at 90.
cerning the availability of lifts in the waiver Consistent with this guidance, this section
request and elsewhere. In addition, so that a requires that good faith efforts include speci-
waiver does not become open-ended, it will fying accessible vehicles in bid solicitations.
apply only to a particular procurement. If a The section also requires that the entity re-
transit agency wants a waiver for a subse- tain for two years documentation of that ef-
quent delivery of buses in the procurement, fort, and that the information be available
or another procurement entirely, it will have to FTA and the public.
to make a separate waiver request.
It does not meet the good faith efforts re-
For example, if a particular order of buses
quirement to purchase inaccessible, rather
is delivered over a period of time, each deliv-
than accessible, used buses, just because the
ery would be the potential subject of a waiv-
former are less expensive, particularly if the
er request. First, the entity would request a
waiver for the first shipment of buses. If all difference is a difference attributable to the
of the conditions are met, the waiver would presence of a lift. There may be situations in
be granted, with a date specified to coincide which good faith efforts involve buying fewer
with the due date of the lifts. When the lifts accessible buses in preference to more inac-
become available those buses would have to cessible buses.
be retrofitted with the lifts. A subsequent The public participation requirements in-
delivery of buses—on the same order—would volved in the development of the paratransit
have to receive its own waiver, subject to the plans for all fixed route operators requires
same conditions and specifications of the an ongoing relationship, including extensive
first waiver. outreach, to the community likely to be
The purpose of the waiver, as the Depart- using its accessible service. We believe that
ment construes it, is to address a situation it will be difficult to comply with the public
in which (because of a sudden increase in the participation requirements and not involve
number of lift-equipped buses requested) lift the affected community in the decisions con-
manufacturers are unable to produce enough cerning the purchase or lease of used acces-
lifts to meet the demand in a timely fashion. sible vehicles.
There is an exception to these require-
Section 37.73 Purchase or Lease of Used Non- ments for donated vehicles. Not all ‘‘zero
Rail Vehicles by Public Entities Operating a dollar’’ transfers are donations, however.
Fixed Route System The legislative history to this provision pro-
The basic rule is that an acquisition of a vides insight.
used vehicle would have to be for an acces- It is not the Committee’s intent to make
sible vehicle. the vehicle accessibility provisions of this
There is an exception, however, for situa- title applicable to vehicles donated to a pub-
tions in which the transit provider makes a lic entity. The Committee understands that
good faith effort to obtain accessible used it is not usual to donate vehicles to a public
vehicles but does not succeed in finding entity. However, there could be instances
them. The ADA requires transit agencies to where someone could conceivably donate a
purchase accessible used vehicles, providing bus to a public transit operator in a will. In
a ‘‘demonstrated good faith efforts’’ excep- such a case, the transit operators should not
tion to the requirement. The reports of the be prevented from accepting a gift.
Senate Committee on Labor and Human Re- The Committee does not intend that this
sources and the House Committee on Edu- limited exemption for donated vehicles be
cation and Labor offered the following guid- used to circumvent the intent of the ADA.
ance on what ‘‘good faith efforts’’ involve: For example, a local transit authority could
475
not arrange to be the recipient of donated in- that would alter the historic character of the
accessible buses. This would be a violation of vehicle. All modifications that can be made
the ADA. S. Rpt. 101–116, at 46; H. Rpt. 101– without altering the historic character (such
486, at 87. as slip resistant flooring) must be done.
Entities interested in accepting donated
vehicles must submit a request to FTA to Section 37.77 Purchase or Lease of New Non-
verify that the transaction is a donation. Rail Vehicles by Public Entities Operating a
There is one situation, in which a vehicle Demand Responsive System for the General
has prior use is not treated as a used vehicle. Public
If a vehicle has been remanufactured, and it Section 224 of the ADA requires that a pub-
is within the period of the extension of its lic entity operating a demand responsive sys-
useful life, it is not viewed as a used vehicle tem purchase or lease accessible new vehi-
(see H. Rept. 101–485, Pt 1 at 27). During this cles, for which a solicitation is made after
period, such a vehicle may be acquired by an- August 25, 1990, unless the system, when
other entity without going through the good viewed in its entirety, provides a level of
faith efforts process. This is because, at the service to individuals with disabilities, in-
time of its remanufacture, the bus would cluding individuals who use wheelchairs,
have been made as accessible if feasible. equivalent to the level of service provided to
When the vehicle has completed its extended individuals without disabilities. This section
useful life (e.g., the beginning of year six is the same as the October 4, 1990 final rule
when its useful life has extended five years), which promulgated the immediately effec-
it becomes subject to used bus requirements. tive acquisition requirements of the ADA.
The Department has been asked to clarify
Section 37.75 Remanufacture of Non-Rail Vehi-
what ‘‘accessible when viewed in its en-
cles and Purchase or Lease of Remanufac-
tirety’’ means in the context of a demand re-
tured Non-rail Vehicles by Public Entities Op-
sponsive system being allowed to purchase
erating Fixed Route Systems
an inaccessible vehicle. First, it is important
This section tracks the statute closely, to note that this exception applies only to
and contains the following provisions. First, demand responsive systems (and not fixed
it requires any public entity operating a route systems). The term ‘‘equivalent serv-
fixed route system to purchase an accessible ice’’ was discussed during the passage of the
vehicle if the acquisition occurs after August ADA. Material from the legislative history
25, 1990, if the vehicle is remanufactured indicates that ‘‘when viewed in its entirety/
after August 25, 1990, or the entity contracts equivalent service’’ means that ‘‘when all as-
or undertakes the remanufacture of a vehicle pects of a transportation system are ana-
after August 25, 1990. The ADA legislative lyzed, equal opportunities for each indi-
history makes it clear that remanufacture is vidual with a disability to use the transpor-
to include changes to the structure of the ve- tation system must exist. (H. Rept. 101–184,
hicle which extend the useful life of the vehi- Pt. 2, at 95; S. Rept. 101–116 at 54). For exam-
cle for five years. It clearly is not intended ple, both reports said that ‘‘the time delay
to capture things such as engine overhauls between a phone call to access the demand
and the like. responsive system and pick up the individual
The term remanufacture, as used in the is not greater because the individual needs a
ADA context, is different from the use of the lift or ramp or other accommodation to ac-
term in previously issued FTA guidance. The cess the vehicle.’’ (Id.)
term has a specific meaning under the ADA: Consistent with this, the Department has
there must be structural work done to the specified certain service criteria that are to
vehicle and the work must extend the vehi- be used when determining if the service is
cle’s useful life by five years. equivalent. As in previous rulemakings on
The ADA imposes no requirements on what this provision, the standards (which include
FTA traditionally considers bus rehabilita- service area, response time, fares, hours and
tion. Such work involves rebuilding a bus to days of service, trip purpose restrictions, in-
original specifications and focuses on me- formation and reservations capability, and
chanical systems and interiors. Often this other capacity constraints) are not absolute
work includes replacing components. It is standards. They do not say, for example,
less extensive than remanufacture. that a person with a disability must be
The statute, and the rule, includes an ex- picked up in a specified number of hours. The
ception for the remanufacture of historical requirement is that there must be equivalent
vehicles. This exception applies to the re- service for all passengers, whether or not
manufacture of or purchase of a remanufac- they have a disability. If the system provides
tured vehicle that (1) is of historic character; service to persons without disabilities within
(2) operates solely on a segment of a fixed four hours of a call for service, then pas-
route system which is on the National Reg- sengers with disabilities must be afforded
ister of Historic Places; and (3) making the the same service.
vehicle accessible would significantly alter The Department has been asked specifi-
the historic character of the vehicle. The ex- cally where an entity should send its
ception only extends to the remanufacture ‘‘equivalent level of service’’ certifications.
476
We provide the following: Equivalent level of Section 37.85 Purchase or Lease of New
service certifications should be submitted to Intercity and Commuter Rail Cars
the state program office if you are a public
This section incorporates the statutory re-
entity receiving FTA funds through the quirement that new intercity and commuter
state. All other entities should submit their rail cars be accessible. The specific accessi-
equivalent level of service certifications to bility provisions of the statute (for example,
the FTA regional office (listed in appendix B there are slightly different requirements for
of this part). Certifications must be sub- intercity rail cars versus commuter rail
mitted before the acquisition of the vehicles. cars) are specified in part 38 of this regula-
Paragraph (e) of this section authorizes a tion. These standards are adopted from the
waiver for the unavailability of lifts. Since voluntary guidelines issues by the Access
demand responsive systems need not pur- Board. The section basically parallels the ac-
chase accessible vehicles if they can certify quisition requirements for buses and other
equivalent service, the Department has been vehicles. It should be noted that the defini-
asked what this provision is doing in this tion of commuter rail operator clearly al-
section. lows for additional operators to qualify as
Paragraph (e) applies in the case in which commuter, since the definition describes the
an entity operates a demand responsive sys- functional characteristics of an operator, as
tem, which is not equivalent, and the entity well as listing existing commuter rail opera-
tors.
cannot find accessible vehicles to acquire. In
We would point out that the ADA applies
this case, the waiver provisions applicable to
this requirement to all new vehicles. This in-
a fixed route entity purchasing or leasing in-
cludes not only vehicles and systems that
accessible new vehicles applies to the de- currently are being operated in the U.S., but
mand responsive operator as well. new, experimental, or imported vehicles and
systems. The ADA does not stand in the way
Section 37.79 Purchase or Lease of New Rail
of new technology, but it does require that
Vehicles by Public Entities Operating Rapid
new technology, and the benefits it brings,
or Light Rail Systems be accessible to all persons, including those
This section echoes the requirement of with disabilities. This point applies to all ve-
§ 37.71—all new rail cars must be accessible. hicle acquisition provisions of this regula-
tion, whether for rail or non-rail, private or
Section 37.81 Purchase or Lease of Used Rail public, fixed route or demand responsive ve-
Vehicles by Public Entities Operating Rapid hicles and systems.
or Light Rail Systems
Section 37.87 Purchase or Lease of Used
This section lays out the requirements for Intercity and Commuter Rail Cars
a public entity acquiring a used rail vehicle.
The section also parallels closely the re-
The requirements and standards are the
quirements in the ADA for the purchase or
same as those specified for non-rail vehicles
lease of accessible used rail vehicles. We ac-
in § 37.73. While we recognize it may create knowledge that, in some situations, the stat-
difficulties for entities in some situations, utory requirement for to make good faith ef-
the statute does not include any extension or forts to acquire accessible used vehicles may
short-term leases. The Department will con- create difficulties for rail operators attempt-
sider, in a case-by-case basis, how the good ing to lease rail cars quickly for a short time
faith efforts requirement would apply in the (e.g., as fill-ins for cars which need repairs).
case of an agreement between rail carriers to In some cases, it may be possible to mitigate
permit quick-response, short-term leases of these difficulties through means such as
cars over a period of time. making good faith efforts with respect to an
overall agreement between two rail opera-
Section 37.83 Remanufacture of Rail Vehicles tors to make cars available to one another
and Purchase or Lease of Remanufactured when needed, rather than each time a car is
Rail Vehicles by Public Entities Operating provided under such an agreement.
Rapid or Light Rail System
Section 37.89 Remanufacture of Intercity and
This section parallels the remanufacturing Commuter Rail Cars
section for buses, including the exception for
historical vehicles. With respect to an entity This section requires generally that re-
having a class of historic vehicles that may manufactured cars be made accessible, to the
meet the standards for the historic vehicle maximum extent feasible. Feasible is defined
in paragraph (c) of the section to be ‘‘unless
exception (e.g., San Francisco cable cars),
an engineering analysis demonstrates that
the Department would not object to a re-
remanufacturing the car to be accessible
quest for application of the exception on a would have a significant adverse effect on
system-wide, as approved to car-by-car, the structural integrity of the car.’’ In-
basis. creased cost is not a reason for viewing other
477
sections of this subpart concerning remanu- SUBPART E—ACQUISITION OF ACCESSIBLE
factured vehicles. VEHICLES BY PRIVATE ENTITIES
In addition, this section differs from the
counterpart sections for non-rail vehicles Section 37.101 Purchase or Lease of Non-Rail
Vehicles by Private Entities Not Primarily En-
and light and rapid rail vehicles in two ways.
gaged in the Business of Transporting Peo-
First, the extension of useful life needed to
ple
trigger the section is ten rather than five
years. Second, there is no historic vehicle ex- Section 37.103 Purchase or Lease of New Non-
ception. Both of these differences are statu- Rail Vehicles by Private Entities Primarily
tory. Engaged in the Business of Transporting Peo-
Remanufacture of vehicles implies work ple
that extends their expected useful life of the
vehicle. A mid-life overhaul, not extending Section 37.105 Equivalent Service Standard
the total useful life of the vehicle, would not The first two sections spell out the distinc-
be viewed as a remanufacture of the vehicle. tions among the different types of service
elaborated in the ADA and requirements
Section 37.93 One Car Per Train Rule that apply to them. For clarity, we provide
This section implements the statutory di- the following chart.
rective that all rail operators (light, rapid,
commuter and intercity) have at least one PRIVATE ENTITIES ‘‘NOT PRIMARILY ENGAGED’’
car per train accessible to persons with dis- System type Vehicle capacity Requirement
abilities, including individuals who use
wheelchairs by July 26, 1995. (See ADA sec- Fixed Route .......... Over 16 ................ Acquire accessible
tions 242(a)(1), 242(b)(1), 228(b)(1).) Section vehicle.
37.93 contains this general requirement. In Fixed Route .......... 16 or less ............. Acquire accessible
vehicle, or
some cases, entities will meet the one-car- equivalency.
per train rule through the purchase of new Demand Respon- Over 16 ................ Acquire accessible
cars. In this case, since all new rail vehicles sive. vehicle, or
have to be accessible, compliance with this equivalency.
provision is straightforward. Demand Respon- 16 or less ............. Equivalency—see
sive. § 37.171.
However, certain entities may not be pur-
chasing any new vehicles by July 26, 1995, or
may not be purchasing enough vehicles to PRIVATE ENTITIES ‘‘PRIMARILY ENGAGED’’
ensure that one car per train is accessible. In
these cases, these entities will have to ret- Vehicle type/ca-
System type Requirement
pacity
rofit existing cars to meet this requirement.
What a retrofitted car must look like to Fixed route ........... All new vehicles Acquire accessible
meet the requirement has been decided by except auto, van vehicle.
the Access Board. These standards are con- with less than 8
tained in part 38 of this rule. capacity, or over
the road bus.
We would point that, consistent with the Demand respon- Same as above .... Acquire accessible
Access Board standards, a rail system using sive. vehicle, or
mini-high platforms or wayside lifts is not equivalency.
required, in most circumstances, to ‘‘double- Either fixed route New vans with a Same as above.
stop’’ in order to give passengers a chance to or demand re- capacity of less
sponsive. than 8.
board the second or subsequent car in a train
at the mini-high platform or way-side lift.
The only exception to this would be a situa- Equivalency, for purposes of these require-
ments, is spelled out in § 37.105. It is impor-
tion in which all the wheelchair positions
tant to note that some portions of this sec-
spaces in the first car were occupied. In this
tion (referring to response time, reservations
case, the train would have to double-stop to
capacity, and restrictions on trip purpose)
allow a wheelchair user to board, rather than
apply only to demand responsive systems.
passing the person by when there was space
Another provision (schedules/headways) ap-
available in other than the first car.
plies only to fixed route systems. This is be-
Section 37.95 Ferries and Other Passenger cause these points of comparison apply only
Vessels to one or the other type system. The remain-
ing provisions apply to both kinds of sys-
Although at this time there are no specific tems.
requirements for vessels, ferries and other In applying the provisions this section, it
passenger vessels operated by public entities is important to note that they are only
are subject to the requirements of § 37.5 of points of comparison, not substantive cri-
this part and applicable requirements of 28 teria. For example, unlike the response time
CFR part 35, the DOJ rule under title II of criterion of § 37.131, this section does not re-
the ADA. quire that a system provide any particular
478
response time. All it says is that, in order for van service to an airline’s main business is
there to be equivalency, if the demand re- analogous to that of a shuttle to a hotel. For
sponsive system gets a van to a non-disabled this purpose, it is of only incidental interest
person in 2 hours, or 8 hours, or a week and that the main business of the airline is fly-
a half after a call for service, the system ing people around the country instead of put-
must get an accessible van to a person with ting them up for the night.
a disability in 2 hours, or 8 hours, or a week
and a half. Section 37.109 Ferries and Other Passenger
The vehicle acquisition and equivalency Vessels
provisions work together in the following Although at this time there are no specific
way. A private entity is about to acquire a requirements for vessels, ferries and other
vehicle for a transportation service in one of passenger vessels operated by private enti-
the categories to which equivalency is rel- ties are subject to the requirements of § 37.5
evant. The entity looks at its present service of this part and applicable requirements of 28
(considered without regard to the vehicle it CFR part 36, the DOJ rule under title III of
plans to acquire). Does the present service the ADA.
meet the equivalency standard? (In answer-
ing this question, the point of reference is SUBPART F—PARATRANSIT AS A COMPLEMENT
the next potential customer who needs an TO FIXED ROUTE SERVICE
accessible vehicle. The fact that such per-
sons have not called in the past is irrele- Section 37.121 Requirement for Comparable
vant). If not, the entity is required to ac- Complementary Paratransit Service
quire an accessible vehicle. If so, the entity This section sets forth the basic require-
may acquire an accessible or an inaccessible ment that all public entities who operate a
vehicle. This process must be followed every fixed route system have to provide para-
time the entity purchases or leases a vehicle. transit service that is both comparable and
Given changes in the mixes of both cus- complementary to the fixed route service. By
tomers and vehicles, the answer to the ques- ‘‘complementary,’’ we mean service that acts
tion about equivalency will probably not be as a ‘‘safety net’’ for individuals with dis-
the same for an entity every time it is asked. abilities who cannot use the fixed route sys-
One difference between the requirements tem. By ‘‘comparable,’’ we mean service that
for ‘‘private, not primarily’’ and ‘‘private, meets the service criteria of this subpart.
primarily’’ entities is that the requirements This requirement applies to light and rapid
apply to all vehicles purchased or leased for rail systems as well as to bus systems, even
the former, but only to new vehicles for the when rail and bus systems share all or part
latter. This means that entities in the latter of the same service area. Commuter bus,
category are not required to acquire acces- commuter rail and intercity rail systems do
sible vehicles when they purchase or lease not have to provide paratransit, however.
used vehicles. Another oddity in the statute The remaining provisions of subpart F set
which entities should note is that the re- forth the details of the eligibility require-
quirement for ‘‘private, primarily’’ entities ments for paratransit, the service criteria
to acquire accessible vans with less than that paratransit systems must meet, the
eight passenger capacity (or provide equiva- planning process involved, and the proce-
lent service) does not become effective until dures for applying for waivers based on
after February 25, 1992 (This also date also undue financial burden.
applies no private entities ‘‘primarily en- Paratransit may be provided by a variety
gaged’’ which purchase passenger rail cars). of modes. Publicly operated dial-a-ride vans,
All other vehicle acquisition requirements service contracted out to a private para-
became effective after August 25, 1990. transit provider, user-side subsidy programs,
The Department views the line between or any combination of these and other ap-
‘‘private, primarily’’ and ‘‘private, not pri- proaches is acceptable. Entities who feel it
marily’’ entities as being drawn with respect necessary to apply for an undue financial
to the bus, van, or other service which the burden waiver should be aware that one of
entity is providing. For example, there is an the factors FTA will examine in evaluating
obvious sense in which an airline or car rent- waiver requests is efficiencies the provider
al company is primarily engaged in the busi- could realize in its paratransit service.
ness of transporting people. If the airline or Therefore, it is important for entities in this
car rental agency runs a shuttle bus from the situation to use the most economical and ef-
airport terminal to a downtown location or a ficient methods of providing paratransit
rental car lot, however, the Department they can devise.
views that shuttle service as covered by the It is also important for them to establish
‘‘private, not primarily’’ requirements of the and consistently implement strong controls
rule (see discussion of the Applicability sec- against fraud, waste and abuse in the para-
tions above). This is because the airline or transit system. Fraud, waste and abuse can
car rental agency is not primarily engaged in drain significant resources from a system
the business of providing transportation by and control of these problems is an impor-
bus or van. The relationship of the bus or tant ‘‘efficiency for any paratransit system.
479
It will be difficult for the Department to whose impairment-related condition is an in-
grant an undue financial burden waiver to ability to maneuver a wheelchair through
entities which do not have a good means of snow is not prevented from using fixed route
determining if fraud, waste and abuse are transit when there is no snow on the ground.
problems and adequate methods of com- Someone with a cognitive disability may
bating these problems, where they are found have learned to take the same bus route to
to exist. a supported employment job every day. This
individual is able to navigate the system for
Section 37.123 ADA Paratransit Eligibility— work purposes and therefore would not be el-
Standards igible for paratransit for work trips. But the
General Provisions individual may be unable to get to other des-
tinations on the bus system without getting
This section sets forth the minimum re- lost, and would be eligible for paratransit for
quirements for eligibility for complementary non-work trips. Someone who normally
paratransit service. All fixed route operators drives his own car to a rail system park and
providing complementary paratransit must ride lot may have a specific impairment re-
make service available at least to individ- lated condition preventing him from getting
uals meeting these standards. The ADA does to the station when his car is in the shop. A
not prohibit providing paratransit service to person who can use accessible fixed route
anyone. Entities may provide service to ad- service can go to one destination on an ac-
ditional persons as well. Since only service cessible route; another destination would re-
to ADA eligible persons is required by the quire the use of an inaccessible route. The
rule, however, only the costs of this service individual would be eligible for the latter
can be counted in the context of a request but not the former.
for an undue financial burden waiver. In many cases, though the person is eligi-
When the rule says that ADA paratransit ble for some trips but not others, eligibility
eligibility shall be strictly limited to per- determinations would not have to be made
sons in the eligible categories, then, it is not literally on a trip-by-trip basis. It may often
saying that entities are in any way pre- be possible to establish the conditions on eli-
cluded from serving other people. It is saying gibility as part of the initial eligibility de-
that the persons who must be provided serv- termination process. Someone with a tem-
ice, and counting the costs of providing them perature sensitivity might be granted sea-
service, in context of an undue burden waiv- sonal eligibility. Somebody who is able to
er, are limited to the regulatory categories. navigate the system for work but not non-
TEMPORARY DISABILITIES work trips could have this fact noted in his
or her eligibility documentation. Likewise,
Eligibility may be based on a temporary as someone with a variable condition (e.g., mul-
well as a permanent disability. The indi- tiple sclerosis, HIV disease, need for kidney
vidual must meet one of the three eligibility dialysis) could have their eligibility based on
criteria in any case, but can do so for a lim- the underlying condition, with paratransit
ited period of time. For example, if an indi- need for a particular trip dependent on self-
vidual breaks both legs and is in two casts assessment or a set of medical standards
for several weeks, becomes a wheelchair user (e.g., trip within a certain amount of time
for the duration, and the bus route that after a dialysis session). On the other hand,
would normally take him to work is not ac- persons in the second eligibility category
cessible, the individual could be eligible (people who can use accessible fixed route
under the second eligibility category. In service where it exists) would be given serv-
granting eligibility to such a person, the en- ice on the basis of the particular route they
tity should establish an expiration date for would use for a given trip.
eligibility consistent with the expected end Because entities are not precluded from
of the period disability. providing service beyond that required by
the rule, an entity that believes it is too dif-
TRIP-BY-TRIP ELIGIBILITY
ficult to administer a program of trip-by-trip
A person may be ADA paratransit eligible eligibility is not required to do so. Nothing
for some trips but not others. Eligibility prevents an entity from providing all re-
does not inhere in the individual or his or quested trips to a person whom the ADA re-
her disability, as such, but in meeting the quires to receive service for only some trips.
functional criteria of inability to use the In this case, if the entity intends to request
fixed route system established by the ADA. an undue financial burden waiver, the entity,
This inability is likely to change with dif- as provided in the undue burden provisions of
fering circumstances. this rule, must estimate, by a statistically
For example, someone whose impairment- valid technique, the percentage of its para-
related condition is a severe sensitivity to transit trips that are mandated by the ADA.
temperatures below 20 degrees is not pre- Only that percentage of its total costs will
vented from using fixed route transit when be counted in considering the undue burden
the temperature is 75 degrees. Someone waiver request.
480
CATEGORY 1 ELIGIBILITY time’’ when the individual wants to travel,
The first eligibility category includes, as the provision requires. We recognize that
among others, persons with mental or visual some systems’ operations may not be orga-
impairments who, as a result, cannot ‘‘navi- nized in a way that permits determining
gate the system.’’ This eligibility category whether a given route is accessible, even
includes people who cannot board, ride, or though a route-by-route determination ap-
disembark from an accessible vehicle ‘‘with- pears to be contemplated by the statute. In
out the assistance of another individual.’’ such cases, it may be that category 2 eligi-
This means that, if an individual needs an bility would persist until the entire system
attendant to board, ride, or disembark from was eligible.
an accessible fixed route vehicles (including With respect to a rail system, an indi-
‘‘navigating the system’’), the individual is vidual is eligible under this standard if, on
eligible for paratransit. One implication of the route or line he or she wants to use,
this language is that an individual does not there is not yet one car per train accessible
lose paratransit eligibility based on ‘‘inabil-
or if key stations are not yet accessible. This
ity to navigate the system’’ because the indi-
eligibility remains even if bus systems cov-
vidual chooses to travel with a friend on the
paratransit system (even if the friend could ering the area served by the rail system have
help the person navigate the fixed route sys- become 100 percent accessible. This is nec-
tem). Eligibility in this category is based on essary because people use rail systems for
ability to board, ride, and disembark inde- different kinds of trips than bus systems. It
pendently. would often take much more in the way of
Mobility training (e.g., of persons with time, trouble, and transfers for a person to
mental or visual impairments) may help to go on the buses of one or more transit au-
improve the ability of persons to navigate thorities than to have a direct trip provided
the system or to get to a bus stop. Someone by the rail operator. Since bus route systems
who is successfully mobility trained to use are often designed to feed rail systems rather
the fixed route system for all or some trips than duplicate them, it may often be true
need not be provided paratransit service for that ‘‘you can’t get there from here’’ relying
those trips. The Department encourages en- entirely on bus routes or the paratransit
tities to sponsor such training as a means of service area that parallels them.
assisting individuals to use fixed route rath- If the lift on a vehicle cannot be deployed
er than paratransit. at a particular stop, an individual is eligible
CATEGORY 2 ELIGIBILITY for paratransit under this category with re-
spect to the service to the inaccessible stop.
The second eligibility criterion is the If on otherwise accessible route 1, an indi-
broadest, with respect to persons with mobil- vidual wants to travel from Point A to Point
ity impairments, but its impact should be re-
E, and the lift cannot be deployed at E, the
duced over time as transit systems become
individual is eligible for paratransit for the
more accessible. This category applies to
persons who could use accessible fixed route trip. (On-call bus would not work as a mode
transportation, but accessible transportation of providing this trip, since a bus lift will not
is not being used at the time, and on the deploy at the stop.) This is true even though
route, the persons would travel. This concept service from Point A to all other points on
is route based, not system based. the line is fully accessible. In this cir-
Speaking first of bus systems, if a person is cumstance, the entity should probably think
traveling from Point A to Point B on route seriously about working with the local gov-
1, and route 1 is accessible, the person is not ernment involved to have the stop moved or
eligible for paratransit for the trip. This is made accessible.
true even though other portions of the sys- When we say that a lift cannot be de-
tem are still inaccessible. If the person is ployed, we mean literally that the mecha-
traveling from Point A to Point C on route nism will not work at the location to permit
2, which is not accessible, the person is eligi- a wheelchair user or other person with a dis-
ble for that trip. If the person is traveling ability to disembark or that the lift will be
from Point A to Point B on accessible route damaged if it is used there. It is not con-
1, with a transfer at B to go on inaccessible sistent with the rule for a transit provider to
route 3 to Point D, then the person is eligible
declare a stop off-limits to someone who uses
for the second leg of the trip. (The entity
the lift while allowing other passengers to
could choose to provide a paratransit trip
use the stop. However, if temporary condi-
from A to D or a paratransit or on-call bus
trip from B to D.) tions not under the operator’s control (e.g.,
For purposes of this standard, we view a construction, an accident, a landslide) make
route as accessible when all buses scheduled it so hazardous for anyone to disembark that
on the route are accessible. Otherwise, it is the stop is temporarily out of service for all
unlikely that an accessible vehicle could be passengers may the operator refuse to allow
provided ‘‘within a reasonable period of [a] a passenger to disembark using the lift.
481
CATEGORY 3 ELIGIBILITY condition that requires him to push a wheel-
chair through the snow that prevents the
The third eligibility criterion concerns in-
travel.
dividuals who have a specific impairment-re-
Inevitably, some judgment is required to
lated condition which prevents them from
distinguish between situations in which
getting to or from a stop or station. As noted
travel is prevented and situations in which it
in the legislative history of the ADA, this is
is merely made more difficult. In the Depart-
intended to be a ‘‘very narrow exception’’ to ment’s view, a case of ‘‘prevented travel’’
the general rule that difficulty in traveling can be made not only where travel is lit-
to or from boarding or disembarking loca- erally impossible (e.g., someone cannot find
tions is not a basis for eligibility. the bus stop, someone cannot push a wheel-
What is a specific impairment-related con- chair through the foot of snow or up a steep
dition? The legislative history mentions four hill) but also where the difficulties are so
examples: Chronic fatigue, blindness, a lack substantial that a reasonable person with
of cognitive ability to remember and follow the impairment-related condition in ques-
directions, or a special sensitivity to tem- tion would be deterred from making the trip.
perature. Impaired mobility, severe commu- The regulation makes the interaction be-
nications disabilities (e.g., a combination of tween an impairment-related condition and
serious vision and hearing impairments), the environmental barrier (whether distance,
cardiopulmonary conditions, or various weather, terrain, or architectural barriers)
other serious health problems may have the key to eligibility determinations. This is
similar effects. The Department does not be- an individual determination. Depending on
lieve that it is appropriate, or even possible, the specifics of their impairment-related
to create an exhaustive list. condition, one individual may be able to get
What the rule uses as an eligibility cri- from his home to a bus stop under a given
terion is not just the existence of a specific set of conditions, while his next-door neigh-
impairment-related condition. To be a basis bor may not.
for eligibility, the condition must prevent
the individual from traveling to a boarding COMPANIONS
location or from a disembarking location. The ADA requires entities to provide para-
The word ‘‘prevent’’ is very important. For transit to one person accompanying the eli-
anyone, going to a bus stop and waiting for gible individual, with others served on a
a bus is more difficult and less comfortable space-available basis. The one individual
than waiting for a vehicle at one’s home. who is guaranteed space on the vehicle can
This is likely to be all the more true for an be anyone—family member, business asso-
individual with a disability. But for many ciate, friend, date, etc. The provider cannot
persons with disabilities, in many cir- limit the eligible individual’s choice of type
cumstances, getting to a bus stop is possible. of companion. The transit authority may re-
If an impairment related condition only quire that the eligible individual reserve a
makes the job of accessing transit more dif- space for the companion when the individual
ficult than it might otherwise be, but does reserves his or her own ride. This one indi-
not prevent the travel, then the person is not vidual rides even if this means that there is
eligible. less room for other eligible individuals. Ad-
For example, in many areas, there are not ditional individuals beyond the first com-
yet curb cuts. A wheelchair user can often panion are carried only on a space available
get around this problem by taking a less di- basis; that is, they do not displace other
rect route to a destination than an ambula- ADA paratransit eligible individuals.
tory person would take. That involves more A personal care attendant (i.e., someone
time, trouble, and effort than for someone designated or employed specifically to help
without a mobility impairment. But the per- the eligible individual meet his or her per-
son can still get to the bus stop. On the basis sonal needs) always may ride with the eligi-
of these architectural barriers, the person ble individual. If there is a personal care at-
would not be eligible. tendant on the trip, the eligible individual
Entities are cautioned that, particularly in may still bring a companion, plus additional
cases involving lack of curb cuts and other companions on a space available basis. The
architectural barrier problems, assertions of entity may require that, in reserving the
eligibility should be given tight scrutiny. trip, the eligible individual reserve the space
Only if it is apparent from the facts of a par- for the attendant.
ticular case that an individual cannot find a To prevent potential abuse of this provi-
reasonable alternative path to a location sion, the rule provides that a companion
should eligibility be granted. (e.g., friend or family member) does not
If we add a foot of snow to the scenario, count as a personal care attendant unless
then the same person taking the same route the eligible individual regularly makes use
may be unable to get to the bus stop. It is of a personal care attendant and the com-
not the snow alone that stops him; it is the panion is actually acting in that capacity.
interaction of the snow and the fact that the As noted under § 37.125, a provider may re-
individual has a specific-impairment related quire that, as part of the initial eligibility
482
certification process, an individual indicate must be made available in one or more ac-
whether he or she travels with a personal cessible formats, on request. Accessible for-
care attendant. If someone does not indicate mats include computer disks, braille docu-
the use of an attendant, then any individual ments, audio cassettes, and large print docu-
accompanying him or her would be regarded ments. A document does not necessarily need
simply as a companion. to be made available in the format a re-
To be viewed as ‘‘accompanying’’ the eligi- quester prefers, but it does have to be made
ble individual, a companion must have the available in a format the person can use.
same origin and destination points as the eli- There is no use giving a computer disk to
gible individual. In appropriate cir- someone who does not have a computer, for
cumstances, entities may also wish to pro- instance, or a braille document to a person
vide service to a companion who has either who does not read braille.
an origin or destination, but not both, with When a person applies for eligibility, the
the eligible individual (e.g., the individual’s entity will provide all the needed forms and
date is dropped off at her own residence on instructions. These forms and instructions
the return trip from a concert). may include a declaration of whether the in-
dividual travels with a personal care attend-
Section 37.125 ADA Paratransit Eligibility—
ant. The entity may make further inquiries
Process
concerning such a declaration (e.g., with re-
This section requires an eligibilty process spect to the individual’s actual need for a
to be established by each operator of com- personal care attendant).
plementary paratransit. The details of the When the application process is complete—
process are to be devised through the plan- all necessary actions by the applicant
ning and public participation process of this taken—the entity should process the applica-
subpart. The process may not impose unrea- tion in 21 days. If it is unable to do so, it
sonable administrative burdens on appli- must begin to provide service to the appli-
cants, and, since it is part of the entity’s cant on the 22nd day, as if the application
nondiscrimination obligations, may not in- had been granted. Service may be termi-
volve ‘‘user fees’’ or application fees to the nated only if and when the entity denies the
applicant. application. All determinations shall be in
The process may include functional cri- writing; in the case of a denial, reasons must
teria related to the substantive eligibility be specified. The reasons must specifically
criteria of § 37.123 and, where appropriate, relate the evidence in the matter to the eli-
functional evaluation or testing of appli- gibility criteria of this rule and of the enti-
cants. The substantive eligibility process is ty’s process. A mere recital that the appli-
not aimed at making a medical or diagnostic cant can use fixed route transit is not suffi-
determination. While evaluation by a physi- cient.
cian (or professionals in rehabilitation or For people granted eligibility, the docu-
other relevant fields) may be used as part of mentation of eligibility shall include at least
the process, a diagnosis of a disability is not the following information:
dispositive. What is needed is a determina-
—The individual’s name
tion of whether, as a practical matter, the
—The name of the transit provider
individual can use fixed route transit in his
—The telephone number of the entity’s para-
or her own circumstances. That is a trans-
transit coordinator
portation decision primarily, not a medical
—An expiration date for eligibility
decision.
—Any conditions or limitations on the indi-
The goal of the process is to ensure that
vidual’s eligibility, including the use of a
only people who meet the regulatory cri-
teria, strictly applied, are regarded as ADA personal care attendant.
paratransit eligible. The Department recog- The last point refers to the situation in
nizes that transit entities may wish to pro- which a person is eligible for some trips but
vide service to other persons, which is not not others. Or if the traveler is authorized to
prohibited by this rule. However, the eligi- have a personal care attendant ride free of
bility process should clearly distinguish charge. For example, the documentation
those persons who are ADA eligible from may say that the individual is eligible only
those who are provided service on other when the temperature falls below a certain
grounds. For example, eligibility documenta- point, or when the individual is going to a
tion must clearly state whether someone is destination not on an accessible bus route,
ADA paratransit eligible or eligible on some or for non-work trips, etc.
other basis. As the mention of an expiration date im-
Often, people tend to think of paratransit plies, certification is not forever. The entity
exclusively in terms of people with mobility may recertify eligibility at reasonable inter-
impairments. Under the ADA, this is not ac- vals to make sure that changed cir-
curate. Persons with visual impairments cumstances have not invalidated or changed
may be eligible under either the first or the individual’s eligibility. In the Depart-
third eligibility categories. To accommodate ment’s view, a reasonable interval for recer-
them, all documents concerning eligibility tification is probably between one and three
483
years. Less than one year would probably be the entity’s paratransit plan, and the result
too burdensome for consumers; over three reflected in the plan submission to FTA.
years would begin to lose the point of doing It is very important to note that sanctions
recertifications. The recertification interval could be imposed only for a ‘‘pattern or prac-
should be stated in the entity’s plan. Of tice’’ of missed trips. A pattern or practice
course, a user of the service can apply to involves intentional, repeated or regular ac-
modify conditions on his or her eligibility at tions, not isolated, accidental, or singular
any time. incidents. Moreover, only actions within the
The administrative appeal process is in- control of the individual count as part of a
tended to give applicants who have been de- pattern or practice. Missed trips due to oper-
nied eligibility the opportunity to have their ator error are not attributable to the indi-
cases heard by some official other than the vidual passenger for this purpose. If the vehi-
one who turned them down in the first place. cle arrives substantially after the scheduled
In order to have appropriate separation of pickup time, and the passenger has given up
functions—a key element of administrative on the vehicle and taken a taxi or gone down
due process—not only must the same person the street to talk to a neighbor, that is not
not decide the case on appeal, but that per- a missed trip attributable to the passenger.
son, to the extent practicable, should not If the vehicle does not arrive at all, or is sent
have been involved in the first decision (e.g., to the wrong address, or to the wrong en-
as a member of the same office, or a super- trance to a building, that is not a missed trip
visor or subordinate of the original decision- attributable to the passenger. There may be
maker). When, as in the case of a small tran- other circumstances beyond the individual’s
sit operator, this degree of separation is not control (e.g., a sudden turn for the worse in
feasible, the second decisionmaker should at someone with a variable condition, a sudden
least be ‘‘bubbled’’ with respect to the origi- family emergency) that make it impracti-
nal decision (i.e., not have participated in cable for the individual to travel at the
the original decision or discussed it with the
scheduled time and also for the individual to
original decisionmaker). In addition, there
notify the entity in time to cancel the trip
must be an opportunity to be heard in person
before the vehicle comes. Such cir-
as well as the chance to present written evi-
cumstances also would not form part of a
dence and arguments. All appeals decisions
sanctionable pattern or practice.
must be in writing, stating the reasons for
the decision. Once an entity has certified someone as el-
To prevent the filing of stale claims, the igible, the individual’s eligibility takes on
entity may establish a 60 day ‘‘statute of the coloration of a property right. (This is
limitations’’ on filing of appeals, the time not merely a theoretical statement. If one
starting to run on the date the individual is depends on transportation one has been
notified on the negative initial decision. found eligible for to get to a job, and the eli-
After the appeals process has been completed gibility is removed, one may lose the job.
(i.e., the hearing and/or written submission The same can be said for access to medical
completed), the entity should make a deci- care or other important services.) Con-
sion within 30 days. If it does not, the indi- sequently, before eligibility may be removed
vidual must be provided service beginning ‘‘for cause’’ under this provision, the entity
the 31st day, until and unless an adverse de- must provide administrative due process to
cision is rendered on his or her appeal. the individual.
Under the eligibility criteria of the rule, If the entity proposes to impose sanctions
an individual has a right to paratransit if he on someone, it must first notify the indi-
or she meets the eligibility criteria. As noted vidual in writing (using accessible formats
in the discussion of the nondiscrimination where necessary). The notice must specify
section, an entity may refuse service to the basis of the proposed action (e.g., Mr.
anindividual with a disability who engages Smith scheduled trips for 8 a.m. on May 15,
in violent, seriously disruptive, or illegal 2 p.m. on June 3, 9 a.m. on June 21, and 9:20
conduct, using the same standards for exclu- p.m. on July 10, and on each occasion the ve-
sion that would apply to any other person hicle appeared at the scheduled time and Mr.
who acted in such an inappropriate way. Smith was nowhere to be found) and set
The rule also allows an entity to establish forth the proposed sanction (e.g., Mr. Smith
a process to suspend, for a reasonable period would not receive service for 15 days).
of time, the provision of paratransit service The entity would provide the individual an
to an ADA eligible person who establishes a opportunity to be heard (i.e., an in-person in-
pattern or practice of missing scheduled formal hearing before a decisionmaker) as
trips. The purpose of this process would be to well as to present written and oral informa-
deter or deal with chronic ‘‘no-shows.’’ The tion and arguments. All relevant entity
sanction system—articulated criteria for the records and personnel would be made avail-
imposition of sanctions, length of suspension able to the individual, and other persons
periods, details of the administrative proc- could testify. It is likely that, in many
ess, etc.—would be developed through the cases, an important factual issue would be
public planning and participation process for whether a missed trip was the responsibility
484
of the provider or the passenger, and the tes- diction’’ rather than ‘‘service area.’’ If an in-
timony of other persons and the provider’s dividual lives in XYZ County, but outside
records or personnel are likely to be relevant the fixed route service area of that county’s
in deciding this issue. While the hearing is transit provider, the individual is still not a
intended to be informal, the individual could visitor for purposes of paratransit in PQR
bring a representative (e.g., someone from an County, if PQR is one of the counties with
advocacy organization, an attorney). which XYZ provides coordinated paratransit
The individual may waive the hearing and service.
proceed on the basis of written presen- A visitor can become eligible in one of two
tations. If the individual does not respond to ways. The first is to present documentation
the notice within a reasonable time, the en- from his or her ‘‘home’’ jurisdiction’s para-
tity may make, in effect, a default finding transit system. The local provider will give
and impose sanctions. If there is a hearing, ‘‘full faith and credit’’ to the ID card or
and the individual needs paratransit service other documentation from the other entity.
to attend the hearing, the entity must pro- If the individual has no such documentation,
vide it. We would emphasize that, prior to a the local provider may require the provision
finding against the individual after this due of proof of visitor status (i.e., proof of resi-
process procedure, the individual must con- dence somewhere else) and, if the individ-
tinue to receive service. The entity cannot ual’s disability is not apparent, proof of the
suspend service while the matter is pending. disability (e.g., a letter from a doctor or re-
The entity must notify the individual in habilitation professional). Once this docu-
writing about the decision, the reasons for mentation is presented and is satisfactory,
it, and the sanctions imposed, if any. Again, the local provider will make service avail-
this information would be made available in able on the basis of the individual’s state-
accessible formats. In the case of a decision ment that he or she is unable to use the fixed
adverse to the individual, the administrative route transit system.
appeals process of this section would apply. The local provider need serve someone
The sanction would be stayed pending an ap- based on visitor eligibility for no more than
peal.
21 days. After that, the individual is treated
There are means other than sanctions,
the same as a local person for eligibility pur-
however, by which a transit provider can
poses. This is true whether the 21 days are
deal with a ‘‘no-show’’ problem in its system.
consecutive or parceled out over several
Providers who use ‘‘real time scheduling’’ re-
shorter visits. The local provider may re-
port that this technique is very effective in
quire the erstwhile visitor to apply for eligi-
reducing no-shows and cancellations, and in-
bility in the usual local manner. A visitor
creasing the mix of real time scheduling in a
who expects to be around longer than 21 days
system can probably be of benefit in this
area. Calling the customer to reconfirm a should apply for regular eligibility as soon as
reasonable time before pickup can head off he arrives. The same approach may be used
some problems, as can educating consumers for a service of requested visits totaling 21
to call with cancellations ahead of time. days or more in a relating compact period of
Training of dispatch and operator personnel time. Preferably, this application process
can help to avoid miscommunications that should be arranged before the visitor arrives,
lead to missed trips. by letter, telephone or fax, so that a com-
plete application can be processed expedi-
Section 37.127 Complementary Paratransit for tiously.
Visitors
Section 37.129 Types of Service
This section requires each entity having a
complementary paratransit system to pro- The basic mode of service for complemen-
vide service to visitors from out of town on tary paratransit is demand responsive, ori-
the same basis as it is provided to local resi- gin-to-destination service. This service may
dents. By ‘‘on the same basis,’’ we mean be provided for persons in any one of the
under all the same conditions, service cri- three eligibility categories, and must always
teria, etc., without distinction. For the pe- be provided to persons in the first category
riod of a visit, the visitor is treated exactly (e.g., people who cannot navigate the sys-
like an eligible local user, without any high- tem). The local planning process should de-
er priority being given to either. cide whether, or in what circumstances, this
A visitor is defined as someone who does service is to be provided as door-to-door or
not reside in the jurisdiction or jurisdictions curb-to-curb service.
served by the public entity or other public For persons in the second eligibility cat-
entities with which it coordinates para- egory (e.g., persons who can use accessible
transit service. For example, suppose a five- buses, but do not have an accessible bus
county metropolitan area provides coordi- route available to take them to their des-
nated paratransit service under a joint plan. tination), origin-to-destination service can
A resident of any of the five counties would be used. Alternatively, the entity can pro-
not be regarded as a visitor in any of them. vide either of two other forms of service. One
Note that the rule talks in terms of ‘‘juris- is on-call bus, in which the individual calls
485
the provider and arranges for one or more ac- essary to arrange for feeder service at both
cessible buses to arrive on the routes he ends of the fixed route trip. Given the more
needs to use at the appropriate time. On-call complicated logistics of such arrangements,
bus service must meet all the service criteria and the potential for a mistake that would
of § 37.131, except that on-call buses run only seriously inconvenience the passenger, the
on fixed routes and the fare charged can be transit provider should consider carefully
only the fixed route fare that anyone pays on whether such a ‘‘double feeder’’ system,
the bus (including discounts). while permissible, is truly workable in its
The second option is ‘‘feeder paratransit’’ system (as opposed to a simpler system that
to an accessible fixed route that will take used feeder service only at one end of a trip
the individual to his or her destination. when the bus let the person off at a place
Feeder paratransit, again, would have to from which he or she could independently
meet all the criteria of § 37.131. With respect get to the destination). There may be some
to fares, the paratransit fare could be situations in which origin to destination
charged, but the individual would not be service is easier and less expensive.
double charged for the trip. That is, having
paid the paratransit fare, the transfer to the Section 37.131 Service Criteria for
fixed route would be free. Complementary Paratransit Service Area
For persons in the third eligibility cat- The basic bus system service area is a cor-
egory (e.g., persons who can use fixed route ridor with a width of 3⁄4 of a mile on each side
transit but who, because of a specific impair- of each fixed route. At the end of a route,
ment-related condition, cannot get to or there is a semicircular ‘‘cap’’ on the cor-
from a stop), the ‘‘feeder paratransit’’ op- ridor, consisting of a three-quarter mile ra-
tion, under the conditions outlined above, is dius from the end point of the route to the
available. For some trips, it might be nec- parallel sides of the corridor.
Complementary paratransit must provide uncovered, and they are likely to be very
service to any origin or destination point small. Paratransit would serve all origins
within a corridor fitting this description and destinations in the solid blue mass.
around any route in the bus system. Note But what of the little white spots sur-
that this does not say that an eligible user rounded by various bus corridors? Because it
must live within a corridor in order to be eli- would make sense to avoid providing service
gible. If an individual lives outside the cor- to such small isolated areas, the rule re-
ridor, and can find a way of getting to a quires paratransit service there as well. So
pickup point within the corridor, the service color them in too.
must pick him up there. The same holds true Outside the core area, though, as bus
at the destination end of the trip. routes follow radial arteries into the suburbs
Another concept involved in this service and exurbs (we know real bus route maps are
criterion is the core service area. Imagine a more complicated than this, but we simplify
bus route map of a typical city. Color the for purposes of illustration), there are in-
bus routes and their corridors blue, against creasingly wide white areas between the blue
the white outline map. In the densely popu- corridors, which may have corridors on ei-
lated areas of the city, the routes (which, ther side of them but are not small areas
with their corridors attached, cut 11⁄2 mile completely surrounded by corridors. These
swaths) merge together into a solid blue white spaces are not part of the paratransit
mass. There are few, if any, white spots left service area and the entity does not have to
486
EC02FE91.191</GPH>
serve origins and destinations there. How- ridor. This exception to the service area cri-
ever, if, through the planning process, the terion does not automatically apply when-
entity wants to enlarge the width of one or ever there is a political boundary, only when
more of the blue corridors from the 3⁄4 of a there is a legal bar to the entity providing
mile width, it can do so, to a maximum of 11⁄2 service on the other side of the boundary.
miles on each side of a route. The cost of The rule requires, in this situation, that
service provided within such an expanded the entity take all practicable steps to get
corridor can be counted in connection with around the problem so that it can provide
an undue financial burden waiver request. service throughout its service area. The enti-
There may be a part of the service area ty should work with the state or local gov-
where part of one of the corridors overlaps a ernments involved, via coordination plans,
political boundary, resulting in a require- reciprocity agreements, memoranda of un-
ment to serve origins and destinations in a derstanding or other means to prevent polit-
neighboring jurisdiction which the entity ical boundaries from becoming barriers to
lacks legal authority to service. The entity the travel of individuals with disabilities.
is not required to serve such origins and des- The definition of the service area for rail
tinations, even though the area on the other systems is somewhat different, though many
side of the political boundary is within a cor- of the same concepts apply.
Around each station on the line (whether to get from station E or F to point x. A para-
or not a key station), the entity would draw transit system comparable to the rail service
a circle with a radius of 3⁄4 mile. Some circles area would not be required to take someone
may touch or overlap. The series of circles is there either.
the rail system’s service area. (We recognize Rail systems typically provide trips that
that, in systems where stations are close to- are not made, or cannot be made conven-
gether, this could result in a service area iently, on bus systems. For example, many
that approached being a corridor like that of rail systems cross jurisdictional boundaries
a bus line.) The rail system would provide that bus systems often do not. One can trav-
paratransit service from any point in one el from Station A to a relatively distant Sta-
circle to any point in any other circle. The tion E on a rail system in a single trip, while
entity would not have to provide service to a bus trip between the same points, if pos-
two points within the same circle, since a sible at all, may involve a number of indirect
trip between two points in the vicinity of the routings and transfers, on two bus systems
same station is not a trip that typically that may not interface especially well.
would be taken by train. Nor would the enti- Rail operators have an obligation to pro-
ty have to provide service to spaces between vide paratransit equivalents of trips between
the circles. For example, a train trip would circles to persons who cannot use fixed route
not get close to point x; one would have to rail systems because they cannot navigate
take a bus or other mode of transportation the system, because key stations or trains
487
EC02FE91.192</GPH>
are not yet accessible, or because they can- Sometimes users want to schedule service
not access stations from points within the well in advance, to be sure of traveling when
circles because of a specific impairment-re- they want to. The rule tells providers to per-
lated condition. For individuals who are eli- mit reservations to be made as much as 14
gible in category 2 because they need an ac- days in advance. In addition, though an enti-
cessible key station to use the system, the ty may negotiate with a user to adjust pick-
paratransit obligation extends only to trans- up and return trip times to make scheduling
portation among ‘‘circles’’ centered on des- more efficient, the entity cannot insist on
ignated key stations (since, even when the scheduling a trip more than one hour earlier
key station plan is fully implemented, these or later than the individual desires to travel.
individuals will be unable to use non-key Any greater deviation from desired trip
stations). would exceed the bounds of comparability.
It is not sufficient for a rail operator to
refer persons with disabilities to an acces- FARES
sible bus system in the area. The obligation
To calculate the proper paratransit fare,
to provide paratransit for a rail system is
the entity would determine the route(s) that
independent of the operations of any bus sys-
an individual would take to get from his or
tem serving the same area, whether operated
her origin to his or her destination on the
by the same entity that operates the rail
fixed route system. At the time of day the
system or a different entity. Obviously, it
person was traveling, what is the fare for
will be advantageous for bus and rail sys-
tems to coordinate their paratransit efforts, that trip on those routes? Applicable charges
but a coordinated system would have to en- like transfer fees or premium service charges
sure coverage of trips comparable to rail may be added to the amount, but discounts
trips that could not conveniently be taken (e.g., the half-fare discount for off-peak fixed
on the fixed route bus system. route travel by elderly and handicapped per-
sons) would not be subtracted. The transit
RESPONSE TIME provider could charge up to twice the result-
ing amount for the paratransit trip.
Under this provision, an entity must make
The mode through which paratransit is
its reservation service available during the
provided does not change the method of cal-
hours its administrative offices are open. If
culation. For example, if paratransit is pro-
those offices are open 9 to 5, those are the
vided via user side subsidy taxi service rath-
hours during which the reservations service
er than publicly operated dial-a-ride van
must be open, even if the entity’s transit
service, the cost to the user could still be
service operated 6 a.m. to midnight. On days
only twice the applicable fixed route fare.
prior to a service day on which the adminis-
The system operates the same regardless of
trative offices are not open at all (e.g., a
Sunday prior to a Monday service day), the whether the paratransit trip is being pro-
reservation service would also be open 9 to 5. vided in place of a bus or a rail trip the user
Note that the reservation service on any day cannot make on the fixed route system.
does not have to be provided directly by a Where bus and rail systems are run by the
‘‘real person.’’ An answering machine or same provider (or where the same bus pro-
other technology can suffice. vider runs parallel local and express buses
Any caller reaching the reservation service along the same route), the comparison would
during the 9 to 5 period, in this example, be made to the mode on which a typical fixed
could reserve service for any time during the route user would make the particular trip,
next 6 a.m. to 12 midnight service day. This based on schedule, length, convenience,
is the difference between ‘‘next day sched- avoidance of transfers, etc.
uling’’ and a system involving a 24-hour Companions are charged the same fare as
prior reservation requirement, in which a the eligible individual they are accom-
caller would have to reserve a trip at 7 a.m. panying. Personal care attendants ride free.
today if he or she wanted to travel at 7 a.m. One exception to the fare requirement is
tomorrow. The latter approach is not ade- made for social service agency (or other or-
quate under this rule. ganization-sponsored) trips. This exception,
The entity may use real time scheduling which allows the transit provider to nego-
for all or part of its service. Like the Moliere tiate a price with the agency that is more
character who spoke prose all his life with- than twice the relevant fixed route fare, ap-
out knowing it, many entities may already plies to ‘‘agency trips,’’ by which we mean
be using some real time scheduling (e.g., for trips which are guaranteed to the agency for
return trips which are scheduled on a when- its use. That is, if an agency wants 12 slots
needed basis, as opposed to in advance). A for a trip to the mall on Saturday for clients
number of transit providers who have used with disabilities, the agency makes the res-
real time scheduling believe that it is more ervation for the trips in its name, the agency
efficient on a per-trip basis and reduces can- will be paying for the transportation, and
cellations and no-shows significantly. We en- the trips are reserved to the agency, for
courage entities to consider this form of whichever 12 people the agency designates,
service. the provider may then negotiate any price it
488
can with the agency for the trips. We distin- son tickets to a sold-out slate of professional
guish this situation from one in which an football games.
agency employee, as a service, calls and The second mechanism specifically men-
makes an individual reservation in the name tioned is a number limit on the trips a pas-
of a client, where the client will be paying senger can take in a given period of time. It
for the transportation. is a kind of rationing in which, for example,
if one has taken his quota of 30 trips this
RESTRICTIONS AND PRIORITIES BASED ON TRIP month, he cannot take further trips for the
PURPOSE rest of the month.
This is a simple and straightforward re- In addition, this paragraph prohibits any
quirement. There can be no restrictions or operational pattern or practice that signifi-
priorities based on trip purpose in a com- cantly limits the availability of service of
parable complementary paratransit system. ADA paratransit eligible persons. As dis-
When a user reserves a trip, the entity will cussed under § 37.125 in the context of missed
need to know the origin, destination, time of trips by passengers, a ‘‘pattern or practice’’
travel, and how many people are traveling. involves, regular, or repeated actions, not
The entity does not need to know why the isolated, accidental, or singular incidents. A
person is traveling, and should not even ask. missed trip, late arrival, or trip denial now
and then does not trigger this provision.
HOURS AND DAYS OF SERVICE Operational problems outside the control
of the entity do not count as part of a pat-
This criterion says simply that if a person
tern or practice under this provision. For ex-
can travel to a given destination using a
ample, if the vehicle has an accident on the
given fixed route at a given time of day, an
way to pick up a passenger, the late arrival
ADA paratransit eligible person must be able
would not count as part of a pattern or prac-
to travel to that same destination on para-
tice. If something that could not have been
transit at that time of day. This criterion
anticipated at the time the trip was sched-
recognizes that the shape of the service area uled (e.g., a snowstorm, an accident or haz-
can change. Late at night, for example, it is ardous materials incident that traps the
common for certain routes not to be run. paratransit vehicle, like all traffic on a cer-
Those routes, and their paratransit cor- tain highway, for hours), the resulting
ridors, do not need to be served with para- missed trip would not count as part of a pat-
transit when the fixed route system is not tern or practice. On the other hand, if the en-
running on them. One couldn’t get to des- tity regularly does not maintain its vehicles
tinations in that corridor by fixed route at well, such that frequent mechanical break-
those times, so paratransit service is not downs result in missed trips or late arrivals,
necessary either. a pattern or practice may exist. This is also
It should be pointed out that service dur- true in a situation in which scheduling prac-
ing low-demand times need not be by the tices fail to take into account regularly oc-
same paratransit mode as during higher curring traffic conditions (e.g., rush hour
usage periods. For example, if a provider traffic jams), resulting in frequent late ar-
uses its own paratransit vans during high de- rivals.
mand periods, it could use a private con- The rule mentions three specific examples
tractor or user-side subsidy provider during of operational patterns or practices that
low demand periods. This would presumably would violate this provision. The first is a
be a more efficient way of providing late pattern or practice of substantial numbers of
night service. A call-forwarding device for significantly untimely pickups (either for
communication with the auxiliary carrier initial or return trips). To violate this provi-
during these low demand times would be per- sion, there must be both a substantial num-
fectly acceptable, and could reduce adminis- ber of late arrivals and the late arrivals in
trative costs. question must be significant in length. For
example, a DOT Inspector General’s (IG) re-
CAPACITY CONSTRAINTS
port on one city’s paratransit system dis-
This provision specifically prohibits two closed that around 30 percent of trips were
common mechanisms that limit use of a between one and five hours late. Such a situ-
paratransit system so as to constrain de- ation would trigger this provision. On the
mand on its capacity. The first is a waiting other hand, only a few instances of trips one
list. Tyically, a waiting list involves a deter- to five hours late, or many instances of trips
mination by a provider that it can provide a few minutes late, would not trigger this
service only to a given number of eligible provision.
persons. Other eligible persons are not able The second example is substantial numbers
to receive service until one of the people of trip denials or missed trips. For example,
being served moves away or otherwise no if on a regular basis the reservation phone
longer uses the service. Then the persons on lines open at 5 a.m. and callers after 7 a.m.
the waiting list can move up. The process is are all told that they cannot travel, or the
analogous to the wait that persons in some phone lines shut down after 7 a.m. and a re-
cities have to endure to be able to buy sea- corded message says to call back the next
489
day, or the phone lines are always so busy Section 37.133 Subscription Service
that no one can get through, this provision As part of its paratransit service, an entity
would be triggered. (Practices of this kind may include a subscription service compo-
would probably violate the response time nent. However, at any given time of day, this
criterion as well.) Also, if, on a regular basis, component may not absorb more than 50 per-
the entity misses a substantial number of cent of available capacity on the total sys-
trips (e.g., a trip is scheduled, the passenger tem. For example, if, at 8 a.m., the system
is waiting, but the vehicle never comes, goes can provide 400 trips, no more than 200 of
to the wrong address, is extremely late, etc.), these can be subscription trips.
it would violate this provision. The one exception to this rule would occur
The third example is substantial numbers in a situation in which there is excess non-
of trips with excessive trip lengths. Since subscription capacity available. For exam-
paratransit is a shared ride service, para- ple, if over a long enough period of time to
transit rides between Point A and Point B establish a pattern, there were only 150 non-
will usually take longer, and involve more subscription trips requested at 8 a.m., the
intermediate stops, than a taxi ride between provider could begin to provide 250 subscrip-
the same two points. However, when the tion trips at that time. Subsequently, if non-
subscription demand increased over a period
number of intermediate stops and the total
of time, such that the 50 trips were needed to
trip time for a given passenger grows so
satisfy a regular non-subscription demand at
large as to make use of the system prohibi-
that time, and overall system capacity had
tively inconvenient, then this provision not increased, the 50 trips would have to be
would be triggered. For example, the IG re- returned to the non-subscription category.
port referred to above mentioned a situation During times of high subscription demand,
in which 9 percent of riders had one way entities could use the trip time negotiation
trips averaging between two and four hours, discretion of § 37.131(c)(2) to shift some trips
with an average of 16 intermediate stops. to other times.
Such a situation would probably trigger this Because subscription service is a limited
provision. subcomponent of paratransit service, the
Though these three examples probably rule permits restrictions to be imposed on its
cover the most frequently cited problems in use that could not be imposed elsewhere.
paratransit operations that directly or indi- There may be a waiting list for provision of
rectly limit the provision of service that is subscription service or the use of other ca-
theoretically available to eligible persons, pacity constraints. Also, there may be re-
the list is not exhaustive. Other patterns or strictions or priorities based on trip purpose.
practices could trigger this provision. For For example, subscription service under
example, the Department has heard about a peak work trip times could be limited to
situation in which an entity’s paratransit work trips. We emphasize that these limita-
contractor was paid on a per-trip basis, re- tions apply only to subscription service. It is
gardless of the length of the trip. The con- acceptable for a provider to put a person on
tractor therefore had an economic incentive a waiting list for access to subscription serv-
to provide as many trips as possible. As a re- ice at 8 a.m. for work trips; the same person
sult, the contractor accepted short trips and could not be wait-listed for access to para-
routinely denied longer trips. This would be transit service in general.
a pattern or practice contrary to this provi-
Section 37.135 Submission of Paratransit Plans
sion (and contrary to the service area provi-
sion as well). This section contains the general require-
ments concerning the submission of para-
ADDITIONAL SERVICE transit plans. Each public entity operating
fixed route service is required to develop and
This provision emphasizes that entities submit a plan for paratransit service. Where
may go beyond the requirements of this sec- you send your plans depends on the type of
tion in providing service to ADA paratransit entity you are. There are two categories of
individuals. For example, no one is precluded entities which should submit their plans to
from offering service in a larger service area, states—(1) FTA recipients and (2) entities
during greater hours than the fixed route who are administered by the state on behalf
system, or without charge. However, costs of of FTA.
such additional service do not count with re- These FTA grantees submit their plans to
spect to undue financial burden waiver re- the states because the agency would like the
quests. Where a service criterion itself incor- benefit of the states’ expertise before final
porates a range of actions the entity may review. The states’ role is as a commenter,
take (e.g., providing wide corridors outside not as a reviewer.
the urban core, using real time scheduling), This section also specifies annual progress
however, costs of providing that optional reports concerning the meeting of previously
service may be counted for undue financial approved milestones, any slippage (with the
burden waiver request purposes. reasons for it and plans to catch up), and any
490
significant changes in the operator’s envi- continue to provide service into the foresee-
ronment, such as the withdrawal from the able future.
marketplace of a private paratransit pro- Second, § 37.137 specifies requirements for
vider or whose service the entity has relied public participation. First, the entity must
upon to provide part of its paratransit serv- perform outreach, to ensure that a wide
ice. range of persons anticipated to use the para-
Paragraph (d) of this section specifies a transit service know about and have the op-
maximum time period for the phase-in of the portunity to participate in the development
implementation of paratransit plans. The of the plan. Not only must the entity iden-
Department recognizes that it is not reason- tify who these individuals or groups are, the
able to expect paratransit systems to spring entity also must contact the people at an
into existence fully formed, like Athena early stage in the development process.
from the head of Zeus. Under this paragraph, The other public participation require-
all entities must be in full compliance with ments are straightforward. There must be a
all paratransit provisions by January 26, public hearing and an opportunity to com-
1997, unless the entity has received a waiver ment. The hearing must be accessible to
from FTA based on undue financial burden those with disabilities, and notice of the
(which applies only to the service criteria of hearing must be accessible as well. There is
§ 37.131, not to eligibility requirements or a special efforts test identified in this para-
other paratransit provisions). graph for comments concerning a multi-year
While the rule assumes that most entities phase-in of a paratransit plan.
will take a year to fully implement these The final general requirement of the sec-
provisions, longer than a year requires the tion specifies that efforts at public participa-
paratransit plans to submit milestones that tion must be made permanent through some
are susceptible to objective verification. Not mechanism that provides for participation in
all plans will be approved with a five-year all phases of paratransit plan development
lead-in period. Consistent with the proposed
and submission. The Department is not re-
rule, the Department intends to look at each
quiring that there be an advisory committee
plan individually to see what is required for
established, although this is one method of
implementation in each case. DOT may ap-
institutionalizing participation. The Depart-
prove only a shorter phase-in period in a
ment is not as interested in the specific
given case.
structure used to ensure public participation
Section 37.137 Paratransit Plan Development as we are interested in the effectiveness of
the effort.
Section 35.137 establishes three principal The Department believes that public par-
requirements in the development of para- ticipation is a key element in the effective
transit plans. implementation of the ADA. The ADA is an
First is the requirement to survey existing opportunity to develop programs that will
paratransit services within the service area. ensure the integration of all persons into not
This is required by section 223(c)(8) of the just the transportation system of America,
ADA. While the ADA falls short of explicitly but all of the opportunities transportation
requiring coordination, clearly this is one of makes possible. This opportunity is not
the goals. The purpose of the survey is to de- without tremendous challenges to the tran-
termine what is being provided already, so
sit providers. It is only through dialogue,
that a transit provider can accurately assess
over the long term, that usable, possible
what additional service is needed to meet the
plans can be developed and implemented.
service criteria for comparable paratransit
service. The plan does not have to discuss Section 37.139 Plan Contents
private paratransit providers whose services
will not be used to help meet paratransit re- This section contains substantive cat-
quirements under this rule. However, the egories of information to be contained in the
public entity will need to know specifically paratransit plan: Information on current and
what services are being provided by whom if changing fixed route service; inventory of
the entity is to count the transportation to- existing paratransit service; discussion of
ward the overall need. the discrepancies between existing para-
Since the public entity is required to pro- transit and what is required under this regu-
vide paratransit to all ADA paratransit eligi- lation; a discussion of the public participa-
ble individuals, there is some concern that tion requirements and how they have been
currently provided service may be cut back met; the plan for paratransit service; the
or eliminated. It is possible that this may budget for paratransit services; efforts to co-
happen and such action would have a nega- ordinate with other transportation pro-
tive effect on transportation provided to per- viders; a description of the process in place
sons with disabilities in general. The Depart- or to be used to register ADA paratransit eli-
ment urges each entity required to submit a gible individuals; a description of the docu-
plan to work with current providers of trans- mentation provided to each individual
portation, not only to determine what trans- verifying eligibility; and a request for a
portation services they provide, but also to waiver based on undue financial burden, if
491
applicable. The final rule contains a reorga- The ADA itself contained a figure of 43
nized and slightly expanded section on plan million persons with disabilities. It should
contents, reflecting requests to be more ex- be pointed out that many of these may not
plicit, rather than less explicit. necessarily be eligible for ADA paratransit
The list of required elements is the same service. The Department’s regulatory impact
for all entities required to submit para- analysis discussing the probable costs in-
transit plans. There is no document length volved in implementing this rule places the
requirement, however. Each entity (or group possible percentage of population who would
plan) is unique and we expect the plans to re- be eligible for paratransit service at between
flect this. While we would like the plan ele- 1.4 and 1.9 percent. This figure can vary de-
ments presented in the order listed in this pending on the type and variety of services
section, the contents most likely will vary you have available, or on such things as cli-
greatly, depending on the size, geographic mate, proximity to medical care, family, etc.
area, budget, complexity of issues, etc. of the that a person with a disability may need.
particular submitting agency. Clearly estimating demand is one of the
This section and § 37.139 provide for a max- most critical elements in the plan, since it
imum phase-in period of five years, with an will be used to make decisions about all of
assumed one-year phase-in for all para- the various service criteria.
transit programs. (The required budget has Section 37.139 contains a new paragraph (j),
been changed to five years as well.) The De- spelling out in more detail requirements re-
partment has established a maximum five- lated to the annual submission of plans.
year phase-in in the belief that not all sys- Since there is now the possibility for five-
tems will require that long, but that some, year phase-ins, the annual plan dem-
particularly those which had chosen to meet onstrates the progress made to date, and ex-
plains any delays.
compliance with section 504 requirements
with accessible fixed route service, may in- Section 37.141 Requirements If a Joint Plan is
deed need five years. Submitted
We are confident that, through the public
participation process, entities can develop a The Department believes that, particularly
realistic plan for full compliance with the in large, multi-provider regions, a coordi-
ADA. To help ensure this, the paratransit nated regional paratransit plan and system
plan contents section now requires that any are extremely important. Such coordination
plan which projects full compliance after can do much to ensure that the most com-
January 26, 1993 must include milestones prehensive transportation can be provided
which can be measured and which result in with the most efficient use of available re-
steady progress toward full compliance. For sources. We recognize that the effort of put-
example, it is possible that the first part of ting together such a coordinated system can
be a lengthy one. This section is intended to
year one is used to ensure comprehensive
facilitate the process of forming such a co-
registration of all eligible persons with dis-
ordinated system.
abilities, training of transit provider staffs
If a number of entities wish to submit a
and the development and dissemination of
joint plan for a coordinated system, they
information to users and potential users in
must, like other entities, submit a document
accessible formats and some modest increase
by January 26, 1992. At a minimum, this doc-
in paratransit service is provided. A plan
ument must include the following:
would not be permitted to indicate that no (1) A general statement that the partici-
activity was possible in the first year, but pating entities intend to file a joint coordi-
proportionately more progress could be nated plan;
planned for later years than for the first (2) A certification from each participating
year. Implementation must begin in January entity that it is committed to providing
1992. paratransit as a part of a coordinated plan;
Each plan, including its proposed phase-in (3) A certification from each participating
period, will be the subject of examination by entity that it will maintain at least current
FTA. Not all providers who request a five- levels of paratransit service until the coordi-
year phase-in will receive approval for a five- nated paratransit service called for by the
year phase-in. The plan must be careful, joint plan is implemented;
therefore, to explain what current services (4) As many elements of the plan as pos-
are, what the projections are, and what sible.
methods are in place to determine and pro- These provisions ensure that significant
vide accountability for progress toward full planning will precede, and plan implementa-
compliance. tion will begin by, January 26, 1992, without
We have been asked for assistance in as- precluding entities from cooperating because
sessing what the demand for paratransit it was not possible to complete coordinating
service will be. FTA’s ADA Paratransit Man- different public entities by that date. The
ual provides detailed assistance in this and entities involved in a joint plan are required
many other areas of the plan development to submit all elements of their plan by July
process. 26, 1992.
492
The final provision in the section notes entity to coordinate with other entities in a
that an entity may later join a coordinated plan submission, and any comments sub-
plan, even if it has filed its own plan on Jan- mitted by the states.
uary 26, 1992. An entity must submit its own These elements are not the only items that
plan by January 26, 1992, if it has not pro- will be reviewed by FTA. Every portion of
vided a certification of participation in a the plan will be reviewed and assessed for
joint plan.). In this case, the entity must compliance with the regulation. This section
provide the assurances and certifications re- merely highlights those provisions thought
quired of all of the other participating enti-
most important by the Department.
ties.
The Department fully expects that many Section 37.151 Waiver for Undue Financial
jurisdictions filing joint plans will be able to Burden
do so by January 26, 1992. For those who can-
not, the regulatory provision ensures that The Department has adopted a five-year
there will be no decrease in paratransit serv- phase-in for paratransit service. Under this
ice. Further, since we anticipate coordinated scheme, each entity required to provide
service areas to provide more effective serv- paratransit service will be able to design a
ice, complete implementation of a joint plan phase-in of its service specifically geared to
could be more rapid than if each entity was local circumstances. While all jurisdictions
providing service on its own. will not receive approval for plans with a
Entities submitting a joint plan do not five year phase-in, each entity will be able to
have any longer than any other entities to request what it needs based on local cir-
fully implement complementary paratransit
cumstances. Generally, the section allows an
service. In any case, all plans (joint or sin-
entity to request a wavier at any time it de-
gle) must be fully implemented by January
termines that it will not be able to meet a
26, 1997, absent a waiver for undue financial
burden (which would, in the case of a joint five-year phase-in or make measured
plan, be considered on a joint basis). progress toward its full compliance date
specified in its original plan.
Section 37.143 Paratransit Plan A waiver for undue financial burden should
Implementation be requested if one of the following cir-
As already discussed under § 37.135, the cumstances applies. First, when the entity
states will receive FTA recipient plans for submits its first plan on January 26, 1992, if
section 18 recipients administered by the the entity knows it will not be able to reach
State or any small urbanized area recipient full compliance within five years, or if the
of section 9 funds administered by a state. entity cannot make measured progress the
Public entities who do not receive FTA funds first year it may submit a waiver request.
will submit their plans directly to the appli- The entity also should apply for a waiver, if,
cable Regional Office (listed in appendix B to during plan implementation, there are
the rule). changed circumstances which make it un-
The role of the state is to accept the plans likely that compliance will be possible.
on behalf of FTA, to ensure that all plans are The concept of measured progress should
submitted to it and forward the plans, with be given its plain meaning. It is not accept-
any comments on the plans, to FTA. This able to submit a plan which shows signifi-
comment is very important for FTA to re- cant progress in implementing a plan in
ceive, since states administer these pro-
years four and five, but no progress in years
grams on behalf of FTA. Each state’s specific
one and two. Similarly, the progress must be
knowledge of FTA grantees it administers
susceptible to objective verification. An en-
will provide helpful information to FTA in
tity cannot merely ‘‘work toward’’ devel-
making its decisions.
The rule lists five questions the states oping a particular aspect of a plan.
must answer when they forward the plans. The Department intends that undue bur-
These questions are gauged to capitalize on den waiver requests will be given close scru-
the working knowledge the states possess on tiny, and waiver will not be granted highly.
the grantees. FTA will send a more specific In reviewing requests, however, as the legis-
letter of instruction to each state explaining lative history indicates, FTA will look at the
its role. individual financial constraints within
which each public entity operates its fixed
Section 37.147 FTA Review of Plans route system. ‘‘Any determination of undue
This provision spells out factors FTA will financial burden cannot have assumed the
consider in reviewing each plan, including collection of additional revenues, such as
whether the submission is complete, whether those received through increases in local
the plan complies with the substance of the taxes or legislative appropriations, which
ADA regulation, whether the entity com- would not have otherwise been made avail-
plied with the public participation require- able to the fixed route operator.’’ (H. Rept.
ments in developing the plan, efforts by the 101–485, Pt. 1, at 31)
493
Section 37.153 FTA Waiver Determination transit eligible persons that can be counted
in assessing whether or not there is an undue
If the FTA Administrator grants a waiver
financial burden. Two cost factors are in-
for undue financial burden, the waiver will
cluded in the considerations which enhance
be for a specified period of time and the Ad-
the Administrator’s ability to assess real
ministrator will determine what the entity
commitment to these paratransit provisions.
must do to meet its responsibilities under
First, the Department will allow a statis-
the ADA. Each determination will involve a
tically valid methodology for estimating
judgment of what is appropriate on a case-
number of trips mandated by the ADA. While
by-case basis. Since each waiver will be
the regulation calls for a trip-by-trip deter-
granted based on individual circumstances,
mination of eligibility, this provision recog-
the Department does not deem it appropriate
nizes that this is not possible for some sys-
to specify a generally applicable duration for
tems, particularly the large systems. Since
a waiver.
only those trips provided to a person when he
When a waiver is granted, the rule calls for
or she is ADA eligible may be counted in de-
entities to look first at limiting the number
termining an undue financial burden, this
of trips provided to each individual as a
provision is necessary.
means of providing service that does not cre-
Second, in determining costs to be counted
ate an undue burden. This capacity con-
toward providing paratransit service, para-
straint, unlike manipulations of other serv-
graph (b)(3) allows an entity to include in its
ice criteria, will not result in a degradation
paratransit budget dollars to which it is le-
of the quality of service. An entity intending
gally entitled, but which, as a matter of
to submit an undue burden waiver request
state or local funding arrangements, are pro-
should take this approach into account in its
vided to another entity that is actually pro-
planning process. viding the paratransit service.
It should be noted that requiring an entity For example, a state government may pro-
to provide paratransit service at least during vide a certain formula allocation of the rev-
core hours along key routes is one option enue from a certain tax to each jurisdiction
that the Administrator has available in for use in providing transportation service at
making a decision about the service to be the local level. The funds, depending on local
provided. This requirement stems from the arrangements, may flow either to a transit
statutory provision that the Administrator authority—a regulated entity under this
can require the entity to provide a minimum rule—or to a city or county government. If
level of service, even if to do so would be an the funds go to the transit authority, they
undue financial burden. Certainly part of a clearly may be counted in an undue burden
request for a waiver could be a locally en- calculation. In addition, however, this provi-
dorsed alternative to this description of sion also allows funds that flow through the
basic service. The rule states explicitly the city or county government to be counted in
Administrator’s discretion to return the ap- the undue burden calculation, since they are
plication for more information if necessary. basically the same funds and should not be
treated differently based on the accident of
Section 37.155 Factors in Decision To Grant an
previously-determined local arrangements.
Undue Financial Burden Waiver
On the other hand, this provision does not
Factors the Administrator will consider in allow funds of a private non-profit or other
making a decision whether to grant an organization who uses Department of Health
undue financial burden waiver request in- and Human Services grant or private con-
clude effects on current fixed route service, tributions to be counted toward the entity’s
reductions in other services, increases in financial commitment to paratransit.
fares, resources available to implement com-
plementary paratransit over the period of SUBPART G—PROVISION OF SERVICE
the plan, current level of accessible service
Section 37.161 Maintenance of Accessible
(fixed route and paratransit), cooperation
Features—General
among transit providers, evidence of in-
creased efficiencies that have been or could This section applies to all entities pro-
be used, any unique circumstances that may viding transportation services, public and
affect the entity’s ability to provide para- private. It requires those entities to main-
transit service, the level of per capita service tain in operative condition those features or
being provided, both to the population as a facilities and equipment that make facilities
whole and what is being or anticipated to be and vehicles accessible to and usable by indi-
provided to persons who are eligible and reg- viduals with disabilities.
istered to receive ADA paratransit service. The ADA requires that, to the maximum
This final element allows some measure of extent feasible, facilities be accessible to and
comparability, regardless of the specific usable by individuals with disabilities. This
service criteria and should assist in a general section recognizes that it is not sufficient to
assessment of level of effort. provide features such as lift-equipped vehi-
It is only the costs associated with pro- cles, elevators, communications systems to
viding paratransit service to ADA-para- provide information to people with vision or
494
hearing impairments, etc. if these features The point of a preventive maintenance pro-
are not maintained in a manner that enables gram is to prevent breakdowns, of course.
individuals with disabilities to use them. In- But it is also important to catch broken lifts
operative lifts or elevators, locked accessible as soon as possible, so that they can be re-
doors, accessible paths of travel that are paired promptly. Especially in a bus system
blocked by equipment or boxes of materials with relatively low lift usage, it is possible
are not accessible to or usable by individuals that a vehicle could go for a number of days
with disabilities. without carrying a passenger who uses the
The rule points out that temporary ob- lift. It is highly undesirable for the next pas-
structions or isolated instances of mechan- senger who needs a lift to be the person who
ical failure would not be considered viola- discovers that the lift is broken, when a
tions of the ADA or this rule. Repairs must maintenance check by the operator could
be made ‘‘promptly.’’ The rule does not, and have discovered the problem days earlier, re-
probably could not, state a time limit for sulting in its repair.
making particular repairs, given the variety Therefore, the entity must have a system
of circumstances involved. However, repair- for regular and frequent checks, sufficient to
ing accessible features must be made a high determine if lifts are actually operative.
priority. Allowing obstructions or out of This is not a requirement for the lift daily.
order accessibility equipment to persist be- (Indeed, it is not, as such, a requirement for
yond a reasonable period of time would vio- lift cycling at all. If there is another means
late this Part, as would mechanical failures available of checking the lift, it may be
due to improper or inadequate maintenance. used.) If alternate day checks, for example,
Failure of the entity to ensure that acces- are sufficient to determine that lifts are ac-
sible routes are free of obstruction and prop- tually working, then they are permitted. If a
erly maintained, or failure to arrange lift is used in service on a given day, that
prompt repair of inoperative elevators, lifts, may be sufficient to determine that the lift
or other accessibility-related equipment, is operative with respect to the next day. It
would also violate this part. would be a violation of this part, however,
The rule also requires that accommoda- for the entity to neglect to check lifts regu-
tions be made to individuals with disabilities larly and frequently, or to exhibit a pattern
who would otherwise use an inoperative ac- of lift breakdowns in service resulting in
cessibility feature. For example, when a rail stranded passengers when the lifts had not
system discovers that an elevator is out of been checked before the vehicle failed to pro-
order, blocking access to one of its stations, vide required accessibility to passengers that
it could accommodate users of the station by day.
announcing the problem at other stations to When a lift breaks down in service, the
alert passengers and offer accessible shuttle driver must let the entity know about the
bus service around the temporarily inacces- problem by the most immediate means avail-
sible station. If a public address system were able. If the vehicle is equipped with a radio
out of order, the entity could designate per- or telephone, the driver must call in the
sonnel to provide information to customers problem on the spot. If not, then the driver
with visual impairments. would have to make a phone call at the first
opportunity (e.g., from a phone booth during
Section 37.163 Keeping Vehicle Lifts in the turnaround time at the end of the run).
Operative Condition—Public Entities It is not sufficient to wait until the end of
This section applies only to public entities. the day and report the problem when the ve-
Of course, like vehicle acquisition require- hicle returns to the barn.
ments and other provisions applying to pub- When a lift is discovered to be inoperative,
lic entities, these requirements also apply either because of an in-service failure or as
when private entities ‘‘stand in the shoes’’ of the result of a maintenance check, the enti-
public entities in contracting situations, as ty must take the vehicle out of service be-
provided in § 37.23. fore the beginning of its next service day
This section’s first requirement is that the (with the exception discussed below) and re-
entity establish a system of regular and fre- pair the lift before the vehicle is put back
quent maintenance checks of lifts sufficient into service. In the case of an in-service fail-
to determine if they are operative. ure, this means that the vehicle can con-
Vehicle and equipment maintenance is an tinue its runs on that day, but cannot start
important component of successful acces- a new service day before the lift is repaired.
sible service. In particular, an aggressive If a maintenance check in the evening after
preventive maintenance program for lifts is completion of a day’s run or in the morning
essential. Lifts remain rather delicate pieces before a day’s runs discloses the problem,
of machinery, with many moving parts, then the bus would not go into service until
which often must operate in a harsh environ- the repair had taken place.
ment of potholes, dust and gravel, variations The Department realizes that, in the years
in temperature, snow, slush, and deicing before bus fleets are completely accessible,
compounds. It is not surprising that they taking buses with lifts out of service for re-
sometimes break down. pairs in this way would probably result in an
495
inaccessible spare bus being used on the Section 37.165 Lift and Securement Use
route, but at least attention would have to
This provision applies to both public and
be paid quickly to the lift repair, resulting in
private entities.
a quicker return to service of a working ac- All people using common wheelchairs (an
cessible bus. inclusive term for mobility devices that fit
The rule provides an exception for those on lifts meeting Access Board guideline di-
situations in which there is no spare vehicle mensions—30″ by 48″ and a maximum of 600
(either accessible or inaccessible) available pounds for device and user combined—which
to take the place of the vehicle with an oper- includes three-wheeled scooters and other so-
ative lift, such that putting the latter vehi- called non-traditional mobility devices) are
cle into the shop would result in a reduction to be allowed to ride the entity’s vehicles.
of service to the public (e.g., a scheduled run Entities may require wheelchair users to
on a route could not be made). The Depart- ride in designated securement locations.
ment would emphasize that the exception That is, the entity is not required to carry
does not apply when there is any spare vehi- wheelchair users whose wheelchairs would
cle available. have to park in an aisle or other location
Where the exception does apply, the pro- where they could obstruct other persons’
vider may keep the vehicle with the inoper- passage or where they could not be secured
ative lift in service for a maximum of three or restrained. An entity’s vehicle is not re-
days (for providers operating in an area of quired to pick up a wheelchair user when the
over 50,000 population) or five days (for pro- securement locations are full, just as the ve-
viders operating in an area of 50,000 popu- hicle may pass by other passengers waiting
lation or less). After these times have at the stop if the bus is full.
elapsed, the vehicle must go into the shop, The entity may require that wheelchair
not to return until the lift is repaired. Even users make use of securement systems for
during the three- or five-day period, if an ac- their mobility devices. The entity, in other
cessible spare bus becomes available at any words, can require wheelchair users to
time, it must be used in place of the bus with ‘‘buckle up’’ their mobility devices. The en-
the inoperative lift or an inaccessible spare tity is required, on a vehicle meeting part 38
that is being used in its place. standards, to use the securement system to
In a fixed route system, if a bus is oper- secure wheelchairs as provided in that part.
ating without a working lift (either on the On other vehicles (e.g., existing vehicles
day when the lift fails in service or as the re- with securement systems which do not com-
sult of the exception discussed above) and ply with Part 38 standards), the entity must
headways between accessible buses on the provide and use a securement system to en-
route on which the vehicle is operating ex- sure that the mobility device remains within
ceed 30 minutes, the entity must accommo- the securement area. This latter require-
date passengers who would otherwise be in- ment is a mandate to use best efforts to re-
convenienced by the lack of an accessible strain or confine the wheelchair to the se-
bus. This accommodation would be by a curement area. The entity does the best it
paratransit or other special vehicle that can, given its securement technology and the
would pick up passengers with disabilities nature of the wheelchair. The Department
who cannot use the regular bus because its encourages entities with relatively less ade-
lift is inoperative. Passengers who need lifts quate securement systems on their vehicles,
in this situation would, in effect, be ADA where feasible, to retrofit the vehicles with
paratransit eligible under the second eligi- better securement systems, that can success-
bility category. However, since they would fully restrain a wide variety of wheelchairs.
have no way of knowing that the bus they It is our understanding that the cost of doing
sought to catch would not be accessible that so is not enormous.
day, the transit authority must actively pro- An entity may not, in any case, deny
vide alternative service to them. This could transportation to a common wheelchair and
be done, for example, by having a ‘‘shadow’’ its user because the wheelchair cannot be se-
accessible service available along the route cured or restrained by a vehicle’s securement
or having the bus driver call in the minute system, to the entity’s satisfaction.
he saw an accessible passenger he could not Entities have often recommended or re-
pick up (including the original passenger quired that a wheelchair user transfer out of
stranded by an in-service lift failure), with a his or her own device into a vehicle seat.
short (i.e., less than 30-minute) response Under this rule, it is no longer permissible to
from an accessible vehicle dispatched to pick require such a transfer. The entity may pro-
up the stranded passenger. To minimize vide information on risks and make a rec-
problems in providing such service, when a ommendation with respect to transfer, but
transit authority is using the ‘‘no spare vehi- the final decision on whether to transfer is
cles’’ exception, the entity could place the up to the passenger.
vehicle with the inoperative lift on a route The entity’s personnel have an obligation
with headways between accessible buses to ensure that a passenger with a disability
shorter than 30 minutes. is able to take advantage of the accessibility
496
and safety features on vehicles. Con- judgmental matter best left to the local
sequently, the driver or other personnel planning process. In addition, the entity
must provide assistance with the use of lifts, must make announcements at sufficient in-
ramps, and securement devices. For example, tervals along a route to orient a visually im-
the driver must deploy the lift properly and paired passenger to his or her location. The
safely. If the passenger cannot do so inde- other required announcements may serve
pendently, the driver must assist the pas- this function in many instances, but if there
senger with using the securement device. On is a long distance between other announce-
a vehicle which uses a ramp for entry, the ments, fill-in orientation announcements
driver may have to assist in pushing a man- would be called for. The entity must an-
ual wheelchair up the ramp (particularly nounce any stop requested by a passenger
where the ramp slope is relatively steep). All with a disability, even if it does not meet
these actions my involve a driver leaving his any of the other criteria for announcement.
seat. Even in entities whose drivers tradi- When vehicles from more than one route
tionally do not leave their seats (e.g., be- serve a given stop or station, the entity must
cause of labor-management agreements or provide a means to assist an individual with
company rules), this assistance must be pro- a visual impairment or other disability in
vided. This rule overrides any requirements determining which is the proper vehicle to
to the contrary. enter. Some entities have used external
Wheelchair users—especially those using speakers. FTA is undertaking a study to de-
electric wheelchairs often have a preference termine what is the best available tech-
for entering a lift platform and vehicle in a nology in this area. Some transit properties
particular direction (e.g., backing on or have used colored mitts, or numbered cards,
going on frontwards). Except where the only to allow passengers to inform drivers of what
way of successfully maneuvering a device route they wanted to use. The idea is to pre-
onto a vehicle or into its securement area, or vent, at a stop where vehicles from a number
an overriding safety concern (i.e., a direct of routes arrive, a person with a visual im-
threat) requires one way of doing this or an- pairment from having to ask every driver
other, the transit provider should respect the whether the bus is the right one. The rule
passenger’s preference. We note that most does not prescribe what means is to be used,
electric wheelchairs are usually not equipped only that some effective means be provided.
with rearview mirrors, and that many per- Service animals shall always be permitted
sons who use them are not able to rotate to accompany their users in any private or
their heads sufficiently to see behind. When public transportation vehicle or facility. One
an electric wheelchair must back up a con- of the most common misunderstandings
siderable distance, this can have unfortunate about service animals is that they are lim-
results for other people’s toes. ited to being guide dogs for persons with vis-
People using canes or walkers and other ual impairments. Dogs are trained to assist
standees with disabilities who do not use people with a wide variety of disabilities, in-
wheelchairs but have difficulty using steps cluding individuals with hearing and mobil-
(e.g., an elderly person who can walk on a ity impairments. Other animals (e.g., mon-
plane without use of a mobility aid but can- keys) are sometimes used as service animals
not raise his or her legs sufficiently to climb as well. In any of these situations, the entity
bus steps) must also be permitted to use the must permit the service animal to accom-
lift, on request. pany its user.
Part 38 requires a variety of accessibility
Section 37.167 Other Service Requirements equipment. This section requires that the en-
The requirements in this section apply to tity use the equipment it has. For example,
both public and private entities. it would be contrary to this provision for a
On fixed route systems, the entity must transit authority to bolt its bus lifts shut be-
announce stops. These stops include transfer cause transit authority had difficulty main-
points with other fixed routes. This means taining the lifts. It does little good to have
that any time a vehicle is to stop where a a public address system on a vehicle if the
passenger can get off and transfer to another operator does not use it to make announce-
bus or rail line (or to another form of trans- ments (except, as noted above, in the situa-
portation, such as commuter rail or ferry), tion where the driver can make himself or
the stop would be announced. The announce- herself heard without recourse to amplifi-
ment can be made personally by the vehicle cation.)
operator or can be made by a recording sys- Entities must make communications and
tem. If the vehicle is small enough so that information available, using accessible for-
the operator can make himself or herself mats and technology (e.g., Braille, large
heard without a P.A. system, it is not nec- print, TDDs) to obtain information about
essary to use the system. transportation services. Someone cannot
Announcements also must be made at adequately use the bus system if schedule
major intersections or destination points. and route information is not available in a
The rule does not define what major inter- form he or she can use. If there is only one
sections or destination points are. This is a phone line on which ADA paratransit eligible
497
individuals can reserve trips, and the line is to an individual with a disability. However,
chronically busy, individuals cannot sched- since accessible private OTRBs cannot be re-
ule service. Such obstacles to the use of quired by this rule, there may be times when
transportation service are contrary to this carrying is the only available means of pro-
section. (The latter could, in some cir- viding access to an OTRB, if the entity does
cumstances, be viewed as a capacity con- not exercise its discretion to provide an al-
straint.) ternative means. It is required by the rule
It is inconsistent with this section for a
that any employee who provides boarding as-
transit provider to refuse to let a passenger
sistance—above all, who may carry or other-
use a lift at any designated stop, unless the
lift is physically unable to deploy or the lift wise directly physically assist a passenger—
would be damaged if it did deploy (see dis- must be trained to provide this assistance
cussion under § 37.123). In addition, if a tem- appropriately and safely.
porary situation at the stop (e.g., construc- The baggage priority provision for wheel-
tion, an accident, a landslide) made the stop chairs and other assistive devices involves a
unsafe for anyone to use, the provider could similar procedure to that established in the
decline to operate the lift there (just as it re- Department’s Air Carrier Access Act rule (14
fused to open the door for other passengers CFR part 382). In brief, it provides that, at
at the same point). The provider could not, any given stop, a person with a wheelchair or
however, declare a stop ‘‘off limits’’ to per- other assistive device would have the device
sons with disabilities that is used for other loaded before other items at this stop. An in-
persons. If the transit authority has con- dividual traveling with a wheelchair is not
cerns about barriers or safety hazards that similarly situated to a person traveling with
peculiarly affect individuals with disabilities
luggage. For the wheelchair user, the wheel-
that would use the stop, it should consider
chair is an essential mobility device, with-
making efforts to move the stop.
Under DOT hazardous materials rules, a out which travel is impossible. The rationale
passenger may bring a portable medical oxy- of this provision is that, while no one wants
gen supply on board a vehicle. Since the haz- his or her items left behind, carrying the
ardous materials rules permit this, transit wheelchair is more important to its user
providers cannot prohibit it. For further in- than ordinary luggage to a traveler. If it
formation on hazardous materials rules, as comes to an either/or choice (the wheelchair
they may affect transportation of assistive user’s luggage would not have any priority
devices, entities may contact the Depart- over other luggage, however). There would be
ment’s Research and Special Programs Ad- no requirement, under this provision, for
ministration, Office of Hazardous Materials ‘‘bumping’’ baggage already on the bus from
Transportation (202–366–0656). previous stops in order to make room for the
One concern that has been expressed is wheelchair.
that transportation systems (particularly The entity could require advance notice
some rail systems) may make it difficult for
from a passenger in only one circumstance.
persons with disabilities to board or dis-
If a passenger needed boarding assistance,
embark from vehicles by very rapidly closing
doors on the vehicles before individuals with the entity could require up to 48 hours’ ad-
disabilities (who may move more slowly vance notice for the purpose of providing
through crowds in the vehicle or platform needed assistance. While advance notice re-
than other persons) have a chance to get on quirements are generally undesirable, this
or off the vehicle. Doing so is contrary to the appears to be a case in which a needed ac-
rule; operators must make appropriate provi- commodation may be able to be provided
sion to give individuals with disabilities ade- successfully only if the transportation pro-
quate time to board or disembark. vider knows in advance that some extra
staffing is needed to accomplish it. While the
Section 37.169 Interim Requirements for Over- primary need for advance notice appears to
the-Road Bus Service Operated by Private En-
be in the situation of an unstaffed station,
tities
there could be other situations in which ad-
Private over-the-road bus (OTRB) service vance notice was needed in order to ensure
is, first of all, subject to all the other private that the accommodation could be made. En-
entity requirements of the rule. The require- tities should not ask for advance notice in
ments of this section are in addition to the all cases, but just in those cases in which it
other applicable provisions. is really needed for this purpose. Even if ad-
Boarding assistance is required. The De-
vance notice is not provided, the entity has
partment cannot require any particular
the obligation to provide boarding assistance
boarding assistance devices at this time.
Each operator may decide what mode of if it can be provided with available staff.
boarding assistance is appropriate for its op-
eration. We agree with the discussion in the
DOJ Title II rule’s preamble that carrying is
a disfavored method of providing assistance
498
Section 37.171 Equivalency Requirement for dividuals with disabilities, does not meet the
Demand Responsive Service Operated by Pri- standard of being trained to proficiency.
vate Entities Not Primarily in the Business of Third, training must be appropriate to the
Transporting People duties of each employee. A paratransit dis-
This provision is a service requirement patcher probably must know how to use a
closely related to the private entity require- TDD and enough about various disabilities
ments for §§ 37.101–37.105 of this part. Entities to know what sort of vehicle to dispatch. A
in this category are always required to pro- bus driver must know how to operate lifts
vide equivalent service, regardless of what and securement devices properly. A me-
they are doing with respect to the acquisi- chanic who works on lifts must know how to
tion of vehicles. The effect of this provision maintain them. Cross-training, while useful
may be to require some entities to arrange, in some instances, is not required, so long as
either through acquiring their own acces- each employee is trained to proficiency in
sible vehicles or coordinating with other pro- what he or she does with respect to service
viders, to have accessible vehicles available to individuals with disabilities.
to meet the equivalency standards of § 37.105 Fourth, the training requirement goes
or otherwise to comply with those standards. both to technical tasks and human relations.
Employees obviously need to know how to
Section 37.173 Training
run equipment the right way. If an employee
A well-trained workforce is essential in en- will be assisting wheelchair users in trans-
suring that the accessibility-related equip- ferring from a wheelchair to a vehicle seat,
ment and accommodations required by the the employee needs training in how to do
ADA actually result in the delivery of good this safely. But every public contact em-
transportation service to individuals with ployee also has to understand the necessity
disabilities. The utility of training was rec- of treating individuals with disabilities cour-
ognized by Congress as well. (See S. Rept. teously and respectfully, and the details of
100–116 at 48.) At the same time, we believe what that involves.
that training should be conducted in an effi- One of the best sources of information on
cient and effective manner, with appropriate
how best to train personnel to interact ap-
flexibility allowed to the organizations that
propriately with individuals with disabilities
must carry it out. Each transportation pro-
vider is to design a training program which is the disability community itself. Con-
suits the needs of its particular operation. sequently, the Department urges entities to
While we are confident of this approach, we consult with disability organizations con-
are mindful that the apparent lack of train- cerning how to train their personnel. Involv-
ing has been a source of complaint to FTA ing these groups in the process of estab-
and transit providers. Good training is dif- lishing training programs, in addition to pro-
ficult and it is essential. viding useful information, should help to es-
Several points of this section deserve em- tablish or improve working relationships
phasis. First, the requirements for training among transit providers and disability
apply to private as well as to public pro- groups that, necessarily, will be of long dura-
viders, of demand responsive as well as of tion. We note that several transit providers
fixed route service. Training is just as nec- use persons with disabilities to provide the
essary for the driver of a taxicab, a hotel actual training. Others have reported that
shuttle, or a tour bus as it is for a driver in role playing is an effective method to instill
an FTA-funded city bus system. an appreciation of the particular perspective
Second, training must be to proficiency. of one traveling with a disability.
The Department is not requiring a specific Finally, one of the important points in
course of training or the submission of a training concerns differences among individ-
training plan for DOT approval. However, uals with disabilities. All individuals with
every employee of a transportation provider disabilities, of course, are not alike. The ap-
who is involved with service to persons with propriate ways one deals with persons with
disabilities must have been trained so that
various kinds of disabilities (e.g., mobility,
he or she knows what needs to be done to
vision, hearing, or mental impairments) are
provide the service in the right way. When it
comes to providing service to individuals likely to differ and, while no one expects bus
with disabilities, ignorance is no excuse for drivers to be trained as disability specialists,
failure. recognizing relevant differences and respond-
While there is no specific requirement for ing to them appropriately is extremely sig-
recurrent or refresher training, there is an nificant. Public entities who contract with
obligation to ensure that, at any given time, private entities to have service provided—
employees are trained to proficiency. An em- above all, complementary paratransit—are
ployee who has forgotten what he was told in responsible for ensuring that contractor per-
past training sessions, so that he or she does sonnel receive the appropriate training.
not know what needs to be done to serve in-
499
Appendix A to Part 37—Standards for Accessible the distance which wheelchair users and
Transportation Facilities other persons who cannot negotiate steps
may have to travel compared to the general
Sections 504(a) and (b) of the Americans
public.’’ This concept, in our view, is im-
with Disabilities Act (ADA) require the Ac-
plicit in the language of § 206.3. However, we
cess Board to adopt accessibility guidelines;
believe it is useful to make explicit the con-
sections 204(c) and 306(c) of the ADA require
cept that, in transportation facilities such as
the Department of Transportation to adopt
rail stations, important facility elements are
regulatory standards ‘‘consistent with the
placed so as to minimize the distance per-
minimum guidelines and requirements’’
sons with disabilities must travel to use
issued by the Access Board. In the original
them. This requirement is intended to affect
1991 publication of part 37, the Department
decisions about where to locate entrances,
complied with this requirement by reproduc-
boarding locations (e.g., where a mini-high
ing the Access Board’s Americans with Dis-
platform is used for boarding), and other key
abilities Act Accessibility Guidelines
elements of a facility.
(ADAAG) in their entirety as Appendix A.
The Access Board revised ADAAG in July Section 406.8
2004. ADAAG, including technical amend-
ments issued in July 2005, is codified in Ap- To maintain the status quo with respect to
pendices B and D to 36 CFR part 1191. In detectable warnings in pedestrian facilities,
order to avoid duplication of material that the Department is adding a provision (not
the Access Board has already included in the found in the current version of the new
CFR, and which is now readily available on ADAAG) requiring curb ramps to have de-
the Internet, the Department has adopted tectable warnings.
ADAAG by cross-reference in part 37, rather
than reproducing the lengthy Access Board Section 810.2.2
publication. However, there are certain pro- The Department recognizes that there will
visions of ADAAG that the Department is be some situations in which the full dimen-
modifying for clarity or to preserve require- sions of a bus boarding and alighting area
ments that have been in effect under the ex- complying with the § 810.2.2 may not be able
isting standards. Under the ADA, the Depart- to be achieved (e.g., there is less than 96
ment, in adopting standards, has the discre- inches of perpendicular space available from
tion to depart from the language of ADAAG the curb or roadway edge, because of build-
as long as the Department’s standards re- ings or terrain features). The Department is
main consistent with the Access Board’s adding language from former § 37.9 (c) of this
minimum guidelines. In addition, this appen- part, which provides that ‘‘Public entities
dix provides additional guidance concerning shall ensure the construction of bus boarding
some sections of the DOT standards as they and alighting areas comply with 810.2.2, to
apply to transportation facilities. the extent the construction specifications
are within their control.’’ Where it is not
Section 201.1
feasible to fully comply with § 810.2.2, the De-
The basic scoping requirement requires all partment expects compliance to the greatest
areas of newly designed and newly con- extent feasible.
structed buildings and facilities to be acces- We note that there may be some instances
sible. Former § 4.1.1(5) provided a ‘‘structural in which it will be necessary to make oper-
impracticability’’ exception to the require- ational adjustments where sufficient clear-
ments for new buildings and facilities. The ance is not available to permit the deploy-
Access Board deleted this exception to avoid ment of lifts or ramps on vehicles. For exam-
duplication with an existing requirement to ple, a bus driver could position the bus at a
the same effect in Department of Justice nearby point—even if not the precise loca-
regulations (see 28 CFR § 36.401(c)). For con- tion of the designated stop—so that a pas-
sistency with the approach taken by the Ac- senger needing a lift or ramp to get on or off
cess Board and Department of Justice, and the bus can do so. To avoid the need for such
to ensure consistency between facilities sub- operational adjustments, it is important to
ject to Titles II and III of the ADA under place bus shelters, signs, etc. so that they do
part 37, the Department has added the lan- not intrude into the required clearances.
guage of the Department of Justice regula-
tion to § 37.41 of this part. Section 810.5.3
This section concerns coordination be-
Section 206.3
tween rail platforms and rail vehicles. The
This section concerns the location of ac- Department is adding language from the
cessible paths. The Department is retaining former § 10.3.1 (9) (Exception 2), which pro-
language from former § 10.3.1(1), which provides that ‘‘In light rail, commuter rail, and
vides that ‘‘Elements such as ramps, ele- intercity rail systems where it is not oper-
vators, or other circulation devices, fare ationally or structurally feasible to meet the
vending or other ticketing areas, and fare horizontal gap or vertical difference require-
collection areas shall be placed to minimize ments, mini-high platforms, car-borne or
500
platform-mounted lifts, ramps or bridge level platforms are prohibited or that low-
plates or similarly manually deployed de- level platforms are the only design con-
vices, meeting the requirements of 49 CFR sistent with the rules. It simply means that
Part 38 shall be permitted.’’ where low-level platforms are otherwise per-
In September 2005, the Department issued mitted, such platforms must be at least 8
guidance concerning the relationship of its inches above the top of rail, except where ve-
ADA and 504 rules in the context of rail plat- hicles are boarded from the street or a side-
form accessibility This guidance emphasized walk.
that access to all cars of a train is signifi-
cant because, if passengers with disabilities [56 FR 45621, Sept. 6, 1991, as amended at 61
are unable to enter all cars from the plat- FR 25416, May 21, 1996; 71 FR 63266, Oct. 30,
form, the passengers will have access only to 2006]
segregated service. This would be incon-
sistent with the nondiscrimination mandate PART 38—AMERICANS WITH DIS-
of the ADA. It would also, in the case of Fed-
eral Transit Administration (FTA) and Fed- ABILITIES ACT (ADA) ACCESSI-
eral Railroad Administration (FRA)-assisted BILITY SPECIFICATIONS FOR
projects (including Amtrak), be inconsistent TRANSPORTATION VEHICLES
with the requirement of the Department’s
section 504 regulation (49 CFR § 27.7), which Subpart A—General
requires service in the most integrated set-
ting reasonably achievable. This guidance Sec.
states the Department’s views of the mean- 38.1 Purpose.
ing of its existing rules, and the Department 38.2 Equivalent facilitation.
will continue to use this guidance in apply-
38.3 Definitions.
ing the provisions of this rule.
The Department notes that a related sec- 38.4 Miscellaneous instructions.
tion of 49 CFR part 38 has been the source of
some misunderstanding. Section 38.71(b)(2) Subpart B—Buses, Vans and Systems
provides that ‘‘Vehicles designed for, and op-
38.21 General.
erated on, pedestrian malls, city streets, or
other areas where level-entry boarding is not 38.23 Mobility aid accessibility.
practicable shall provide wayside or car- 38.25 Doors, steps and thresholds.
borne lifts, mini-high platforms, or other 38.27 Priority seating signs.
means of access in compliance with § 38.83 (b) 38.29 Interior circulation, handrails and
or (c) of this part.’’ The Department has re- stanchions.
ceived some suggestions that this provision 38.31 Lighting.
should be interpreted to mean that, if there 38.33 Fare box.
is any portion of a system in which level- 38.35 Public information system.
entry boarding is not practicable, then the 38.37 Stop request.
entire system can use some method other 38.39 Destination and route signs.
than level-entry boarding. Such an interpre-
tation is incorrect. The authority to use al- Subpart C—Rapid Rail Vehicles and
ternatives to level-entry boarding pertains Systems
only to those portions of a system in which
rail vehicles are ‘‘operated on’’ an area 38.51 General.
where level-entry boarding is not prac- 38.53 Doorways.
ticable. 38.55 Priority seating signs.
For example, suppose a light rail system’s
38.57 Interior circulation, handrails and
first three stops are on a pedestrian/transit
stanchions.
mall where it is infeasible to provide level-
38.59 Floor surfaces.
entry boarding. The transit system could use
car-borne lifts, mini-high platforms, etc. to 38.61 Public information system.
provide access at those three stops. The sys- 38.63 Between-car barriers.
tem’s next ten stops are part of a right-of-
way in which level-entry boarding is prac- Subpart D—Light Rail Vehicles and Systems
ticable. In such a case, level-entry boarding
38.71 General.
would have to be provided at those ten stops.
There is nothing inappropriate about the 38.73 Doorways.
same system having different means of 38.75 Priority seating signs.
boarding in different locations, in such a 38.77 Interior circulation, handrails and
case. stanchions.
We also caution against a potential mis- 38.79 Floors, steps and thresholds.
understanding of the sentence in § 810.5.3 38.81 Lighting.
that provides that ‘‘Low-level platforms 38.83 Mobility aid accessibility.
shall be 8 inches minimum (205 mm) above 38.85 Between-car barriers.
top of rail.’’ This does not mean that high- 38.87 Public information system.
501
Subpart E—Commuter Rail Cars and abilities Act (ADA) of 1990 (42 U.S.C.
Systems 1201 et seq.).
38.91 General. § 38.2 Equivalent facilitation.
38.93 Doorways.
38.95 Mobility aid accessibility. Departures from particular technical
38.97 Interior circulation, handrails and and scoping requirements of these
stanchions. guidelines by use of other designs and
38.99 Floors, steps and thresholds. technologies are permitted where the
38.101 Lighting.
38.103 Public information system. alternative designs and technologies
38.105 Priority seating signs. used will provide substantially equiva-
38.107 Restrooms. lent or greater access to and usability
38.109 Between-car barriers. of the vehicle. Departures are to be
considered on a case-by-case basis
Subpart F—Intercity Rail Cars and Systems under procedures set forth in § 37.7 of
38.111 General. this title.
38.113 Doorways.
38.115 Interior circulation, handrails and § 38.3 Definitions.
stanchions.
See § 37.3 of this title.
38.117 Floors, steps and thresholds.
38.119 Lighting.
38.121 Public information system. § 38.4 Miscellaneous instructions.
38.123 Restrooms. (a) Dimensional conventions. Dimen-
38.125 Mobility aid accessibility. sions that are not noted as minimum
38.127 Sleeping compartments.
or maximum are absolute.
Subpart G—Over-the-Road Buses and (b) Dimensional tolerances. All dimen-
Systems sions are subject to conventional engi-
neering tolerances for material prop-
38.151 General. erties and field conditions, including
38.153 Doors, steps and thresholds. normal anticipated wear not exceeding
38.155 Interior circulation, handrails and
stanchions.
accepted industry-wide standards and
38.157 Lighting. practices.
38.159 Mobility aid accessibility. (c) Notes. The text of these guidelines
38.161 Moveable aisle armrests. does not contain notes or footnotes.
Additional information, explanations,
Subpart H—Other Vehicles and Systems and advisory materials are located in
38.171 General. the Appendix.
38.173 Automated guideway transit vehicles (d) General terminology. (1) Comply
and systems. with means meet one or more specifica-
38.175 High-speed rail cars, monorails and tion of these guidelines.
systems. (2) If or if * * * then denotes a speci-
38.177 Ferries, excursion boats and other
vessels. [Reserved]
fication that applies only when the
38.179 Trams, and similar vehicles, and sys- conditions described are present.
tems. (3) May denotes an option or alter-
FIGURES TO PART 38 native.
APPENDIX TO PART 38—GUIDANCE MATERIAL (4) Shall denotes a mandatory speci-
AUTHORITY: 42 U.S.C. 12101–12213; 49 U.S.C. fication or requirement.
322. (5) Should denotes an advisory speci-
fication or recommendation.
SOURCE: 56 FR 45756, Sept. 6, 1991, unless
otherwise noted.
Subpart B—Buses, Vans and
Subpart A—General Systems
§ 38.1 Purpose. § 38.21 General.
This part provides minimum guide- (a) New, used or remanufactured
lines and requirements for accessibility buses and vans (except over-the-road
standards in part 37 of this title for buses covered by subpart G of this
transportation vehicles required to be part), to be considered accessible by
accessible by the Americans With Dis- regulations in part 37 of this title shall
502
comply with the applicable provisions tact type requiring continuous manual
of this subpart. pressure by the operator and shall not
(b) If portions of the vehicle are allow improper lift sequencing when
modified in a way that affects or could the lift platform is occupied. The con-
affect accessibility, each such portion trols shall allow reversal of the lift op-
shall comply, to the extent practicable, eration sequence, such as raising or
with the applicable provisions of this lowering a platform that is part way
subpart. This provision does not re- down, without allowing an occupied
quire that inaccessible buses be retro- platform to fold or retract into the
fitted with lifts, ramps or other board- stowed position.
ing devices. (ii) Exception. Where the lift is de-
signed to deploy with its long dimen-
§ 38.23 Mobility aid accessibility. sion parallel to the vehicle axis and
(a) General. All vehicles covered by which pivots into or out of the vehicle
this subpart shall provide a level- while occupied (i.e., ‘‘rotary lift’’), the
change mechanism or boarding device requirements of this paragraph prohib-
(e.g., lift or ramp) complying with iting the lift from being stowed while
paragraph (b) or (c) of this section and occupied shall not apply if the stowed
sufficient clearances to permit a wheel- position is within the passenger com-
chair or other mobility aid user to partment and the lift is intended to be
reach a securement location. At least stowed while occupied.
two securement locations and devices, (3) Emergency operation. The lift shall
complying with paragraph (d) of this incorporate an emergency method of
section, shall be provided on vehicles deploying, lowering to ground level
in excess of 22 feet in length; at least with a lift occupant, and raising and
one securement location and device, stowing the empty lift if the power to
complying with paragraph (d) of this the lift fails. No emergency method,
section, shall be provided on vehicles 22 manual or otherwise, shall be capable
feet in length or less. of being operated in a manner that
(b) Vehicle lift—(1) Design load. The could be hazardous to the lift occupant
design load of the lift shall be at least or to the operator when operated ac-
600 pounds. Working parts, such as ca- cording to manufacturer’s instructions,
bles, pulleys, and shafts, which can be and shall not permit the platform to be
expected to wear, and upon which the stowed or folded when occupied, unless
lift depends for support of the load, the lift is a rotary lift and is intended
shall have a safety factor of at least to be stowed while occupied.
six, based on the ultimate strength of (4) Power or equipment failure. Plat-
the material. Nonworking parts, such forms stowed in a vertical position, and
as platform, frame, and attachment deployed platforms when occupied,
hardware which would not be expected shall have provisions to prevent their
to wear, shall have a safety factor of at deploying, falling, or folding any faster
least three, based on the ultimate than 12 inches/second or their dropping
strength of the material. of an occupant in the event of a single
(2) Controls—(i) Requirements. The failure of any load carrying compo-
controls shall be interlocked with the nent.
vehicle brakes, transmission, or door, (5) Platform barriers. The lift platform
or shall provide other appropriate shall be equipped with barriers to pre-
mechanisms or systems, to ensure that vent any of the wheels of a wheelchair
the vehicle cannot be moved when the or mobility aid from rolling off the
lift is not stowed and so the lift cannot platform during its operation. A mov-
be deployed unless the interlocks or able barrier or inherent design feature
systems are engaged. The lift shall de- shall prevent a wheelchair or mobility
ploy to all levels (i.e., ground, curb, aid from rolling off the edge closest to
and intermediate positions) normally the vehicle until the platform is in its
encountered in the operating environ- fully raised position. Each side of the
ment. Where provided, each control for lift platform which extends beyond the
deploying, lowering, raising, and stow- vehicle in its raised position shall have
ing the lift and lowering the roll-off a barrier a minimum 11⁄2 inches high.
barrier shall be of a momentary con- Such barriers shall not interfere with
503
maneuvering into or out of the aisle. beveled with a slope no greater than
The loading-edge barrier (outer bar- 1:2.
rier) which functions as a loading ramp (9) Platform deflection. The lift plat-
when the lift is at ground level, shall form (not including the entrance ramp)
be sufficient when raised or closed, or a shall not deflect more than 3 degrees
supplementary system shall be pro- (exclusive of vehicle roll or pitch) in
vided, to prevent a power wheelchair or any direction between its unloaded po-
mobility aid from riding over or defeat- sition and its position when loaded
ing it. The outer barrier of the lift with 600 pounds applied through a 26
shall automatically raise or close, or a inch by 26 inch test pallet at the cen-
supplementary system shall automati- troid of the platform.
cally engage, and remain raised, (10) Platform movement. No part of the
closed, or engaged at all times that the platform shall move at a rate exceed-
platform is more than 3 inches above ing 6 inches/second during lowering and
the roadway or sidewalk and the plat- lifting an occupant, and shall not ex-
form is occupied. Alternatively, a bar- ceed 12 inches/second during deploying
rier or system may be raised, lowered, or stowing. This requirement does not
opened, closed, engaged, or disengaged apply to the deployment or stowage cy-
by the lift operator, provided an inter- cles of lifts that are manually deployed
lock or inherent design feature pre- or stowed. The maximum platform hor-
vents the lift from rising unless the izontal and vertical acceleration when
barrier is raised or closed or the sup- occupied shall be 0.3g.
plementary system is engaged. (11) Boarding direction. The lift shall
permit both inboard and outboard fac-
(6) Platform surface. The platform sur-
ing of wheelchair and mobility aid
face shall be free of any protrusions
users.
over 1⁄4 inch high and shall be slip re-
(12) Use by standees. Lifts shall ac-
sistant. The platform shall have a min-
commodate persons using walkers,
imum clear width of 281⁄2 inches at the
crutches, canes or braces or who other-
platform, a minimum clear width of 30
wise have difficulty using steps. The
inches measured from 2 inches above
platform may be marked to indicate a
the platform surface to 30 inches above
preferred standing position.
the platform, and a minimum clear
(13) Handrails. Platforms on lifts
length of 48 inches measured from 2 shall be equipped with handrails on two
inches above the surface of the plat- sides, which move in tandem with the
form to 30 inches above the surface of lift, and which shall be graspable and
the platform. (See Fig. 1) provide support to standees throughout
(7) Platform gaps. Any openings be- the entire lift operation. Handrails
tween the platform surface and the shall have a usable component at least
raised barriers shall not exceed 5⁄8 inch 8 inches long with the lowest portion a
in width. When the platform is at vehi- minimum 30 inches above the platform
cle floor height with the inner barrier and the highest portion a maximum 38
(if applicable) down or retracted, gaps inches above the platform. The hand-
between the forward lift platform edge rails shall be capable of withstanding a
and the vehicle floor shall not exceed 1⁄2 force of 100 pounds concentrated at any
inch horizontally and 5⁄8 inch point on the handrail without perma-
vertically. Platforms on semi-auto- nent deformation of the rail or its sup-
matic lifts may have a hand hold not porting structure. The handrail shall
exceeding 11⁄2 inches by 41⁄2 inches lo- have a cross-sectional diameter be-
cated between the edge barriers. tween 11⁄4 inches and 11⁄2 inches or shall
(8) Platform entrance ramp. The en- provide an equivalent grasping surface,
trance ramp, or loading-edge barrier and have eased edges with corner radii
used as a ramp, shall not exceed a slope of not less than 1⁄8 inch. Handrails shall
of 1:8, measured on level ground, for a be placed to provide a minimum 11⁄2
maximum rise of 3 inches, and the inches knuckle clearance from the
transition from roadway or sidewalk to nearest adjacent surface. Handrails
ramp may be vertical without edge shall not interfere with wheelchair or
treatment up to 1⁄4 inch. Thresholds be- mobility aid maneuverability when en-
tween 1⁄4 inch and 1⁄2 inch high shall be tering or leaving the vehicle.
504
(c) Vehicle ramp—(1) Design load. (7) Stowage. A compartment, secure-

Ramps 30 inches or longer shall support ment system, or other appropriate
a load of 600 pounds, placed at the cen- method shall be provided to ensure
troid of the ramp distributed over an that stowed ramps, including portable
area of 26 inches by 26 inches, with a ramps stowed in the passenger area, do
safety factor of at least 3 based on the not impinge on a passenger’s wheel-
ultimate strength of the material. chair or mobility aid or pose any haz-
Ramps shorter than 30 inches shall sup- ard to passengers in the event of a sud-
port a load of 300 pounds. den stop or maneuver.
(2) Ramp surface. The ramp surface (8) Handrails. If provided, handrails
shall be continuous and slip resistant; shall allow persons with disabilities to
shall not have protrusions from the grasp them from outside the vehicle
surface greater than 1⁄4 inch high; shall while starting to board, and to con-
have a clear width of 30 inches; and tinue to use them throughout the
shall accommodate both four-wheel boarding process, and shall have the
and three-wheel mobility aids. top between 30 inches and 38 inches
(3) Ramp threshold. The transition above the ramp surface. The handrails
from roadway or sidewalk and the shall be capable of withstanding a force
transition from vehicle floor to the of 100 pounds concentrated at any point
ramp may be vertical without edge on the handrail without permanent de-
treatment up to 1⁄4 inch. Changes in formation of the rail or its supporting
level between 1⁄4 inch and 1⁄2 inch shall structure. The handrail shall have a
be beveled with a slope no greater than cross-sectional diameter between 11⁄4
1:2. inches and 11⁄2 inches or shall provide
(4) Ramp barriers. Each side of the an equivalent grasping surface, and
ramp shall have barriers at least 2 have eased edges with corner radii of
inches high to prevent mobility aid not less than 1⁄8 inch. Handrails shall
wheels from slipping off. not interfere with wheelchair or mobil-
(5) Slope. Ramps shall have the least ity aid maneuverability when entering
slope practicable and shall not exceed or leaving the vehicle.
1:4 when deployed to ground level. If (d) Securement devices—(1) Design load.
the height of the vehicle floor from Securement systems on vehicles with
which the ramp is deployed is 3 inches GVWRs of 30,000 pounds or above, and
or less above a 6-inch curb, a maximum their attachments to such vehicles,
slope of 1:4 is permitted; if the height shall restrain a force in the forward
of the vehicle floor from which the longitudinal direction of up to 2,000
ramp is deployed is 6 inches or less, but pounds per securement leg or clamping
greater than 3 inches, above a 6-inch mechanism and a minimum of 4,000
curb, a maximum slope of 1:6 is per- pounds for each mobility aid. Secure-
mitted; if the height of the vehicle ment systems on vehicles with GVWRs
floor from which the ramp is deployed of up to 30,000 pounds, and their attach-
is 9 inches or less, but greater than 6 ments to such vehicles, shall restrain a
inches, above a 6-inch curb, a max- force in the forward longitudinal direc-
imum slope of 1:8 is permitted; if the tion of up to 2,500 pounds per secure-
height of the vehicle floor from which ment leg or clamping mechanism and a
the ramp is deployed is greater than 9 minimum of 5,000 pounds for each mo-
inches above a 6-inch curb, a slope of bility aid.
1:12 shall be achieved. Folding or tele- (2) Location and size. The securement
scoping ramps are permitted provided system shall be placed as near to the
they meet all structural requirements accessible entrance as practicable and
of this section. shall have a clear floor area of 30
(6) Attachment. When in use for board- inches by 48 inches. Such space shall
ing or alighting, the ramp shall be adjoin, and may overlap, an access
firmly attached to the vehicle so that path. Not more than 6 inches of the re-
it is not subject to displacement when quired clear floor space may be accom-
loading or unloading a heavy power modated for footrests under another
mobility aid and that no gap between seat provided there is a minimum of 9
vehicle and ramp exceeds 5⁄8 inch. inches from the floor to the lowest part
505
of the seat overhanging the space. Se- (7) Seat belt and shoulder harness. For
curement areas may have fold-down each wheelchair or mobility aid secure-
seats to accommodate other passengers ment device provided, a passenger seat
when a wheelchair or mobility aid is belt and shoulder harness, complying
not occupying the area, provided the with all applicable provisions of part
seats, when folded up, do not obstruct 571 of this title, shall also be provided
the clear floor space required. (See Fig. for use by wheelchair or mobility aid
2) users. Such seat belts and shoulder
(3) Mobility aids accommodated. The harnesses shall not be used in lieu of a
securement system shall secure com- device which secures the wheelchair or
mon wheelchairs and mobility aids and mobility aid itself.
shall either be automatic or easily at-
tached by a person familiar with the § 38.25 Doors, steps and thresholds.
system and mobility aid and having av- (a) Slip resistance. All aisles, steps,
erage dexterity. floor areas where people walk and
(4) Orientation. In vehicles in excess floors in securement locations shall
of 22 feet in length, at least one secure- have slip-resistant surfaces.
ment device or system required by (b) Contrast. All step edges, thresh-
paragraph (a) of this section shall se- olds and the boarding edge of ramps or
cure the wheelchair or mobility aid lift platforms shall have a band of
facing toward the front of the vehicle. color(s) running the full width of the
Additional securement devices or sys- step or edge which contrasts from the
tems shall secure the wheelchair or step tread and riser, or lift or ramp
mobility aid facing forward, or rear- surface, either light-on-dark or dark-
ward with a padded barrier, extending on-light.
from a height of 38 inches from the ve- (c) Door height. For vehicles in excess
hicle floor to a height of 56 inches from of 22 feet in length, the overhead clear-
the vehicle floor with a width of 18 ance between the top of the door open-
inches, laterally centered immediately ing and the raised lift platform, or
in back of the seated individual. In ve- highest point of a ramp, shall be a min-
hicles 22 feet in length or less, the re- imum of 68 inches. For vehicles of 22
quired securement device may secure feet in length or less, the overhead
the wheelchair or mobility aid either clearance between the top of the door
facing toward the front of the vehicle opening and the raised lift platform, or
or facing rearward, with a padded bar- highest point of a ramp, shall be a min-
rier as described. Additional secure- imum of 56 inches.
ment locations shall be either forward
or rearward facing with a padded bar- § 38.27 Priority seating signs.
rier. Such barriers need not be solid (a) Each vehicle shall contain sign(s)
provided equivalent protection is af- which indicate that seats in the front
forded. of the vehicle are priority seats for per-
(5) Movement. When the wheelchair or sons with disabilities, and that other
mobility aid is secured in accordance passengers should make such seats
with manufacturer’s instructions, the available to those who wish to use
securement system shall limit the them. At least one set of forward-fac-
movement of an occupied wheelchair or ing seats shall be so designated.
mobility aid to no more than 2 inches (b) Each securement location shall
in any direction under normal vehicle have a sign designating it as such.
operating conditions. (c) Characters on signs required by
(6) Stowage. When not being used for paragraphs (a) and (b) of this section
securement, or when the securement shall have a width-to-height ratio be-
area can be used by standees, the se- tween 3:5 and 1:1 and a stroke width-to-
curement system shall not interfere height ratio between 1:5 and 1:10, with
with passenger movement, shall not a minimum character height (using an
present any hazardous condition, shall upper case ‘‘X’’) of 5⁄8 inch, with ‘‘wide’’
be reasonably protected from van- spacing (generally, the space between
dalism, and shall be readily accessed letters shall be 1⁄16 the height of upper
when needed for use. case letters), and shall contrast with
506
the background either light-on-dark or must be passed by a wheelchair or mo-

dark-on-light. bility aid user entering the vehicle, the
platform, to the maximum extent prac-
§ 38.29 Interior circulation, handrails ticable, shall not extend into the aisle
and stanchions. or vestibule beyond the wheel housing.
(a) Interior handrails and stanchions (f) For vehicles in excess of 22 feet in
shall permit sufficient turning and ma- length, the minimum interior height
neuvering space for wheelchairs and along the path from the lift to the se-
other mobility aids to reach a secure- curement location shall be 68 inches.
ment location from the lift or ramp. For vehicles of 22 feet in length or less,
(b) Handrails and stanchions shall be the minimum interior height from lift
provided in the entrance to the vehicle to securement location shall be 56
in a configuration which allows persons inches.
with disabilities to grasp such assists
from outside the vehicle while starting § 38.31 Lighting.
to board, and to continue using such (a) Any stepwell or doorway imme-
assists throughout the boarding and diately adjacent to the driver shall
fare collection process. Handrails shall have, when the door is open, at least 2
have a cross-sectional diameter be- foot-candles of illumination measured
tween 11⁄4 inches and 11⁄2 inches or shall on the step tread or lift platform.
provide an equivalent grasping surface, (b) Other stepwells and doorways, in-
and have eased edges with corner radii cluding doorways in which lifts or
of not less than 1⁄8 inch. Handrails shall ramps are installed, shall have, at all
be placed to provide a minimum 11⁄2 times, at least 2 foot-candles of illu-
inches knuckle clearance from the mination measured on the step tread,
nearest adjacent surface. Where on- or lift or ramp, when deployed at the
board fare collection devices are used vehicle floor level.
on vehicles in excess of 22 feet in (c) The vehicle doorways, including
length, a horizontal passenger assist doorways in which lifts or ramps are
shall be located across the front of the installed, shall have outside light(s)
vehicle and shall prevent passengers which, when the door is open, provide
from sustaining injuries on the fare at least 1 foot-candle of illumination
collection device or windshield in the on the street surface for a distance 3
event of a sudden deceleration. With- feet (915 mm) perpendicular to the bot-
out restricting the vestibule space, the tom step tread or lift outer edge. Such
assist shall provide support for a board- light(s) shall be shielded to protect the
ing passenger from the front door eyes of entering and exiting pas-
through the boarding procedure. Pas- sengers.
sengers shall be able to lean against
the assist for security while paying [56 FR 45756, Sept. 6, 1991, as amended at 63
fares. FR 51697, 51702, Sept. 28, 1998]
(c) For vehicles in excess of 22 feet in
§ 38.33 Fare box.
length, overhead handrail(s) shall be
provided which shall be continuous ex- Where provided, the farebox shall be
cept for a gap at the rear doorway. located as far forward as practicable
(d) Handrails and stanchions shall be and shall not obstruct traffic in the
sufficient to permit safe boarding, on- vestibule, especially wheelchairs or
board circulation, seating and standing mobility aids.
assistance, and alighting by persons
with disabilities. § 38.35 Public information system.
(e) For vehicles in excess of 22 feet in (a) Vehicles in excess of 22 feet in
length with front-door lifts or ramps, length, used in multiple-stop, fixed-
vertical stanchions immediately be- route service, shall be equipped with a
hind the driver shall either terminate public address system permitting the
at the lower edge of the aisle-facing driver, or recorded or digitized human
seats, if applicable, or be ‘‘dog-legged’’ speech messages, to announce stops
so that the floor attachment does not and provide other passenger informa-
impede or interfere with wheelchair tion within the vehicle.
footrests. If the driver seat platform (b) [Reserved]
507
§ 38.37 Stop request. rofitted with lifts, ramps or other

boarding devices.
(a) Where passengers may board or
(c) Existing vehicles which are retro-
alight at multiple stops at their op-
fitted to comply with the ‘‘one-car-per-
tion, vehicles in excess of 22 feet in
train rule’’ of § 37.93 of this title shall
length shall provide controls adjacent
comply with §§ 38.55, 38.57(b), 38.59 of
to the securement location for request-
this part and shall have, in new and
ing stops and which alerts the driver
key stations, at least one door com-
that a mobility aid user wishes to dis-
plying with §§ 38.53 (a)(1), (b) and (d) of
embark. Such a system shall provide
this part. Removal of seats is not re-
auditory and visual indications that
quired. Vehicles previously designed
the request has been made.
and manufactured in accordance with
(b) Controls required by paragraph
the accessibility requirements of part
(a) of this section shall be mounted no
609 of this title or the Secretary of
higher than 48 inches and no lower
Transportation regulations imple-
than 15 inches above the floor, shall be
menting section 504 of the Rehabilita-
operable with one hand and shall not
tion Act of 1973 that were in effect be-
require tight grasping, pinching, or
fore October 7, 1991, and which can be
twisting of the wrist. The force re-
entered and used from stations in
quired to activate controls shall be no
which they are to be operated, may be
greater than 5 lbf (22.2 N).
used to satisfy the requirements of
§ 38.39 Destination and route signs. § 37.93 of this title.
(a) Where destination or route infor- § 38.53 Doorways.
mation is displayed on the exterior of a
(a) Clear width. (1) Passenger door-
vehicle, each vehicle shall have illumi-
ways on vehicle sides shall have clear
nated signs on the front and boarding
openings at least 32 inches wide when
side of the vehicle.
open.
(b) Characters on signs required by
(2) If doorways connecting adjoining
paragraph (a) of this section shall have
cars in a multi-car train are provided,
a width-to-height ratio between 3:5 and
and if such doorway is connected by an
1:1 and a stroke width-to-height ratio
aisle with a minimum clear width of 30
between 1:5 and 1:10, with a minimum
inches to one or more spaces where
character height (using an upper case
wheelchair or mobility aid users can be
‘‘X’’) of 1 inch for signs on the boarding
accommodated, then such doorway
side and a minimum character height
shall have a minimum clear opening of
of 2 inches for front ‘‘headsigns’’, with
30 inches to permit wheelchair and mo-
‘‘wide’’ spacing (generally, the space
bility aid users to be evacuated to an
between letters shall be 1/16 the height
adjoining vehicle in an emergency.
of upper case letters), and shall con-
(b) Signage. The International Sym-
trast with the background, either dark-
bol of Accessibility shall be displayed
on-light or light-on-dark.
on the exterior of accessible vehicles
operating on an accessible rapid rail
Subpart C—Rapid Rail Vehicles system unless all vehicles are acces-
and Systems sible and are not marked by the access
symbol. (See Fig. 6.)
§ 38.51 General. (c) Signals. Auditory and visual warn-
(a) New, used and remanufactured ing signals shall be provided to alert
rapid rail vehicles, to be considered ac- passengers of closing doors.
cessible by regulations in part 37 of (d) Coordination with boarding plat-
this title, shall comply with this sub- form—(1) Requirements. Where new vehi-
part. cles will operate in new stations, the
(b) If portions of the vehicle are design of vehicles shall be coordinated
modified in a way that affects or could with the boarding platform design such
affect accessibility, each such portion that the horizontal gap between each
shall comply, to the extent practicable, vehicle door at rest and the platform
with the applicable provisions of this shall be no greater than 3 inches and
subpart. This provision does not re- the height of the vehicle floor shall be
quire that inaccessible vehicles be ret- within plus or minus 5⁄8 inch of the
508
platform height under all normal pas- bility aids may be provided within the
senger load conditions. Vertical align- normal area used by standees and des-
ment may be accomplished by vehicle ignation of specific spaces is not re-
air suspension or other suitable means quired. Particular attention shall be
of meeting the requirement. given to ensuring maximum maneuver-
(2) Exception. New vehicles operating ability immediately inside doors.
in existing stations may have a floor Ample vertical stanchions from ceiling
height within plus or minus 11⁄2 inches to seat-back rails shall be provided.
of the platform height. At key sta- Vertical stanchions from ceiling to
tions, the horizontal gap between at floor shall not interfere with wheel-
least one door of each such vehicle and chair or mobility aid user circulation
the platform shall be no greater than 3 and shall be kept to a minimum in the
inches. vicinity of doors.
(3) Exception. Retrofitted vehicles (c) The diameter or width of the grip-
shall be coordinated with the platform ping surface of handrails and stan-
in new and key stations such that the chions shall be 11⁄4 inches to 11⁄2 inches
horizontal gap shall be no greater than or provide an equivalent gripping sur-
4 inches and the height of the vehicle face and shall provide a minimum 11⁄2
floor, under 50% passenger load, shall inches knuckle clearance from the
be within plus or minus 2 inches of the nearest adjacent surface.
platform height.
§ 38.59 Floor surfaces.
§ 38.55 Priority seating signs. Floor surfaces on aisles, places for
(a) Each vehicle shall contain sign(s) standees, and areas where wheelchair
which indicate that certain seats are and mobility aid users are to be accom-
priority seats for persons with disabil- modated shall be slip-resistant.
ities, and that other passengers should
make such seats available to those who § 38.61 Public information system.
wish to use them. (a)(1) Requirements. Each vehicle shall
(b) Characters on signs required by be equipped with a public address sys-
paragraph (a) of this section shall have tem permitting transportation system
a width-to-height ratio between 3:5 and personnel, or recorded or digitized
1:1 and a stroke width-to-height ratio human speech messages, to announce
between 1:5 and 1:10, with a minimum stations and provide other passenger
character height (using an upper case information. Alternative systems or
‘‘X’’) of 5⁄8 inch, with ‘‘wide’’ spacing devices which provide equivalent ac-
(generally, the space between letters cess are also permitted. Each vehicle
shall be 1⁄16 the height of upper case let- operating in stations having more than
ters), and shall contrast with the back- one line or route shall have an external
ground, either light-on-dark or dark- public address system to permit trans-
on-light. portation system personnel, or re-
corded or digitized human speech mes-
§ 38.57 Interior circulation, handrails sages, to announce train, route, or line
and stanchions. identification information.
(a) Handrails and stanchions shall be (2) Exception. Where station an-
provided to assist safe boarding, on- nouncement systems provide informa-
board circulation, seating and standing tion on arriving trains, an external
assistance, and alighting by persons train speaker is not required.
with disabilities. (b) [Reserved]
(b) Handrails, stanchions, and seats
shall allow a route at least 32 inches § 38.63 Between-car barriers.
wide so that at least two wheelchair or (a) Requirement. Suitable devices or
mobility aid users can enter the vehi- systems shall be provided to prevent,
cle and position the wheelchairs or mo- deter or warn individuals from inad-
bility aids in areas, each having a min- vertently stepping off the platform be-
imum clear space of 48 inches by 30 tween cars. Acceptable solutions in-
inches, which do not unduly restrict clude, but are not limited to, panto-
movement of other passengers. Space graph gates, chains, motion detectors
to accommodate wheelchairs and mo- or similar devices.
509
(b) Exception. Between-car barriers in which they are to be operated, may

are not required where platform be used to satisfy the requirements of
screens are provided which close off the § 37.93 of this title.
platform edge and open only when
trains are correctly aligned with the § 38.73 Doorways.
doors. (a) Clear width—(1) All passenger
doorways on vehicle sides shall have
Subpart D—Light Rail Vehicles and minimum clear openings of 32 inches
Systems when open.
(2) If doorways connecting adjoining
§ 38.71 General. cars in a multi-car train are provided,
(a) New, used and remanufactured and if such doorway is connected by an
light rail vehicles, to be considered ac- aisle with a minimum clear width of 30
cessible by regulations in part 37 of inches to one or more spaces where
this title shall comply with this sub- wheelchair or mobility aid users can be
part. accommodated, then such doorway
(b)(1) Vehicles intended to be oper- shall have a minimum clear opening of
ated solely in light rail systems con- 30 inches to permit wheelchair and mo-
fined entirely to a dedicated right-of- bility aid users to be evacuated to an
way, and for which all stations or stops adjoining vehicle in an emergency.
are designed and constructed for rev- (b) Signage. The International Sym-
enue service after the effective date of bol of Accessibility shall be displayed
standards for design and construction
on the exterior of each vehicle oper-
in §§ 37.21 and 37.23 of this title shall
ating on an accessible light rail system
provide level boarding and shall com-
unless all vehicles are accessible and
ply with §§ 38.73(d)(1) and 38.85 of this
are not marked by the access symbol
part.
(see fig. 6).
(2) Vehicles designed for, and oper-
ated on, pedestrian malls, city streets, (c) Signals. Auditory and visual warn-
or other areas where level boarding is ing signals shall be provided to alert
not practicable shall provide wayside passengers of closing doors.
or car-borne lifts, mini-high platforms, (d) Coordination with boarding plat-
or other means of access in compliance form—(1) Requirements. The design of
with § 38.83 (b) or (c) of this part. level-entry vehicles shall be coordi-
(c) If portions of the vehicle are nated with the boarding platform or
modified in a way that affects or could mini-high platform design so that the
affect accessibility, each such portion horizontal gap between a vehicle at
shall comply, to the extent practicable, rest and the platform shall be no great-
with the applicable provisions of this er than 3 inches and the height of the
subpart. This provision does not re- vehicle floor shall be within plus or
quire that inaccessible vehicles be ret- minus 5⁄8 inch of the platform height.
rofitted with lifts, ramps or other Vertical alignment may be accom-
boarding devices. plished by vehicle air suspension, auto-
(d) Existing vehicles retrofitted to matic ramps or lifts, or any combina-
comply with the ‘‘one-car-per-train tion.
rule’’ at § 37.93 of this title shall com- (2) Exception. New vehicles operating
ply with § 38.75, § 38.77(c), § 38.79(a) and in existing stations may have a floor
§ 38.83(a) of this part and shall have, in height within plus or minus 11⁄2 inches
new and key stations, at least one door of the platform height. At key sta-
which complies with §§ 38.73 (a)(1), (b) tions, the horizontal gap between at
and (d) of this part. Vehicles previously least one door of each such vehicle and
designed and manufactured in accord- the platform shall be no greater than 3
ance with the accessibility require- inches.
ments of part 609 of this title or the (3) Exception. Retrofitted vehicles
Secretary of Transportation regula- shall be coordinated with the platform
tions implementing section 504 of the in new and key stations such that the
Rehabilitation Act of 1973 that were in horizontal gap shall be no greater than
effect before October 7, 1991, and which 4 inches and the height of the vehicle
can be entered and used from stations floor, under 50% passenger load, shall
510
be within plus or minus 2 inches of the placed to provide a minimum 11⁄2 inches
platform height. knuckle clearance from the nearest ad-
(4) Exception. Where it is not oper- jacent surface. Where on-board fare
ationally or structurally practicable to collection devices are used, a hori-
meet the horizontal or vertical require- zontal passenger assist shall be located
ments of paragraphs (d) (1), (2) or (3) of between boarding passengers and the
this section, platform or vehicle de- fare collection device and shall prevent
vices complying with § 38.83(b) or plat- passengers from sustaining injuries on
form or vehicle mounted ramps or the fare collection device or windshield
bridge plates complying with § 38.83(c) in the event of a sudden deceleration.
shall be provided. Without restricting the vestibule
space, the assist shall provide support
§ 38.75 Priority seating signs. for a boarding passenger from the door
(a) Each vehicle shall contain sign(s) through the boarding procedure. Pas-
which indicate that certain seats are sengers shall be able to lean against
priority seats for persons with disabil- the assist for security while paying
ities, and that other passengers should fares.
make such seats available to those who (c) At all doors on level-entry vehi-
wish to use them. cles, and at each entrance accessible by
(b) Where designated wheelchair or lift, ramp, bridge plate or other suit-
mobility aid seating locations are pro- able means, handrails, stanchions, pas-
vided, signs shall indicate the location senger seats, vehicle driver seat plat-
and advise other passengers of the need forms, and fare boxes, if applicable,
to permit wheelchair and mobility aid shall be located so as to allow a route
users to occupy them. at least 32 inches wide so that at least
(c) Characters on signs required by two wheelchair or mobility aid users
paragraphs (a) or (b) of this section can enter the vehicle and position the
shall have a width-to-height ratio be- wheelchairs or mobility aids in areas,
tween 3:5 and 1:1 and a stroke width-to- each having a minimum clear space of
height ratio between 1:5 and 1:10, with 48 inches by 30 inches, which do not un-
a minimum character height (using an duly restrict movement of other pas-
upper case ‘‘X’’) of 5⁄8 inch, with ‘‘wide’’ sengers. Space to accommodate wheel-
spacing (generally, the space between chairs and mobility aids may be pro-
letters shall be 1⁄16 the height of upper vided within the normal area used by
case letters), and shall contrast with standees and designation of specific
the background, either light-on-dark or spaces is not required. Particular at-
dark-on-light. tention shall be given to ensuring max-
§ 38.77 Interior circulation, handrails imum maneuverability immediately
and stanchions. inside doors. Ample vertical stanchions
from ceiling to seat-back rails shall be
(a) Handrails and stanchions shall be
provided. Vertical stanchions from
sufficient to permit safe boarding, on-
ceiling to floor shall not interfere with
board circulation, seating and standing
wheelchair or mobility aid circulation
assistance, and alighting by persons
and shall be kept to a minimum in the
with disabilities.
vicinity of accessible doors.
(b) At entrances equipped with steps,
handrails and stanchions shall be pro- § 38.79 Floors, steps and thresholds.
vided in the entrance to the vehicle in
a configuration which allows pas- (a) Floor surfaces on aisles, step
sengers to grasp such assists from out- treads, places for standees, and areas
side the vehicle while starting to where wheelchair and mobility aid
board, and to continue using such users are to be accommodated shall be
handrails or stanchions throughout the slip-resistant.
boarding process. Handrails shall have (b) All thresholds and step edges
a cross-sectional diameter between 11⁄4 shall have a band of color(s) running
inches and 11⁄2 inches or shall provide the full width of the step or threshold
an equivalent grasping surface, and which contrasts from the step tread
have eased edges with corner radii of and riser or adjacent floor, either light-
not less than 1⁄8 inch. Handrails shall be on-dark or dark-on-light.
511
§ 38.81 Lighting. chairs or mobility aids could not be ac-

commodated on a single vehicle.
(a) Any stepwell or doorway with a
(b) Vehicle lift—(1) Design load. The
lift, ramp or bridge plate immediately
design load of the lift shall be at least
adjacent to the driver shall have, when
600 pounds. Working parts, such as ca-
the door is open, at least 2 foot-candles
bles, pulleys, and shafts, which can be
of illumination measured on the step
expected to wear, and upon which the
tread or lift platform.
lift depends for support of the load,
(b) Other stepwells, and doorways shall have a safety factor of at least
with lifts, ramps or bridge plates, shall six, based on the ultimate strength of
have, at all times, at least 2 foot-can- the material. Nonworking parts, such
dles of illumination measured on the as platform, frame, and attachment
step tread or lift or ramp, when de- hardware which would not be expected
ployed at the vehicle floor level. to wear, shall have a safety factor of at
(c) The doorways of vehicles not op- least three, based on the ultimate
erating at lighted station platforms strength of the material.
shall have outside lights which provide (2) Controls—(i) Requirements. The
at least 1 foot-candle of illumination controls shall be interlocked with the
on the station platform or street sur- vehicle brakes, propulsion system, or
face for a distance of 3 feet perpen- door, or shall provide other appropriate
dicular to all points on the bottom step mechanisms or systems, to ensure that
tread. Such lights shall be located the vehicle cannot be moved when the
below window level and shielded to pro- lift is not stowed and so the lift cannot
tect the eyes of entering and exiting be deployed unless the interlocks or
passengers. systems are engaged. The lift shall de-
ploy to all levels (i.e., ground, curb,
§ 38.83 Mobility aid accessibility.
and intermediate positions) normally
(a)(1) General. All new light rail vehi- encountered in the operating environ-
cles, other than level entry vehicles, ment. Where provided, each control for
covered by this subpart shall provide a deploying, lowering, raising, and stow-
level-change mechanism or boarding ing the lift and lowering the roll-off
device (e.g., lift, ramp or bridge plate) barrier shall be of a momentary con-
complying with either paragraph (b) or tact type requiring continuous manual
(c) of this section and sufficient clear- pressure by the operator and shall not
ances to permit at least two wheelchair allow improper lift sequencing when
or mobility aid users to reach areas, the lift platform is occupied. The con-
each with a minimum clear floor space trols shall allow reversal of the lift op-
of 48 inches by 30 inches, which do not eration sequence, such as raising or
unduly restrict passenger flow. Space lowering a platform that is part way
to accommodate wheelchairs and mo- down, without allowing an occupied
bility aids may be provided within the platform to fold or retract into the
normal area used by standees and des- stowed position.
ignation of specific spaces is not re- (ii) Exception. Where physical or safe-
quired. ty constraints prevent the deployment
(2) Exception. If lifts, ramps or bridge at some stops of a lift having its long
plates meeting the requirements of this dimension perpendicular to the vehicle
section are provided on station plat- axis, the transportation entity may
forms or other stops required to be ac- specify a lift which is designed to de-
cessible, or mini-high platforms com- ploy with its long dimension parallel to
plying with § 38.73(d) of this part are the vehicle axis and which pivots into
provided, the vehicle is not required to or out of the vehicle while occupied
be equipped with a car-borne device. (i.e., ‘‘rotary lift’’). The requirements
Where each new vehicle is compatible of paragraph (b)(2)(i) of this section
with a single platform-mounted access prohibiting the lift from being stowed
system or device, additional systems or while occupied shall not apply to a lift
devices are not required for each vehi- design of this type if the stowed posi-
cle provided that the single device tion is within the passenger compart-
could be used to provide access to each ment and the lift is intended to be
new vehicle if passengers using wheel- stowed while occupied.
512
(iii) Exception. The brake or propul- inches above the station platform or
sion system interlocks requirement roadway and the lift is occupied. Alter-
does not apply to a station platform natively, a barrier or system may be
mounted lift provided that a mechan- raised, lowered, opened, closed, en-
ical, electrical or other system oper- gaged or disengaged by the lift oper-
ates to ensure that vehicles do not ator provided an interlock or inherent
move when the lift is in use. design feature prevents the lift from
(3) Emergency operation. The lift shall rising unless the barrier is raised or
incorporate an emergency method of closed or the supplementary system is
deploying, lowering to ground level engaged.
with a lift occupant, and raising and (6) Platform surface. The lift platform
stowing the empty lift if the power to surface shall be free of any protrusions
the lift fails. No emergency method, over 1⁄4 inch high and shall be slip re-
manual or otherwise, shall be capable sistant. The lift platform shall have a
of being operated in a manner that minimum clear width of 281⁄2 inches at
could be hazardous to the lift occupant the platform, a minimum clear width
or to the operator when operated ac- of 30 inches measured from 2 inches
cording to manufacturer’s instructions, above the lift platform surface to 30
and shall not permit the platform to be inches above the surface, and a min-
stowed or folded when occupied, unless imum clear length of 48 inches meas-
the lift is a rotary lift intended to be ured from 2 inches above the surface of
stowed while occupied. the platform to 30 inches above the sur-
(4) Power or equipment failure. Lift face. (See Fig. 1)
platforms stowed in a vertical position, (7) Platform gaps. Any openings be-
and deployed platforms when occupied, tween the lift platform surface and the
shall have provisions to prevent their raised barriers shall not exceed 5⁄8 inch
deploying, falling, or folding any faster wide. When the lift is at vehicle floor
than 12 inches/second or their dropping height with the inner barrier (if appli-
of an occupant in the event of a single cable) down or retracted, gaps between
failure of any load carrying compo- the forward lift platform edge and ve-
nent. hicle floor shall not exceed 1⁄2 inch
(5) Platform barriers. The lift platform horizontally and 5⁄8 inch vertically.
shall be equipped with barriers to pre- Platforms on semi-automatic lifts may
vent any of the wheels of a wheelchair have a hand hold not exceeding 11⁄2
or mobility aid from rolling off the lift inches by 41⁄2 inches located between
during its operation. A movable barrier the edge barriers.
or inherent design feature shall pre- (8) Platform entrance ramp. The en-
vent a wheelchair or mobility aid from trance ramp, or loading-edge barrier
rolling off the edge closest to the vehi- used as a ramp, shall not exceed a slope
cle until the lift is in its fully raised of 1:8 measured on level ground, for a
position. Each side of the lift platform maximum rise of 3 inches, and the
which extends beyond the vehicle in its transition from the station platform or
raised position shall have a barrier a roadway to ramp may be vertical with-
minimum 11⁄2 inches high. Such bar- out edge treatment up to 1⁄4 inch.
riers shall not interfere with maneu- Thresholds between 1⁄4 inch and 1⁄2 inch
vering into or out of the aisle. The high shall be beveled with a slope no
loading-edge barrier (outer barrier) greater than 1:2.
which functions as a loading ramp (9) Platform deflection. The lift plat-
when the lift is at ground level, shall form (not including the entrance ramp)
be sufficient when raised or closed, or a shall not deflect more than 3 degrees
supplementary system shall be pro- (exclusive of vehicle roll) in any direc-
vided, to prevent a power wheelchair or tion between its unloaded position and
mobility aid from riding over or defeat- its position when loaded with 600
ing it. The outer barrier on the out- pounds applied through a 26 inch by 26
board of the lift shall automatically inch test pallet at the centroid of the
rise or close, or a supplementary sys- lift platform.
tem shall automatically engage, and (10) Platform movement. No part of the
remain raised, closed, or engaged at all platform shall move at a rate exceed-
times that the lift is more than 3 ing 6 inches/second during lowering and
513
lifting an occupant, and shall not ex- inches, and shall accommodate both
ceed 12 inches/second during deploying four-wheel and three-wheel mobility
or stowing. This requirement does not aids.
apply to the deployment or stowage cy- (3) Ramp threshold. The transition
cles of lifts that are manually deployed from roadway or station platform and
or stowed. The maximum platform hor- the transition from vehicle floor to the
izontal and vertical acceleration when ramp or bridge plate may be vertical
occupied shall be 0.3g. without edge treatment up to 1⁄4 inch.
(11) Boarding direction. The lift shall Changes in level between 1⁄4 inch and 1⁄2
permit both inboard and outboard fac- inch shall be beveled with a slope no
ing of wheelchairs and mobility aids. greater than 1:2.
(12) Use by standees. Lifts shall ac- (4) Ramp barriers. Each side of the
commodate persons using walkers, ramp or bridge plate shall have bar-
crutches, canes or braces or who other- riers at least 2 inches high to prevent
wise have difficulty using steps. The mobility aid wheels from slipping off.
lift may be marked to indicate a pre- (5) Slope. Ramps or bridge plates shall
ferred standing position. have the least slope practicable. If the
(13) Handrails. Platforms on lifts height of the vehicle floor, under 50%
shall be equipped with handrails, on passenger load, from which the ramp is
two sides, which move in tandem with deployed is 3 inches or less above the
the lift which shall be graspable and station platform a maximum slope of
provide support to standees throughout 1:4 is permitted; if the height of the ve-
the entire lift operation. Handrails hicle floor, under 50% passenger load,
shall have a usable component at least from which the ramp is deployed is 6
8 inches long with the lowest portion a inches or less, but more than 3 inches,
minimum 30 inches above the platform above the station platform a maximum
and the highest portion a maximum 38 slope of 1:6 is permitted; if the height
inches above the platform. The hand- of the vehicle floor, under 50% pas-
rails shall be capable of withstanding a senger load, from which the ramp is de-
force of 100 pounds concentrated at any ployed is 9 inches or less, but more
point on the handrail without perma- than 6 inches, above the station plat-
nent deformation of the rail or its sup- form a maximum slope of 1:8 is per-
porting structure. Handrails shall have mitted; if the height of the vehicle
a cross-sectional diameter between 11⁄4 floor, under 50% passenger load, from
inches and 11⁄2 inches or shall provide which the ramp is deployed is greater
an equivalent grasping surface, and than 9 inches above the station plat-
have eased edges with corner radii of form a slope of 1:12 shall be achieved.
not less than 1⁄8 inch. Handrails shall be Folding or telescoping ramps are per-
placed to provide a minimum 11⁄2 inches mitted provided they meet all struc-
knuckle clearance from the nearest ad- tural requirements of this section.
jacent surface. Handrails shall not (6) Attachment—(i) Requirement. When
interfere with wheelchair or mobility in use for boarding or alighting, the
aid maneuverability when entering or ramp or bridge plate shall be attached
leaving the vehicle. to the vehicle, or otherwise prevented
(c) Vehicle ramp or bridge plate—(1) De- from moving such that it is not subject
sign load. Ramps or bridge plates 30 to displacement when loading or un-
inches or longer shall support a load of loading a heavy power mobility aid and
600 pounds, placed at the centroid of that any gaps between vehicle and
the ramp or bridge plate distributed ramp or bridge plate, and station plat-
over an area of 26 inches, with a safety form and ramp or bridge plate, shall
factor of at least 3 based on the ulti- not exceed 5⁄8 inch.
mate strength of the material. Ramps (ii) Exception. Ramps or bridge plates
or bridge plates shorter than 30 inches which are attached to, and deployed
shall support a load of 300 pounds. from, station platforms are permitted
(2) Ramp surface. The ramp or bridge in lieu of vehicle devices provided they
plate surface shall be continuous and meet the displacement requirements of
slip resistant, shall not have protru- paragraph (c)(6)(i) of this section.
sions from the surface greater then 1⁄4 (7) Stowage. A compartment, secure-
inch, shall have a clear width of 30 ment system, or other appropriate
514
method shall be provided to ensure accessible by regulations in part 37 of

that stowed ramps or bridge plates, in- this title, shall comply with this sub-
cluding portable ramps or bridges part.
plates stowed in the passenger area, do (b) If portions of the car are modified
not impinge on a passenger’s wheel- in such a way that it affects or could
chair or mobility aid or pose any haz- affect accessibility, each such portion
ard to passengers in the event of a sud- shall comply, to the extent practicable,
den stop. with the applicable provisions of this
(8) Handrails. If provided, handrails subpart. This provision does not re-
shall allow persons with disabilities to quire that inaccessible cars be retro-
grasp them from outside the vehicle fitted with lifts, ramps or other board-
while starting to board, and to con- ing devices.
tinue to use them throughout the (c)(1) Commuter rail cars shall com-
boarding process, and shall have the ply with §§ 38.93(d) and 38.109 of this
top between 30 inches and 38 inches part for level boarding wherever struc-
above the ramp surface. The handrails turally and operationally practicable.
shall be capable of withstanding a force (2) Where level boarding is not struc-
of 100 pounds concentrated at any point turally or operationally practicable,
on the handrail without permanent de- commuter rail cars shall comply § 38.95
formation of the rail or its supporting of this part.
structure. The handrail shall have a (d) Existing vehicles retrofitted to
cross- sectional diameter between 11⁄4 comply with the ‘‘one-car-per-train
inches and 11⁄2 inches or shall provide rule’’ at § 37.93 of this title shall com-
an equivalent grasping surface, and ply with §§ 38.93(e), 38.95(a) and 38.107 of
have ‘‘eased’’ edges with corner radii of this part and shall have, in new and
not less than 1⁄8 inch. Handrails shall key stations at least one door on each
not interfere with wheelchair or mobil- side from which passengers board
ity aid maneuverability when entering which complies with § 38.93(d) of this
or leaving the vehicle. part. Vehicles previously designed and
manufactured in accordance with the
§ 38.85 Between-car barriers.
program accessibility requirements of
Where vehicles operate in a high- section 504 of the Rehabilitation Act of
platform, level-boarding mode, devices 1973, or implementing regulations of
or systems shall be provided to pre- the Secretary of Transportation that
vent, deter or warn individuals from in- were in effect before October 7, 1991;
advertently stepping off the platform and which can be entered and used
between cars. Appropriate devices in- from stations in which they are to be
clude, but are not limited to, panto- operated, may be used to satisfy the re-
graph gates, chains, motion detectors quirements of § 37.93 of this title.
or other suitable devices.
§ 38.93 Doorways.
§ 38.87 Public information system.
(a) Clear width. (1) At least one door
(a) Each vehicle shall be equipped on each side of the car from which pas-
with an interior public address system sengers board opening onto station
permitting transportation system per- platforms and at least one adjacent
sonnel, or recorded or digitized human doorway into the passenger coach com-
speech messages, to announce stations partment, if provided, shall have a
and provide other passenger informa- minimum clear opening of 32 inches.
tion. Alternative systems or devices (2) If doorways connecting adjoining
which provide equivalent access are cars in a multi-car train are provided,
also permitted. and if such doorway is connected by an
(b) [Reserved] aisle with a minimum clear width of 30
inches to one or more spaces where
Subpart E—Commuter Rail Cars wheelchair or mobility aid users can be
and Systems accommodated, then such doorway
shall have, to the maximum extent
§ 38.91 General. practicable in accordance with the reg-
(a) New, used and remanufactured ulations issued under the Federal Rail-
commuter rail cars, to be considered road Safety Act of 1970 (49 CFR parts
515
229 and 231), a clear opening of 30 cessible and are not marked by the ac-
inches. cess symbol (see Fig. 6). Appropriate
(b) Passageways. A route at least 32 signage shall also indicate which acces-
inches wide shall be provided from sible doors are adjacent to an acces-
doors required to be accessible by para- sible restroom, if applicable.
graph (a)(1) of this section to seating
locations complying with § 38.95(d) of § 38.95 Mobility aid accessibility.
this part. In cars where such doorways (a)(1) General. All new commuter rail
require passage through a vestibule, cars, other than level entry cars, cov-
such vestibule shall have a minimum ered by this subpart shall provide a
width of 42 inches. (See Fig. 3.) level-change mechanism or boarding
(c) Signals. If doors to the platform device (e.g., lift, ramp or bridge plate)
close automatically or from a remote complying with either paragraph (b) or
location, auditory and visual warning (c) of this section; sufficient clearances
signals shall be provided to alert pas- to permit a wheelchair or mobility aid
sengers or closing doors. user to reach a seating location; and at
(d) Coordination with boarding plat- least two wheelchair or mobility aid
form—(1) Requirements. Cars operating seating locations complying with para-
in stations with high platforms, or graph (d) of this section.
mini-high platforms, shall be coordi- (2) Exception. If portable or platform
nated with the boarding platform de- lifts, ramps or bridge plates meeting
sign such that the horizontal gap be- the applicable requirements of this sec-
tween a car at rest and the platform tion are provided on station platforms
shall be no greater than 3 inches and or other stops required to be accessible,
the height of the car floor shall be or mini-high platforms complying with
within plus or minus 5⁄8 inch of the § 38.93(d) are provided, the car is not re-
platform height. Vertical alignment quired to be equipped with a car-borne
may be accomplished by car air suspen- device. Where each new car is compat-
sion, platform lifts or other devices, or ible with a single platform-mounted
any combination. access system or device, additional sys-
(2) Exception. New vehicles operating tems or devices are not required for
in existing stations may have a floor each car provided that the single de-
height within plus or minus 11⁄2 inches vice could be used to provide access to
of the platform height. At key sta- each new car if passengers using wheel-
tions, the horizontal gap between at chairs or mobility aids could not be ac-
least one accessible door of each such commodated on a single car.
vehicle and the platform shall be no (b) Car Lift—(1) Design load. The de-
greater than 3 inches. sign load of the lift shall be at least 600
(3) Exception. Where platform set- pounds. Working parts, such as cables,
backs do not allow the horizontal gap pulleys, and shafts, which can be ex-
or vertical alignment specified in para- pected to wear, and upon which the lift
graph (d)(1) or (d)(2) of this section, depends for support of the load, shall
car, platform or portable lifts com- have a safety factor of at least six,
plying with § 38.95(b) of this part, or car based on the ultimate strength of the
or platform ramps or bridge plates, material. Nonworking parts, such as
complying with § 38.95(c) of this part, platform, frame, and attachment hard-
shall be provided. ware which would not be expected to
(4) Exception. Retrofitted vehicles wear, shall have a safety factor of at
shall be coordinated with the platform least three, based on the ultimate
in new and key stations such that the strength of the material.
horizontal gap shall be no greater than (2) Controls—(i) Requirements. The
4 inches and the height of the vehicle controls shall be interlocked with the
floor, under 50% passenger load, shall car brakes, propulsion system, or door,
be within plus or minus 2 inches of the or shall provide other appropriate
platform height. mechanisms or systems, to ensure that
(e) Signage. The International Sym- the car cannot be moved when the lift
bol of Accessibility shall be displaced is not stowed and so the lift cannot be
on the exterior of all doors complying deployed unless the interlocks or sys-
with this section unless all cars are ac- tems are engaged. The lift shall deploy
516
to all platform levels normally encoun- deploying, falling, or folding any faster
tered in the operating environment. than 12 inches/second or their dropping
Where provided, each control for de- of an occupant in the event of a single
ploying, lowering, raising, and stowing failure of any load carrying compo-
the lift and lowering the roll-off bar- nent.
rier shall be of a monetary contact (5) Platform barriers. The lift platform
type requiring continuous manual pres- shall be equipped with barriers to pre-
sure by the operator and shall not vent any of the wheels of a wheelchair
allow improper lift sequencing when or mobility aid from rolling off the lift
the lift platform is occupied. The con- during its operation. A movable barrier
trols shall allow reversal of the lift op- or inherent design feature shall pre-
eration sequence, such as raising or vent a wheelchair or mobility aid from
lowering a platform that is part way rolling off the edge closest to the car
down, without allowing an occupied until the lift is in its fully raised posi-
platform to fold or retract into the tion. Each side of the lift platform
stowed position. which, in its raised position, extends
(ii) Exception. Where physical or safe- beyond the car shall have a barrier a
ty constraints prevent the deployment minimum 11⁄2 inches high. Such bar-
at some stops of a lift having its long riers shall not interfere with maneu-
dimension perpendicular to the car vering into or out of the car. The load-
axis, the transportation entity may ing-edge barrier (outer barrier) which
specify a lift which is designed to de- functions as a loading ramp when the
ploy with its long dimension parallel to lift is at ground or station platform
the car axis and which pivots into or level, shall be sufficient when raised or
out of the car while occupied (i.e., ‘‘ro- closed, or a supplementary system
tary lift’’). The requirements of para- shall be provided, to prevent a power
graph (b)(2)(i) of this section prohib- wheelchair or mobility aid from riding
iting the lift from being stowed while over or defeating it. The outer barrier
occupied shall not apply to a lift design of the lift shall automatically rise or
of this type if the stowed position is close, or a supplementary system shall
within the passenger compartment and automatically engage, and remain
the lift is intended to be stowed while raised, closed, or engaged at all times
occupied. that the lift platform is more than 3
(iii) Exception. The brake or propul- inches above the station platform and
sion system interlock requirement does the lift is occupied. Alternatively, a
not apply to a platform mounted or barrier or system may be raised, low-
portable lift provided that a mechan- ered, opened, closed, engaged or dis-
ical, electrical or other system oper- engaged by the lift operator provided
ates to ensure that cars do not move an interlock or inherent design feature
when the lift is in use. prevents the lift from rising unless the
(3) Emergency operation. The lift shall barrier is raised or closed or the sup-
incorporate an emergency method of plementary system is engaged.
deploying, lowering to ground or plat- (6) Platform surface. The lift platform
form level with a lift occupant, and surface shall be free of any protrusions
raising and stowing the empty lift if over 1⁄4 inch high and shall be slip re-
the power to the lift fails. No emer- sistant. The lift platform shall have a
gency method, manual or otherwise, minimum clear width of 281⁄2 inches at
shall be capable of being operated in a the platform, a minimum clear width
manner that could be hazardous to the of 30 inches measured from 2 inches
lift occupant or to the operator when above the lift platform surface to 30
operated according to manufacturer’s inches above the surface, and a min-
instructions, and shall not permit the imum clear length of 48 inches meas-
platform to be stowed or folded when ured from 2 inches above the surface of
occupied, unless the lift is a rotary lift the platform to 30 inches above the sur-
intended to be stowed while occupied. face. (See Fig. 1)
(4) Power or equipment failure. Plat- (7) Platform gaps. Any openings be-
forms stowed in a vertical position, and tween the lift platform surface and the
deployed platforms when occupied, raised barriers shall not exceed 5⁄8 inch
shall have provisions to prevent their wide. When the lift is at car floor
517
height with the inner barrier down (if nent deformation of the rail or its sup-
applicable) or retracted, gaps between porting structure. The handrail shall
the forward lift platform edge and car have a cross-sectional diameter be-
floor shall not exceed 1⁄2 inch hori- tween 11⁄4 inches and 11⁄2 inches or shall
zontally and 5⁄8 inch vertically. provide an equivalent grasping surface,
(8) Platform entrance ramp. The en- and have eased edges with corner radii
trance ramp, or loading-edge barrier of not less than 1⁄8 inch. Handrails shall
used as a ramp, shall not exceed a slope be placed to provide a minimum 11⁄2
of 1:8, when measured on level ground, inches knuckle clearance from the
for a maximum rise of 3 inches, and the nearest adjacent surface. Handrails
transition from station platform to shall not interfere with wheelchair or
ramp may be vertical without edge mobility aid maneuverability when en-
treatment up to 1⁄4 inch. Thresholds be- tering or leaving the car.
tween 1⁄4 inch and 1⁄2 inch high shall be (c) Car ramp or bridge plate—(1) Design
beveled with a slope no greater than load. Ramps or bridge plates 30 inches
1:2. or longer shall support a load of 600
(9) Platform deflection. The lift plat- pounds, placed at the centroid of the
form (not including the entrance ramp) ramp or bridge plate distributed over
shall not deflect more than 3 degrees an area of 26 inches by 26 inches, with
(exclusive of vehicle roll) in any direc- a safety factor of at least 3 based on
tion between its unloaded position and the ultimate strength of the material.
its position when loaded with 600 Ramps or bridge plates shorter than 30
pounds applied through a 26 inch by 26 inches shall support a load of 300
inch test pallet at the centroid of the pounds.
lift platform. (2) Ramp surface. The ramp or bridge
(10) Platform movement. No part of the plate surface shall be continuous and
platform shall move at a rate exceed- slip resistant, shall not have protru-
ing 6 inches/second during lowering and sions from the surface greater than 1⁄4
lifting an occupant, and shall not ex- inch high, shall have a clear width of 30
ceed 12 inches/second during deploying inches and shall accommodate both
or stowing. This requirement does not four-wheel and three-wheel mobility
apply to the deployment or stowage cy- aids.
cles of lifts that are manually deployed (3) Ramp threshold. The transition
or stowed. The maximum platform hor- from station platform to the ramp or
izontal and vertical acceleration when bridge plate and the transition from
occupied shall be 0.3g. car floor to the ramp or bridge plate
(11) Boarding direction. The lift shall may be vertical without edge treat-
permit both inboard and outboard fac- ment up to 1⁄4 inch. Changes in level be-
ing of wheelchairs and mobility aids. tween 1⁄4 inch and 1⁄2 inch shall be bev-
(12) Use by standees. Lifts shall ac- eled with a slope no greater than 1:2.
commodate persons using walkers, (4) Ramp barriers. Each side of the
crutches, canes or braces or who other- ramp or bridge plate shall have bar-
wise have difficulty using steps. The riers at least 2 inches high to prevent
lift may be marked to indicate a pre- mobility aid wheels from slipping off.
ferred standing position. (5) Slope. Ramps or bridge plates shall
(13) Handrails. Platforms on lifts have the least slope practicable. If the
shall be equipped with handrails, on height of the vehicle floor, under 50%
two sides, which move in tandem with passenger load, from which the ramp is
the lift which shall be graspable and deployed is 3 inches or less above the
provide support to standees throughout station platform a maximum slope of
the entire lift operation. Handrails 1:4 is permitted; if the height of the ve-
shall have a usable component at least hicle floor, under 50% passenger load,
8 inches long with the lowest portion a from which the ramp is deployed is 6
minimum 30 inches above the platform inches or less, but more than 3 inches,
and the highest portion a maximum 38 above the station platform a maximum
inches above the platform. The hand- slope of 1:6 is permitted; if the height
rails shall be capable of withstanding a of the vehicle floor, under 50% pas-
force of 100 pounds concentrated at any senger load, from which the ramp is de-
point on the handrail without perma- ployed is 9 inches or less, but more
518
than 6 inches, above the station plat- in their wheelchairs or mobility aids
form a maximum slope of 1:8 is per- shall have a minimum clear floor space
mitted; if the height of the vehicle 48 inches by 30 inches. Such spaces
floor, under 50% passenger load, from shall adjoin, and may overlap, an ac-
which the ramp is deployed is greater cessible path. Not more than 6 inches
than 9 inches above the station plat- of the required clear floor space may be
form a slope of 1:12 shall be achieved. accommodated for footrests under an-
Folding or telescoping ramps are per- other seat provided there is a minimum
mitted provided they meet all struc- of 9 inches from the floor to the lowest
tural requirements of this section. part of the seat overhanging the space.
(6) Attachment—(i) Requirement. When Seating spaces may have fold-down or
in use for boarding or alighting, the removable seats to accommodate other
ramp or bridge plate shall be attached passengers when a wheelchair or mobil-
to the vehicle, or otherwise prevented ity aid user is not occupying the area,
from moving such that it is not subject provided the seats, when folded up, do
to displacement when loading or un- not obstruct the clear floor space re-
loading a heavy power mobility aid and quired. (See Fig. 2.)
that any gaps between vehicle and
ramp or bridge plate, and station plat- § 38.97 Interior circulation, handrails
form and ramp or bridge plate, shall and stanchions.
not exceed 5⁄8 inch. (a) Where provided, handrails or stan-
(ii) Exception. Ramps or bridge plates chions within the passenger compart-
which are attached to, and deployed ment shall be placed to permit suffi-
from, station platforms are permitted cient turning and maneuvering space
in lieu of car devices provided they for wheelchairs and other mobility aids
meet the displacement requirements of to reach a seating location, complying
paragraph (c)(6)(i) of this section. with § 38.95(d) of this part, from an ac-
(7) Stowage. A compartment, secure- cessible entrance. The diameter or
ment system, or other appropriate width of the gripping surface of inte-
method shall be provided to ensure rior handrails and stanchions shall be
that stowed ramps or bridge plates, in- 11⁄4 inches to 11⁄2 inches or shall provide
cluding portable ramps or bridge plates an equivalent gripping surface. Hand-
stowed in the passenger area, do not rails shall be placed to provide a min-
impinge on a passenger’s wheelchair or imum 11⁄2 inches knuckle clearance
mobility aid or pose any hazard to pas- from the nearest adjacent surface.
sengers in the event of a sudden stop. (b) Where provided, handrails or stan-
(8) Handrails. If provided, handrails chions shall be sufficient to permit safe
shall allow persons with disabilities to boarding, on-board circulation, seating
grasp them from outside the car while and standing assistance, and alighting
starting to board, and to continue to by persons with disabilities.
use them throughout the boarding (c) At entrances equipped with steps,
process, and shall have the top between handrails or stanchions shall be pro-
30 inches and 38 inches above the ramp vided in the entrance to the car in a
surface. The handrails shall be capable configuration which allows passengers
of withstanding a force of 100 pounds to grasp such assists from outside the
concentrated at any point on the hand- car while starting to board, and to con-
rail without permanent deformation of tinue using such assists throughout the
the rail or its supporting structure. boarding process, to the extent per-
The handrail shall have a cross-sec- mitted by part 231 of this title.
tional diameter between 11⁄4 inches and
11⁄2 inches or shall provide an equiva- § 38.99 Floors, steps and thresholds.
lent grasping surface, and have eased (a) Floor surfaces on aisles, step
edges with corner radii of not less than treads, places for standees, and areas
1⁄8 inch. Handrails shall not interfere where wheelchair and mobility aid
with wheelchair or mobility aid ma- users are to be accommodated shall be
neuverability when entering or leaving slip-resistant.
the car. (b) All thresholds and step edges
(d) Mobility aid seating location. shall have a band of color(s) running
Spaces for persons who wish to remain the full width of the step or threshold
519
which contrasts from the step tread restroom as specified in paragraphs (a)
and riser or adjacent floor, either light- (1) through (5) of this section.
on-dark or dark-on-light. (1) The minimum clear floor area
shall be 35 inches by 60 inches. Perma-
§ 38.101 Lighting. nently installed fixtures may overlap
(a) Any stepwell or doorway with a this area a maximum of 6 inches, if the
lift, ramp or bridge plate shall have, lowest portion of the fixture is a min-
when the door is open, at least 2 foot- imum of 9 inches above the floor, and
candles of illumination measured on may overlap a maximum of 19 inches, if
the step tread, ramp, bridge plate, or the lowest portion of the fixture is a
lift platform. minimum of 29 inches above the floor,
(b) The doorways of cars not oper- provided such fixtures do not interfere
ating at lighted station platforms shall with access to the water closet. Fold-
have outside lights which, when the down or retractable seats or shelves
door is open, provide at least 1 foot- may overlap the clear floor space at a
candle of illumination on the station lower height provided they can be eas-
platform surface for a distance of 3 feet ily folded up or moved out of the way.
perpendicular to all points on the bot- (2) The height of the water closet
tom step tread edge. Such lights shall shall be 17 inches to 19 inches measured
be shielded to protect the eyes of enter- to the top of the toilet seat. Seats shall
ing and exiting passengers. not be sprung to return to a lifted posi-
tion.
§ 38.103 Public information system. (3) A grab bar at least 24 inches long
(a) Each car shall be equipped with shall be mounted behind the water
an interior public address system per- closet, and a horizontal grab bar at
mitting transportation system per- least 40 inches long shall be mounted
sonnel, or recorded or digitized human on at least one side wall, with one end
speech messages, to announce stations not more than 12 inches from the back
and provide other passenger informa- wall, at a height between 33 inches and
tion. Alternative systems or devices 36 inches above the floor.
which provide equivalent access are (4) Faucets and flush controls shall
also permitted. be operable with one hand and shall
(b) [Reserved] not require tight grasping, pinching, or
twisting of the wrist. The force re-
§ 38.105 Priority seating signs. quired to activate controls shall be no
(a) Each car shall contain sign(s) greater than 5 lbf (22.2 N). Controls for
which indicate that certain seats are flush valves shall be mounted no more
priority seats for persons with disabil- than 44 inches above the floor.
ities and that other passengers should (5) Doorways on the end of the enclo-
make such seats available to those who sure, opposite the water closet, shall
wish to use them. have a minimum clear opening width
(b) Characters on signs required by of 32 inches. Doorways on the side wall
paragraph (a) shall have a width-to- shall have a minimum clear opening
height ratio between 3:5 and 1:1 and a width of 39 inches. Door latches and
stroke width-to-height ratio between hardware shall be operable with one
1:5 and 1:10, with a minimum character hand and shall not require tight grasp-
height (using an upper case ‘‘X’’) of 5⁄8 ing, pinching, or twisting of the wrist.
inch, with ‘‘wide’’ spacing (generally, (b) Restrooms required to be acces-
the space between letters shall be 1⁄16 sible shall be in close proximity to at
the height of upper case letters), and least one seating location for persons
shall contrast with the background ei- using mobility aids and shall be con-
ther light-on-dark or dark-on-light. nected to such a space by an unob-
structed path having a minimum width
§ 38.107 Restrooms. of 32 inches.
(a) If a restroom is provided for the
general public, it shall be designed so § 38.109 Between-car barriers.
as to allow a person using a wheelchair Where vehicles operate in a high-
or mobility aid to enter and use such platform, level-boarding mode, and
520
where between-car bellows are not pro- required in dining and lounge cars only
vided, devices or systems shall be pro- if restrooms are provided for other pas-
vided to prevent, deter or warn individ- sengers.
uals from inadvertently stepping off (6) Sleeper cars shall comply with
the platform between cars. Appropriate §§ 38.113 (b) through (d), 38.115 through
devices include, but are not limited to, 38.121, and 38.125, of this part, and have
pantograph gates, chains, motion de- at least one compartment which can be
tectors or other suitable devices. entered and used by a person using a
wheelchair or mobility aid and com-
Subpart F—Intercity Rail Cars and plying with § 38.127 of this part.
Systems (b)(1) If physically and operationally
practicable, intercity rail cars shall
§ 38.111 General. comply with § 38.113(d) of this part for
(a) New, used and remanufactured level boarding.
intercity rail cars, to be considered ac- (2) Where level boarding is not struc-
cessible by regulations in part 37 of turally or operationally practicable,
this title shall comply with this sub- intercity rail cars shall comply with
part to the extent required for each § 38.125.
type of car as specified below. (c) If portions of the car are modified
(1) Single-level rail passenger coach- in a way that it affects or could affect
es and food service cars (other than accessibility, each such portion shall
single-level dining cars) shall comply comply, to the extent practicable, with
with §§ 38.113 through 38.123 of this part. the applicable provisions of this sub-
Compliance with § 38.125 of this part part. This provision does not require
shall be required only to the extent that inaccessible cars be retrofitted
necessary to meet the requirements of with lifts, ramps or other boarding de-
paragraph (d) of this section. vices.
(2) Single-level dining and lounge
(d) Passenger coaches or food service
cars shall have at least one connecting
cars shall have the number of spaces
doorway complying with § 38.113(a)(2) of
complying with § 38.125(d)(2) of this
this part connected to a car accessible
part and the number of spaces com-
to persons using wheelchairs or mobil-
plying with § 38.125(d)(3) of this part, as
ity aids, and at least one space com-
required by § 37.91 of this title.
plying with §§ 38.125(d) (2) and (3) of this
part, to provide table service to a per- (e) Existing cars retrofitted to meet
son who wishes to remain in his or her the seating requirements of § 37.91 of
wheelchair, and space to fold and store this title shall comply with § 38.113(e),
a wheelchair for a person who wishes to § 38.123, § 38.125(d) of this part and shall
transfer to an existing seat. have at least one door on each side
(3) Bi-level dining cars shall comply from which passengers board com-
with §§ 38.113(a)(2), 38.115(b), 38.117(a), plying with § 38.113(d) of this part. Ex-
and 38.121 of this part. isting cars designed and manufactured
(4) Bi-level lounge cars shall have to be accessible in accordance with the
doors on the lower level, on each side Secretary of Transportation regula-
of the car from which passengers board, tions implementing section 504 of the
complying with § 38.113, a restroom Rehabilitation Act of 1973 that were in
complying with § 38.123, and at least effect before October 7, 1991, shall com-
one space complying with § 38.125(d) (2) ply with § 38.125(a) of this part.
and (3) to provide table service to a
§ 38.113 Doorways.
person who wishes to remain in his or
her wheelchair and space to fold and (a) Clear width. (1) At least one door-
store a wheelchair for a person who way, on each side of the car from which
wishes to transfer to an existing seat. passengers board, of each car required
(5) Restrooms, complying with § 38.123 to be accessible by § 38.111(a) and where
shall be provided in single-level rail the spaces required by § 38.111(d) of this
passenger coaches and food services part are located, and at least one adja-
cars adjacent to the accessible seating cent doorway into coach passenger
locations required by paragraph (d) of compartments shall have a minimum
this section. Accessible restrooms are clear opening width of 32 inches.
521
(2) Doorways at ends of cars con- floor, under 50% passenger load, shall
necting two adjacent cars, to the max- be within plus or minus 2 inches of the
imum extent practicable in accordance platform height.
with regulations issued under the Fed- (e) Signage. The International Sym-
eral Railroad Safety Act of 1970 (49 bol of Accessibility shall be displayed
CFR parts 229 and 231), shall have a on the exterior of all doors complying
clear opening width of 32 inches to per- with this section unless all cars and
mit wheelchair and mobility aid users doors are accessible and are not
to enter into a single-level dining car, marked by the access symbol (see fig.
if available. 6). Appropriate signage shall also indi-
(b) Passageway. Doorways required to cate which accessible doors are adja-
be accessible by paragraph (a) of this cent to an accessible restroom, if appli-
section shall permit access by persons cable.
using mobility aids and shall have an [56 FR 45756, Sept. 6, 1991, as amended at 58
unobstructed passageway at least 32 FR 63103, Nov. 30, 1993]
inches wide leading to an accessible
sleeping compartment complying with § 38.115 Interior circulation, handrails
§ 38.127 of this part or seating locations and stanchions.
complying with § 38.125(d) of this part. (a) Where provided, handrails or stan-
In cars where such doorways require chions within the passenger compart-
passage through a vestibule, such ves- ment shall be placed to permit suffi-
tibule shall have a minimum width of cient turning and maneuvering space
42 inches. (see Fig. 4) for wheelchairs and other mobility aids
(c) Signals. If doors to the platform to reach a seating location, complying
close automatically or from a remote with § 38.125(d) of this part, from an ac-
location, auditory and visual warning cessible entrance. The diameter or
signals shall be provided to alert pas- width of the gripping surface of inte-
sengers of closing doors. rior handrails and stanchions shall be
(d) Coordination with boarding plat- 11⁄4 inches to 11⁄2 inches or shall provide
forms—(1) Requirements. Cars which pro- an equivalent gripping surface. Hand-
vide level-boarding in stations with rails shall be placed to provide a min-
high platforms shall be coordinated imum 11⁄2 inches knuckle clearance
with the boarding platform or mini- from the nearest adjacent surface.
high platform design such that the hor- (b) Where provided, handrails and
izontal gap between a car at rest and stanchions shall be sufficient to permit
the platform shall be no greater than 3 safe boarding, on-board circulation,
inches and the height of the car floor seating and standing assistance, and
shall be within plus or minus 5⁄8 inch of alighting by persons with disabilities.
the platform height. Vertical align- (c) At entrances equipped with steps,
ment may be accomplished by car air handrails or stanchions shall be pro-
suspension, platform lifts or other de- vided in the entrance to the car in a
vices, or any combination. configuration which allows passengers
(2) Exception. New cars operating in to grasp such assists from outside the
existing stations may have a floor car while starting to board, and to con-
height within plus or minus 11⁄2 inches tinue using such assists throughout the
of the platform height. boarding process, to the extent per-
(3) Exception. Where platform set- mitted by part 231 of this title.
backs do not allow the horizontal gap
or vertical alignment specified in para- § 38.117 Floors, steps and thresholds.
graph (d) (1) or (2), platform or portable (a) Floor surfaces on aisles, step
lifts complying with § 38.125(b) of this treads and areas where wheelchair and
part, or car or platform bridge plates, mobility aid users are to be accommo-
complying with § 38.125(c) of this part, dated shall be slip-resistant.
may be provided. (b) All step edges and thresholds
(4) Exception. Retrofitted vehicles shall have a band of color(s) running
shall be coordinated with the platform the full width of the step or threshold
in existing stations such that the hori- which contrasts from the step tread
zontal gap shall be no greater than 4 and riser or adjacent floor, either light-
inches and the height of the vehicle on-dark or dark-on-light.
522
§ 38.119 Lighting. (3) A grab bar at least 24 inches long

(a) Any stepwell, or doorway with a shall be mounted behind the water
lift, ramp or bridge plate, shall have, closet, and a horizontal grab bar at
when the door is open, at least 2 foot- least 40 inches long shall be mounted
candles of illumination measured on on at least one side wall, with one end
the step tread, ramp, bridge plate or not more than 12 inches from the back
lift platform. wall, at a height between 33 inches and
(b) The doorways of cars not oper- 36 inches above the floor.
ating at lighted station platforms shall (4) Faucets and flush controls shall
have outside lights which, when the be operable with one hand and shall
door is open, provide at least 1 foot- not require tight grasping, pinching, or
candle of illumination on the station twisting of the wrist. The force re-
platform surface for a distance of 3 feet quired to activate controls shall be no
perpendicular to all points on the bot- greater than 5 lbf (22.2 N). Controls for
tom step tread edge. Such lights shall flush valves shall be mounted no more
be shielded to protect the eyes of enter- than 44 inches above the floor.
ing and exiting passengers. (5) Doorways on the end of the enclo-
sure, opposite the water closet, shall
§ 38.121 Public information system. have a minimum clear opening width
(a) Each car shall be equipped with a of 32 inches. Doorways on the side wall
public address system permitting shall have a minimum clear opening
transportation system personnel, or re- width of 39 inches. Door latches and
corded or digitized human speech mes- hardware shall be operable with one
sages, to announce stations and pro- hand and shall not require tight grasp-
vide other passenger information. Al- ing, pinching, or twisting of the wrist.
ternative systems or devices which pro- (b) Restrooms required to be acces-
vide equivalent access are also per- sible shall be in close proximity to at
mitted. least one seating location for persons
(b) [Reserved] using mobility aids complying with
§ 38.125(d) of this part and shall be con-
§ 38.123 Restrooms. nected to such a space by an unob-
(a) If a restroom is provided for the structed path having a minimum width
general public, and an accessible rest- of 32 inches.
room is required by § 38.111 (a) and (e)
§ 38.125 Mobility aid accessibility.
of this part, it shall be designed so as
to allow a person using a wheelchair or (a)(1) General. All intercity rail cars,
mobility aid to enter and use such rest- other than level entry cars, required to
room as specified in paragraphs (a) (1) be accessible by §§ 38.111 (a) and (e) of
through (5) of this section. this subpart shall provide a level-
(1) The minimum clear floor area change mechanism or boarding device
shall be 35 inches by 60 inches. Perma- (e.g., lift, ramp or bridge plate) com-
nently installed fixtures may overlap plying with either paragraph (b) or (c)
this area a maximum of 6 inches, if the of this section and sufficient clear-
lowest portion of the fixture is a min- ances to permit a wheelchair or other
imum of 9 inches above the floor, and mobility aid user to reach a seating lo-
may overlap a maximum of 19 inches, if cation complying with paragraph (d) of
the lowest portion of the fixture is a this section.
minimum of 29 inches above the floor. (2) Exception. If portable or platform
Fixtures shall not interfere with access lifts, ramps or bridge plates meeting
to and use of the water closet. Fold- the applicable requirements of this sec-
down or retractable seats or shelves tion are provided on station platforms
may overlap the clear floor space at a or other stops required to be accessible,
lower height provided they can be eas- or mini-high platforms complying with
ily folded up or moved out of the way. § 38.113(d) are provided, the car is not
(2) The height of the water closet required to be equipped with a car-
shall be 17 inches to 19 inches measured borne device.
to the top of the toilet seat. Seats shall (b) Car Lift—(1) Design load. The de-
not be sprung to return to a lifted posi- sign load of the lift shall be at least 600
tion. pounds. Working parts, such as cables,
523
pulleys, and shafts, which can be ex- ates to ensure that cars do not move
pected to wear, and upon which the lift when the lift is in use.
depends for support of the load, shall (3) Emergency operation. The lift shall
have a safety factor of at least six, incorporate an emergency method of
based on the ultimate strength of the deploying, lowering to ground or sta-
material. Nonworking parts, such as tion platform level with a lift occu-
platform, frame, and attachment hard- pant, and raising and stowing the
ware which would not be expected to empty lift if the power to the lift fails.
wear, shall have a safety factor of at No emergency method, manual or oth-
least three, based on the ultimate erwise, shall be capable of being oper-
strength of the material. ated in a manner that could be haz-
(2) Controls—(i) Requirements. The ardous to the lift occupant or to the
controls shall be interlocked with the operator when operated according to
car brakes, propulsion system, or door, manufacturer’s instructions, and shall
or shall provide other appropria

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49

Containing a codification of documents

A Special Edition of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PRINTING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001

Subtitle A—Office of the Secretary of Transportation ................... 3

Material Approved for Incorporation by Reference ............................ 699

Table of CFR Titles and Chapters ....................................................... 701

Alphabetical List of Agencies Appearing in the CFR ......................... 719

List of CFR Sections Affected ............................................................. 729

To cite the regulations in

to display an OMB control number with their information collection request.

revision dates of the 50 CFR titles.

Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-

Redesignation tables for chapter III—Federal Motor Carrier Safety Administra-

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPOR-

cial assistance ...................................................... 267

(c) The Federal Railroad Adminis- (10) [Reserved]

the Administrator. U.S. airspace;

the development and administration of materials safety concerns, developing

uniform safety standards, and promul- terborne commerce of the United

Special Programs Improvement Act (13) Serving as a focal point within

ties. Office of Civil Rights; the Office of

law; advice and assistance with respect

to uniform time matters; ensures uni- reprogrammings, and allotments; pro-

apportionments, reapportionments, pact on the economy and efficiency of

ministrations to: (3) General Counsel.

or portions of an appropriation from Federal Wage system.

abandonment of railroad service. Secretary by Executive Order 12656 and

by the Federal Emergency Manage- velop and implement affirmative ac-

Dispute Resolution process and to de- or her Operating Administration;

(16) Compromise, suspend collection (b) Except as otherwise specifically

Technology Planning Council. face Transportation Extension Act of

tion 5209, Title V, Subtitle B, Public Transportation Equity Act: A Legacy

the Secretary by: vironmental Response, Compensation,

ber 16, 1990. Stat. 70).

the Secretary by 49 U.S.C. 20134(a) with Highway H–3 in Hawaii.

Act of 1973 (Pub. L. 93–236) as amended the Secretary by section 3 of the

Bridge Act of 1906, as amended (33 tation, relating to the approval of

54757), with respect to rail transpor- transportation and regulation.

(nn) Carry out the functions and ex- (3) 158.

switches; and portation Equity Act: A Legacy for

ity and carry out the functions vested egated by § 1.74(a):

an executive level position that is a

counterpart of an activity or position order, regulations, or instructions of

where specifically limited by law, board of directors, of the United States

rules to be followed by each) of the applying the standard time of any

standard time zone to the movements tervene or appear before courts or

an applicant, decide on requests to in- (r)–(s) [Reserved]

part 7 in connection with the records of Civil Penalties Inflation Adjustment

partmental Executive Resources Board fice.

Public Law 97–177. authentication by seal is required.

tions will indicate the nature and pur- partmental Headquarters.

(No official of the Department of (e) Previous delegations of authority

classify information. sition Act;

1295), as amended; based facilities (33 U.S.C. 1504(h)(2)).

Transportation Security Act of 2002, tions referred to in section 301(a) of the

§ 1.70 Delegations to the Director of Justice in Minority Populations and

Actions To Address Environmental delegated authority to:

highway. commercial motor vehicles; and 5113

rical. The three branches of the figure APPENDIX A TO PART 5